1989 PLP (C (PLC(CS))

Hafeezullah Ex‑Patwari son of Shahabuddin resident of Basti Tharkhanawali, Khudian Town, Tehsil and District Kasur has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974 in which he has impleaded the State through A.C./Collector, Kasur and the Commissioner, Lahore Division as respondents Nos. 1 and 2 respectively.

2. By virtue of this appeal Hafeezullah has prayed that order dated 21‑11‑1984 passed by the Assistant Commissioner/Collector, Kasur dismissing him from service and order dated 7‑5‑1985 passed by respondent No. 2 may be set aside and he be reinstated in service with all back benefits.

3. The facts of the case arc that Muhammad Siddique son of Siraj Din r/o Chathianwala District Kasur presented a written complaint to Tehsildar, Kasur on 31‑5‑1984 alleging that the appellant had received Rs.800 from him as illegal gratification for preparation of Zari Pass Book but despite receipt of illegal gratification the appellant had prepared wrong Zari Pass Book. The Tehsildar, Kasur held preliminary enquiry into the allegation. He recorded the statement of the complainant on 31‑5‑1984 and the statement of the appellant on 2‑6‑1984. The Tehsildar Kasur submitted his report to Assistant Commissioner/Collector (respondent No. 1) on 13‑8‑1984 recommending disciplinary action against the appellant and registration of criminal case against him as according to him the appellant had admitted receipt of illegal gratification before him. On the basis of the report dated 13‑8‑1984 submitted by the Tehsildar, Kasur, A.C./Collector, Kasur (respondent No. 1) issued show‑cause notice dated 19‑8‑1984 against the appellant under Rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The show‑cause notice was issued by respondent No. I as Authorised Officer stating that no further probe into the matter was necessary. In the meanwhile, another person namely Mehmood Khan Lamberdar village Chathianwala, Tehsil and District Kasur presented a written complaint dated 23‑7‑1984 to the Tehsildar Kasur alleging that the appellant had received Rs.343.38 from him as land revenue on 24‑10‑1983 against a proper receipt but he had not deposited the amount in the Treasury and had therefore, embezzled Government dues. The Tehsildar, Kasur recorded the statement of the complainant on 23‑7‑1984 and that of the appellant on 24‑7‑1984. The Tehsildar, Kasur submitted his report dated 5‑8‑1984 to A.C./Collector, Kasur recommending departmental action against him after his suspension and registration of criminal case against him. On the basis of report dated 5‑8‑1984 of the Tehsildar, Kasur, A.C./Collector, Kasur (respondent No. 1) issued another show‑cause notice dated 19‑8‑1984 against the appellant under rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. In this show‑cane notice also respondent No. 1 acted as Authorised Officer stating that there was no necessity to hold further probe in the matter. The respondent No. 1 gave a personal hearing to the appellant on 7‑11‑1984 and passed the impugned order dated 21‑11‑1984 dismissing the appellant from service for misappropriation of Government dues and accepting illegal gratification. The appeal filed by the appellant before respondent No. 2 was rejected by him on 7‑5‑1985. Hence this appeal before this Tribunal.

4. I have heard the learned counsel for the appellant and the learned Deputy District Attorney and have also perused the record carefully with their assistance.

5. In addition to the points relating to the merits of the case, the learned counsel for the appellant raised the following legal issues:‑ (i) The Authority and the Authorised Officer are two different entities performing different functions under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. These different functions cannot be entrusted to or performed by the same person as had been done in this case. In this connection, learned counsel for the appellant relied on case of Muhammad Nawaz v. Secretary to the Government of the Punjab. Agriculture Department reported vide 1981 P L C (C.S.) 194. (ii) The enquiry conducted by the Tehsildar Kasur was not a proper enquiry under Punjab Civil Servants (E & D) Rules, 1975. Neither the Inquiry Officer was appointed by the Authorised officer nor was the enquiry itself conducted in accordance with the procedure prescribed under the P.C.S.(E & D) Rules, 1975. The statements of the complainants were recorded separately behind the back of the appellant and he was not given any opportunity to cross‑examine them. (iii) Although the appellant has been awarded the ultimate penalty of dismissal from service, no regular enquiry was held against him. In this connection, the learned counsel for the appellant relied on case reported vide 1980 P L C (C.S.) 562.

