2004 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, C.J.‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment of the Service Tribunal passed on 20‑2‑2002, whereby while allowing the service appeal of respondent, the order of compulsory retirement passed against him was set aside.

2. The necessary facts, giving rise to the present appeal, briefly stated, are that the respondent was posted as an Accountant in the Industries and Commerce Department of Azad Jammu and Kashmir Government when he was suspended from service on 29‑6‑2001. The Deputy Director, Local Welfare Mirpur, was appointed as an Inquiry Officer. The charge sheet was issued to respondent on 29‑6‑2001 and reply of the same was submitted by him. The case of the respondent is that no evidence was recorded against him nor he was provided an opportunity of hearing during the inquiry or before the issuing of order of compulsory retirement from service passed against him on 3‑9‑2001. In the same way no person was appointed as an authorized officer against him, therefore, the whole proceedings were conducted in violation of the provisions contained in the AJ&K Civil Servants Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as the E&D Rules). The Service Tribunal finally allowed the appeal of respondent vide its judgment dated 20‑2‑2002 on the ground that before retiring him compulsorily from service, which amounted to a major penalty, no show -cause notice was issued to him nor he was granted right of hearing. It is the aforesaid judgment of the Service Tribunal which has been assailed through the present appeal with the leave of the Court.

3. On behalf of the appellants Raja Ibrar Hussain, the learned Advocate‑General, argued that the respondent was guilty of misconduct which is apparent from the charge sheet issued against him and even from the written reply which was submitted by him on the said charge sheet. Therefore, under the scheme of a law he was rightly retired compulsorily from service. According to him the respondent has no legal justification to file an appeal before the Service Tribunal in the circumstances of the case. He further argued that the respondent was provided right of hearing and it has been wrongly held that major penalty was imposed upon him without providing him right of audience by the concerned authority because on the written reply submitted by the respondent herein and on the questions answered; there is a signature‑of respondent. Therefore it could not be said that the proceedings were initiated without giving an opportunity of hearing.

4. On the other hand Ch. Muhammad Ibrahim Zia, the learned counsel for the respondent, by controverting the arguments of the learned counsel for the appellants, submitted that the scheme of law, i.e. the E&D Rules, has not been followed by the competent authority and as such the case was rightly remanded by the Service Tribunal for giving an opportunity of personal hearing to the respondent before imposing major penalty upon him. The learned counsel referred to a Full Bench case of this Court titled Muhammad Shafique Mughal v. Accountant General and another (1996 PLC (C.S.) 766) wherein the relevant provisions of E&D Rules have been discussed with. Rule 8 of the E&D Rules provides as follows:‑‑‑ "Action by the Authority. In the case of any proceedings the record of which has been reported for orders under sub‑rule (4) of rule 6 or rule 7‑A the authority may pass such orders as it deems fit but before imposing, a major penalty, the authority shall afford the accused an opportunity of being heard in person, either before himself or before an officer senior in rank to the accused designated for the purpose after taking into consideration the record of such personal hearing prepared by, the officer so designated." So the binding provisions of the above rule have not been complied with by the authority in the instant case. Therefore, according to the learned counsel the Service Tribunal committed no illegality in remanding the case to the competent authority to issue the final notice and to provide a right of audience to the respondent before imposing the major penalty.

5. After hearing the learned counsel for the parties, it may be stated that time and again it has been held by this Court that if a major penalty has to be imposed upon a civil servant as required under rule 8 of the E&D Rules, the issuance of show‑cause notice to the accused is a mandatory rule of law. In a case reported as Hussain Ahmed Islahi v. Azad Govt. and another (1992 SCR 370), the appellant was not given opportunity of personal hearing which was a mandatory requirement, so the older of major penalty was held to be illegal and invalid. In our considered view the Service Tribunal committed no error in remanding the case to the competent authority for issuing the notice under rule 8 of the E&D Rules before imposing the major penalty to the respondent. The appeal having, no merits in it, stands dismissed. H.B.T./23/SC(AJ&K) Appeal dismissed.