2005 PLP (C (PLC(CS))

Date of hearing: 23rd October, 2003. JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).‑ The facts in nutshell giving rise to the present appeal are that appellant while posted as Food Inspector, District Thatta was served with a show cause notice dated 22‑5‑2001 issued by the Deputy Director Food, Hyderabad Region/Authorized Officer, alleging therein that appellant had purchased wheat beyond the target, viz 1048 Tons, other than the area of the centre. In his reply, appellant denied the allegation vehemently and explained his position. His reply was not found satisfactory and after affording him personal hearing, he was awarded major penalty of Dismissal from Service vide order dated 21‑6‑2001 by the Deputy Director Food, Hyderabad Region. Feeling aggrieved, he preferred departmental appeal to the Director Food, Govt. of Sindh, Karachi, which by order dated 1 2‑2002 was dismissed. Hence, this appeal.

2. In support of the appeal, learned counsel for the appellant mainly contended that the impugned order on the face of it is illegal; ab i nitio null and void as the Respondent No.2 acted in dual capacity of 'Authorized Officer' and the 'Authority', Therefore, on this score alone the impugned order is liable to beset aside. Next, it is contended that in the show‑cause notice only one allegation of purchasing wheat beyond the target from the area other than the centre was leveled, whereas in the original impugned order dated 21‑6‑2001 three other allegations were mentioned which were not the part and parcel of the show‑cause notice. The impugned order thus was passed without considering the material on the record and cannot be sustained.

3. In rebuttal, learned Asstt. A.G submitted that purchase of wheat beyond the target especially from the area other than the prescribed centre being in violation of the Food Department's policy of which the appellant was fully aware but instead he violated the department's policy and being guilty of misconduct was rightly awarded the penalty of dismissed from service, which calls for no interference.

4. We have considered the above submissions and perused the material placed on the record. There is no denial of the fact that Deputy, Director Food, Hyderabad Region (Respondent No.2) acted in dual capacity. Firstly by issuing show‑cause notice to the appellant he assumed the role of 'Authorized Officer' and then awarded major penalty of dismissal from service to appellant by acting as 'Authority'. Under rule 5(4)(a) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Authorized Officer is competent to impose minor penalty as described in rule 4(a) of Rules ibid, but not competent to impose major penalty as described in rule 4(b) of the Rules. Under rule 5(4)(b) of the Rules, it was obligatory upon the 'Authorized Officer' to forward the case to Competent Authority along with his recommendation, which exercise was not undertaken in the case in hand. In such circumstances, the order imposing major penalty of dismissal from service awarded to appellant being illegal, ab initio null and void, coram non judice can not be sustained/maintained.

5. So far merits of the case are concerned, allegation against I appellant was that he had purchased the wheat beyond the target, fixed and that too from the area other than the prescribed centre, which the appellant denied vehemently. No material with regard to fixation, of target for appellant has been produced. There is also nothing on the record to indicate if the appellant had purchased any wheat from the other area. In the absence of, any such incriminating material, merely on B presumption and assumptions no one can be held guilty.

6. For the aforesaid reasons'‑the impugned orders dated 21‑6‑2001 and 7‑2‑2002 are set‑aside. The appeal stands allowed and the appellant is directed to be re‑instated in service. The intervening period be treated as 'leave if due'. Parties to bear their own costs.

7. Announced in open Court H.B.T./14/KST Appeal allowed.