6. The learned Deputy District Attorney adopted the written objections filed by the respondents and submitted that the appeal was without merit and may be dismissed accordingly.

7. On careful examination of the submissions made by both sides and the record of the case, I have come to the conclusion that the appellant was not given a reasonable opportunity to defend himself properly against the allegations of illegal gratification and misappropriation of Government dues and that the n departmental proceedings against him were not conducted in accordance with the provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. In this connection attention is invited to the following main points:‑ (i) The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 prescribed different functions for Authority and Authorised Officer. Therefore, the functions of the Authority and the Authorised Officer should not be performed by the same person. However, in this particular case, A.C./Collector, Kasur (respondent No. 1) issued show‑cause notice against the appellant under Rule 6(3) of the Punjab Civil Servant, (Efficiency and Discipline) Rules, 1975 as Authorised Officer and the same respondent No. 1 subsequently acted as Authority and passed the impugned order dated 21‑11‑1984 dismissing the appellant from service. Although under proviso of Rule 2(C) of Punjab Civil Servants Efficiency and Discipline) Rules, 1975 the Authority may be authorised to act as Authorised Officer", the respondents failed to produce or quote any specific order under which respondent No. 1 was authorised to perform the dual role of Authority as well as Authorised Officer. The performance of this dual role of respondent No. 1 was challenged by the appellant in his appeal before this Tribunal and failure of the respondents to quote any specific order authorising respondent No. 1 to perform these dual functions shows that no such order existed and that this dual role was performed by respondent No. 1 unauthorisedly. Vide 1982 P L C (C.S.) 795, where the same person in the case was "designated" as Authority and Authorised person it was held that the appellant had been deprived of examination of his case at two stages before the appellate stage and therefore, order of dismissal was struck down. (ii) The record of the case clearly shows that the enquiries conducted by the Tehsildar, Kasur were preliminary enquiries and no regular enquiries in accordance with the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Even the preliminary enquiries conducted fly the Tehsildar Kasur were one sided in that the statements of the complainants were recorded by him behind the back of the appellant and he was not given any opportunity to cross examine the complainants. It is one of the fundamental principles of natural justice that parties must tic confronted so that the truth can be sifted by the process of cross‑examination and if this is not done the person complained against would he deemed to have been denied a reasonable opportunity to defend himself. Vide P L D 1962 S C 142, it is not permissible to examine witnesses in the absence of the delinquent. Again, vile P L D 1973 Note 36, it was held that opportunity of defence included the right to cross‑examine the person making adverse report and to produce defence witnesses. (iii) It is crystal clear from the record of the case that no regular enquiry was held into the allegations of corruption and misappropriation against the appellant. In case of Hahib Khan v, Federation of Pakistan reported vide P L D 195.1 Sind 109 it was held inter alia that: "

3. In a case where calling for explanation has not been preceded fly a proper enquiry in the presence of a civil servant mere affording of opportunity to submit an explanation cannot be considered a reasonable opportunity for showing cause. The authority concerned should not only allow an opportunity to the civil servant to meet the charges in writing but should give adequate opportunity to produce evidence to support his contention and refute the charges levelled against him in the usual way by explaining and cross‑examining witnesses and by addressing arguments before the authority concerned." Again in case of Siddique Javid Chaudhry v. Government of the Punjab reported vide P L D 197‑1 S C 393, their Lordships of the Supreme Court of Pakistan have held that it was necessary for the competent authority to hold a regular enquiry where allegations of corruption have been made against the accused.

8. Keeping in view the detailed analysis of the cases given above, I have come to the conclusion that the appellant was not given a reasonable opportunity to defend himself properly against allegations of illegal gratification and misappropriation of Government dues and that in the conduct of the departmental proceedings against him the law laid down by the Supreme Court of Pakistan was ignored. 1, therefore, accept the appeal and set aside the impugned order dated 21‑11‑1984 passed by respondent No. 1 dismissing the appellant from service and the impugned order dated 7‑5‑1985 passed by respondent No. 2 rejecting his appeal. The appellant is reinstated in service. The period between the date of his dismissal and the date of his reinstatement will be decided by the competent authority. The case is remanded to the competent authority with the option to hold a regular enquiry against the appellant in accordance with the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and rulings of the superior Courts including the law laid down by the Supreme Court of Pakistan. There will be no order as to costs. Judgment be communicated to the parties. A.A./244/Sr. P Case remanded.