2003 PLP (C (PLC(CS))

Sardar Muhammad Ghazi, Advocate. Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents. Date of hearing: 24th June, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan has been preferred against the judgment dated 20‑11‑2000 passed by Federal Service Tribunal, Islamabad in an appeal filed by the petitioner against his dismissal from service. The petitioner was employed with the Management Organization of Joint Staff Headquarters, (J.S. H.Q) Chaklala Rawalpindi. On report made by Estate Officer, that the petitioner was involved in preparing forged documents for hiring of accommodation for Muhammad Bashir, a technician and his co‑employ, he was proceeded against under Government Service (Efficiency and Discipline) Rules, 1973 for misconduct and on the basis of preliminary inquiry conducted into the allegation, he was issued a show7cause notice proposing major penalty of dismissal from service. The petitioner submitted written reply to the show‑cause notice which was not. found satisfactory and the competent Authority holding him guilty of misconduct dismissed him from service. The allegation against the petitioner was that he was involved in preparing forged documents of House No.250 Lalazar, Wah Cantt. which was hired by Muhammad Bashir, his co employ. Major (Retired) Muhammad Mazhar who was deputed to inquire the matter visited the house in question and on inquiry from Aurangzab, owner of the house, he was told that house was neither being occupied by Muhammad Bashir nor said Muhammad Bashir was known to him and that he had handed over the documents of the house to Abdul Qayyum who intended to hire the house for himself. The owner of house further stated that a cheque of Rs.35,280 was given to him by Abdul Qayyum and that the amount of cheque was subsequently returned by him to Abdul Qayyum. In this preliminary inquiry, Muhammad Bashir stated that out of an amount of Rs.35,280 received by him an amount of Rs.7,280 was given as commission to Abdul Qayyum, for providing him the documents of the house. Precisely the allegation against the petitioner was that he in a fraudulent manner, arranged hiring of house for Muhammad Bashir, his co‑employee, for financial gain. The appeal preferred by the petitioner before Federal Service Tribunal against his dismissal from service vide order dated 22‑3‑1999, was dismissed through the impugned judgment with the observation that the charge against the petitioner was proved beyond doubt. Learned counsel for the petitioner in support of this petition has raised the following contentions:‑ (a) That Muhammad Bashir while appearing in preliminary inquiry before the Inquiry Officer stated that an amount of Rs.35,280 was paid in connection with rent of the house to the owner of the house and on return of the said amount, Rs.28,000 was retained by him whereas an amount of Rs.7,280 was given to Abdul Qayyum whereas according to the petitioner, he while appearing as witnesses in the preliminary inquiry stated that he had obtained a loan of Rs.6,000 from Muhammad Bashir. (b) That the petitioner being co‑worker of Muhammad Bashir arranged for him a rented house owned by Aurangzab, his relative in good faith and without any consideration as the rent of the house was to be paid by the Organization to the owner and petitioner would have no financial gain in the matter. (c) That the amount of rent paid to Muhammad Bashir, on return was deposited by him in full and no loss was caused to the exchequer. (d) That the private transaction between Muhammad Bashir and petitioner would not be definable as "misconduct" under the Government Servants (E & D) Rules. (e) That neither the petitioner was charge‑sheeted nor regular inquiry was conducted as envisaged under the Rules. The learned counsel strongly argued that the petitioner was not provided any opportunity of rebutting the evidence collected in the preliminary inquiry and that the allegation of preparing forged documents and entering into a fraudulent transaction of hiring of a house for Muhammad Bashir, technician for financial gain, were not established on record through a regular inquiry and petitioner was condemned unheard. The learned counsel submitted that unfortunately the competent Authority without observing the procedure provided under the Government Servants (E & D) Rules, 1973 and feeling necessity of providing right of defence to the petitioner, held him guilty on the basis of preliminary inquiry and dismissed him from service. Learned counsel representing the respondents, on other hand, contended that matter was inquired by a Committee consisting of senior officers and that the petitioner was also examined as witness in the preliminary inquiry wherein he admitted that cheque was handed over to him by Muhammad Bashir for its delivery to Aurangzab and that the amount of cheque was returned by said Aurangzeb to him out of which he borrowed an amount of Rs.7,280 from Muhammad Bashir. Learned counsel submitted that in view of the admission made by the petitioner, there was no need of holding regular inquiry and the competent Authority while dispensing, with the requirement of regular inquiry passed the final order, taking into consideration the reply of the petitioner to the show‑cause notice and the evidence brought on record during the preliminary inquiry. In the nutshell, learned counsel argued that proper opportunity was provided to the petitioner to explain his position but he neither ,denied the allegation nor asked for regular inquiry, therefore, holding of such inquiry was not necessary. Learned counsel, however, has not been able to offer any satisfactory explanation that for what reason Muhammad Bashir, the beneficiary of the transaction, was not proceeded against to fix his responsibility in the matter. The perusal of record shows that the preliminary inquiry was held only for the purpose of collecting the evidence in support of the allegation for holding a regular inquiry under the Government Servants (E & D) Rules, 1973. The serving of charge‑sheet with statement of allegation to the petitioner was necessary under the Rules to provide him a fair opportunity to submit reply to the charges. He was also entitled to cross‑examine the witnesses and produce evidence in rebuttal in the regular inquiry and on the conclusion of A the inquiry, the competent Authority in the light of evidence and the findings of Inquiry Officer, cold pass an appropriate order but the, respondent without observing the procedure of inquiry awarded major penalty of dismissal from service to the petitioner on the basis of preliminary inquiry. This is correct that the requirement of regular inquiry can be dispensed with in exceptional circumstances but if the recording of evidence is necessary to establish the charge, the departure from the requirement of regular inquiry under the rules, would amount to condemn a person unheard. The petitioner in the present case was not provided proper opportunity to cross‑examine the witnesses and explain the circumstances under which he associated himself with the transaction through the evidence, therefore, his dismissal from service in, summary manner was violative of principle of natural justice. The contention of the learned counsel for the respondents that the petitioner was employed in an Organization which is part of the Armed Forces and he was supposed to be governed by the rules of the said Organization, therefore, it was not incumbent upon the respondents to strictly follow the procedure provided under the Government Servants (E & D) Rules, 1973, has no substance. The perusal of the documents placed on record on behalf of the respondents (Paper Book No.II) would show that the authorized officer in his note has stated that the petitioner was being proceeded against under the provisions of Government Servants (E & D) Rules, 1973 for misconduct, therefore, without an explicit order of dispensation of the requirement of regular inquiry, the departure from the normal rule was not legal. We having heard the learned counsel for the parties and thoroughly examined the matter, find that the petitioner was dismissed from service without establishing the charge of misconduct by way of holding a proper inquiry and providing him opportunity of hearing. The question whether the transaction in question was a private affair between the petitioner and Muhammad Bashir or it would constitute an act of misconduct, under Government Servants (Efficiency & Discipline) Rules, 1973 would need determination in the light of explanation given by the petitioner. We may point out that Muhammad Bashir who was the real beneficiary of the transaction and main character of the drama was not proceeded against whereas the petitioner who was a middle man, was held responsible. 'For the foregoing reasons, we convert this petition into appeal and allow the same. The judgment of the Service Tribunal is set aside and the appellant is reinstated in service with back benefits. However, the respondents if so advised, shall be at liberty to initiate regular inquiry in the matter and fix the responsibility of the petitioner if any, in accordance with law. There will be no order as to costs. S. A.K./A‑278/S Appeal allowed.