1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑While in service as Gunman/Naib‑Qasid at the National Savings Centre, Rabwah, District Jhang, the appellant was served with show‑cause notice dated 25‑8‑1988 under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, where it was alleged that on 8‑8‑1988, he had given a beating to Mr. Muhammad Abbas Maan, Upper Division Clerk during office hours in the presence of Officer Incharge of the Centre and other members of the staff, when he was requested by Mr. Maan to stitch some packets of currency notes. It was further alleged in the notice that he "spoiled the office decorum" by obeying the orders of his senior official.

2. This notice was the result of a complaint made by Mr. Muhammad Abbas Maan on 8‑8‑1988 to the Directorate of National Savings, Faisalabad through the Officer Incharge of Rabwah Centre. Details are unnecessary. It Win be sufficient to mention that in this complaint it was alleged by Mr. Maan that the appellant abused him and gave him a beating during office hours at about 1‑50 P.m., when he was requested to stitch some currency notes. The complaint was despatched to the Directorate at Islamabad by the Officer incharge with the observations that the appellant was guilty of insubordination and that his conduct in the office was undesirable.

3. It appears from the record that on receipt of this complaint, a note was put up before the Assistant Director of the Headquarters (respondent No.2) by the concerned Assistant where it was proposed in the background of the aforementioned facts, that an inquiry should be made into the allegations against the appellant. It was further proposed that Mr. Muhammad Saleem,. Deputy National Savings Officer may be appointed as Inquiry Officer. The proposal was approved by respondent No. 2 on 10‑8‑1988. The aforementioned Mr. Saleem accordingly conducted a preliminary inquiry where he held the appellant guilty of misconduct. The report is not before us but the Inquiry Officer appears to have found that the allegations against him were correct.

4. On receipt of the report, respondent No. 2 who acted as an Authorised Officer gave a background of the facts of the case and observed that the appellant was proved to have given fist‑blows to Mr. Maan. On this finding it was decided that he should be served with a show‑cause notice under rule 5(1)(iii) of the Rules which, as we have already noticed, was done on 25‑8‑1988. It may be mentioned that it was apparently on the basis of the findings in the fact‑finding inquiry that the Authorised Officer came to the conclusion that no regular inquiry need be conducted in the light of the facts of the case and that summary procedure laid down under rule 5(1)(iii) of the Rules was justified.

5. The appellant submitted an explanation in writing in response to the show‑cause notice on 1‑9‑1988. He denied that he had given Mr. Maan a beating. Although the explanation involves an admission of the fact that there was a quarrel between the appellant and Mr. Maan, but the defence version was that Mr. Maan was the first to abuse the appellant. It was pleaded that the appellant did not refuse to obey his orders, but he only proposed that he will do the needful after the office hours when there will be no public dealing. It was further pleaded that it was not his duty as Gunman to stitch the currency notes.

6. The record of proceedings in the matter shows that the appellant's explanation was examined in the first instance, again by the concerned Assistant who stated in his lengthy note that he was proved to have been guilty of misconduct and that the allegations against him were correct. This note was approved by the Administrative Officer and then put up before the Authorised Officer who ordered on 7‑9‑1988 that the appellant may be called for personal hearing on 17‑9‑1988.

7. After an opportunity of personal hearing was availed of by the appellant, he was dismissed from service by order dated 29‑9‑1988 which purports to have been issued by the Authorised Officer. It however, said that it was being done with the approval of the competent Authority.

8. In the background of these facts, the appellant came to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 after fulfilment of statutory requirement of a departmental appeal, where it was prayed that the impugned order of his dismissal from service dated 29‑9‑1988 be set aside as illegal.

9. We are of the view that proper procedure has not been observed by the Authorised Officer in this case. There is substance in the contention that the appellant cannot be said to have been given an opportunity to defend himself against the action proposed to be taken against him. Rule 5(1)(ii) provides that the Authorised Officer shall decide whether in the light of facts of the case or the interest of justice, an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so desires, the procedure indicated in rule 6 shall apply. Sub‑rule (iii) lays down that if the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall (a) by order in writing, inform the accused of the action; and (b) give him a reasonable opportunity of showing cause against that action.

