2005 PLP (C (PLC(CS))

3. The Counsel for the appellant states that the impugned order passed under rule 10‑A of the E&D Rules was illegal and relied in this regard on 2003‑PLC‑(C.S.) 1252 and 1986‑SCMR 1875; that there was' no material against the appellant to warrant the impugned penalty; that the' appellant was put to cross‑examination in the inquiry which was wrong; that the appellant could at best be charged with irregularities for which the punishment given to him is too harsh. The appellant's counsel further argues that Bakht Ali and Hussain Ali who too were charged with similar lapses as the appellant and had filed Appeals Nos.255 of 2002 and 252 of 2002 have been reinstated during the pendency of their appeals and the appellant, he argues, deserves same treatment under the principles of consistency. The A.A.‑G. supported the impugned order.

4. The appellant and 3 others faded a joint inquiry before the same Inquiry Officer for identical charges. One of the accused Mr. Hussain Ali the then Director Labour was in BS‑19 and for him, Chief Secretary, was the authorized officer. The Secretary Labour forwarded to the Chief Secretary the draft show‑cause, notice to be served on all the accused officials by the Chief Secretary as authorized officer under rule 5 (6) E&D Rules. Instead, the Chief Secretary nominated the Secretary Labour as the authorised officer. The respondent No.2 states in his written statement that the Chief Secretary nominated the Secretary Labour as authorized officer with the approval of competent authority. No such order of the competent authority has been produced before us; nor is it available on the record.

5. Rule 5 (6) E & D Rules reads: "If two or more civil servants are proceeded against jointly, the authority or authorized officer in respect of the senior most civil servant amongst them shall be the authority or authorized officer, as the case may, in respect of all such civil servants." The rule, as its plain reading would bear out, is mandatory and does not permit the authorized officer so designated to delegate his role to another person, the competent authority's order to the contrary, notwithstanding.

6. Thus, the Chief Secretary being an authorized officer for Hussain Ali who was the senior most official amongst the accused had to act as authorized officer in respect of all the four involved as they were in the joint inquiry. It must be emphasised that the Secretary Labour whom the Chief Secretary nominated to act as authorized officer, was not competent to act as such in respect of accused Hussain Ali, as BS‑19 officer.

7. The Governor who in the absence of Chief Minister exercised the powers of authority, has invoked rule 10‑A (E&D) Rules to impose the major penalty of removal from service on the appellant. The said rule is reproduced below:‑ (1) The Chief Minister‑or any officer or authority empowered by him may call for and examine the record of any proceeding under these rules for the purpose of satisfying himself as to the correctness or propriety of any finding, penalty or order in, irregularity of such proceedings. (2) After examining the record under sub‑rule (1), the Chief Minister or any officer or authority, empowered by him, as the case may be, may direct further inquiry into the, charges from which the civil servant has been exonerated, or may exercise any power of appellate authority. Rule 10‑A could be invoked only to examine the propriety of a final finding of penalty. The case before us had not reached that stage. The authorized officer proposing a major penalty of reduction in time scale for a period of two years referred the matter under rule 5(4)(b) E&D Rules to the authority for orders as deemed fit. The Governor was not bound by the recommendation of the authorized officer. He could have awarded any penalty permissible under the E&D Rules 'without taking recourse to rule 10‑A.

9. Nomination of Secretary Labour as authorized officer by the Chief Secretary and invocation of rule 10‑A vitiate the entire proceedings under the E&D Rules and are rendered patently void and nullity in law.

10. From among his three colleagues charged with similar allegations which were inquired into by the same Inquiry Officer who found them guilty, the two Rakht Ali and Hussain Ali have since been reinstated in service Hussain Ali and the appellant got identical punishment viz. removal from service. The appellant's Counsel has produced a copy of the Government of Sindh Notification NO.SO- III(S&GAD) 3‑101(2000) dated 27th March, 2004 to the effect that the "Chief Minister Sindh has been pleased to review orders of removal from service in respect of Mr. Hussain Ali, Ex‑Joint Director Labour. And reinstate him in service with immediate effect" The Counsel pleads for similar dispensation for the appellant in the interest of principles of consistency, and refers to the case laws reported in 2004 PLC (C.S.) and 1995 SCMR 723 in support of his plea.

11. The Deputy Director Administration Labour Department appeared before the Tribunal on 14‑4‑2004. He confirmed the re instatement of Hussain Ali. He informed the Tribunal that the case of the appellant was identical to that of Hussain Ali and that neither the witnesses were examined in presence of the appellant nor was the latter allowed an opportunity of cross‑examination. This leaves little justification, if any, for the maintenance of punishment awarded to the appellant. Its sustainability, in view of the facts and circumstances of the case, will be contrary to the dictates of justice and equity.

12. We are left with no alternative but to allow the appeal and rescind the impugned order resulting in the reinstatement of the appellant. No order as to costs. H.B.T./26/KST Appeal allowed.