10. Whether an inquiry should or should not be conducted, depends upon the circumstances of each case. The Authorised Officer is no doubt empowered to decide whether such an inquiry is required either in the light of the facts of the case or in the interests of justice. However, his decision is open to judiciary scrutiny and the Tribunal is within its jurisdiction to decide whether his decision is justified under the circumstances of the case.

11. We are of the considered view that an inquiry into the matter should have been held in this case in the interests of justice. The Upper Division Clerk Mr. Muhammad Abbas Maan had made certain serious allegations of fact against the appellant in his complaint dated 8‑8‑1988. This complaint made a basis for initiation of disciplinary proceedings. In his explanation in writing, the appellant not only denied the correctness of allegations made against him, but also came forward with a counter version where it was alleged that it was Mr. Maan who started the quarrel by giving him abuses. In any case, as we have already mentioned before, Mr. Maan's complaint was that he was not only abused by the appellant but also given a beating in the presence of the staff members. We feel there is no reason why correctness or otherwise of these allegations should not have been enquired into by an Inquiry Officer. It was a case where a regular inquiry should have been conducted, on account of the nature of allegations, with the appellant's association, so that he would have had the opportunity of not only cross‑examining the witnesses, but also produce evidence in defence. It has not been done, and it is not possible for us to say that the Authorised Officer's dispensation in this case was in the interests of justice.

12. There is no doubt about the fact that a preliminary fact‑finding inquiry was conducted in this case. But there is nothing on the record to show that the appellant was associated with this inquiry. The result is that while adopting the summary procedure as laid down in rule 5(1)(iii), the Authorised Officer was influenced by the findings of the Inquiry Officer who did not associate the appellant with his proceedings. If this procedure of preliminary fact‑finding enquiry be upheld as correct in every case, we are afraid that there will hardly be any occasion to press the provision of rule 6 of the Rules into service, which requires the framing of a charge and its communication to the accused together with statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. Preliminary inquiry report in this case did not constitute a fact which could have justified the Authorised Officer's decision that no regular inquiry was required.

13. The Supreme Court's authority in the case of Lal Muhammad and another v. Government of Sindh (1980 SCMR 850) is relied upon in support of this view. Reliance is also placed on this Tribunal's judgments in the cases of Mr. Muhammad Arif Goraya (1989 PLC (C.S.) 828) and Mr. Rafaqat Ali v. Superintending Engineer, Circle‑III, Electricity WAPDA and another (1990 PLC (C.S.) 533).

14. The respondent's learned counsel has referred us to a document at Annexure B filed with the written statement. It appears to be an apology in writing purporting to have been made by the appellant on 8‑8‑1988, the date on which the incident took place. In the margin of this document, we see a note to the effect that some sort of conciliation was brought about between the parties involved and that the appellant will not misbehave in future. It was contended by the respondent's learned counsel that this apology in writing was enough to establish that he had been guilty of misconduct which obviated the necessity of a regular inquiry. It was further contended that this apology did constitute a fact which led the Authorised Officer to the decision that no inquiry need to be conducted into the matter,

15. However, it was contended by the appellant's learned counsel that this document was not of any value. He submitted that the appellant was made to execute this "Mazarat Nama" under compulsion and in consequence of misrepresentation that no further proceedings will be held. It is not necessary to go into the merits of whether the appellant voluntary submitted this apology in writing. Here again there are two different versions and we are of the view that the merits or otherwise of this document should be left to the determination of the Authorised Officer after a regular inquiry. The Inquiry Officer will, amongst other things, examine whether the appellant voluntary executed this document or he was led to it either by force or misrepresentation. In any case, we are not inclined to agree that this document is enough to constitute a circumstance which could have justified the adoption of a summary procedure, more so when the appellant appears to have been led to it on an understanding that no further proceedings will be held against him.

16. For these reasons, the appeal is accepted and the impugned order dated 29‑9‑1988 is set aside. The appellant shall be reinstated in service, but the respondents shall initiate disciplinary proceedings against him afresh by adopting the procedure laid down in rule 6 of the rules and then pass any order in accordance with law, including that of suspension from service. There will be no order as to costs. A.A./741/Ser.F Appeal accepted.