1990 PLP (C (PLC(CS))

Subsequently ML047 was issued by the Chief Martial Law Administrator. MLO Zone `C' as a competent authority dismissed, removed or reverted certain persons. The name of Mr. Unar was also found in that list. However, since he had been reverted to Grade-16 under MLO-55 no action was taken against him under MLO-17. Against his name under Notification No. SO(Al) Mis-117/79, dated 6-8-1978 the following remarks were given:- . . t "Mr. Ghulam Nabi Unar, EADA (E&M) stands already reverted to Grade-16 vide this Department Notification No. SO(AI) Misc. 117/78, dated 1-8-19',

78. Subsequently under Notification No. SO(AI) Misc-117/78, dated 22-2-1979 the abovementioned Notification dated 6-8-1978 was withdrawn and the officers/officials who were dismissed, removed from service or reduced in rank were reinstated in their respective appointments. The intervening period from 6-8-1978 to 22-2-1979 was to be decided later on." It is thus clear that the stand taken by the Government was that the appellant was punished only once by the order contained in the impugned notification. According to the Government it was incorrect to say that any punishment was awarded to the appellant by notification dated 6th August, 1978. All that notification shows is that as he already stood reverted to Grade-16 as per notification dated 1-8-1978, no further action was taken against him. The plea taken by the Government was that the appellant's reversion was the result of the review of his ad hoc promotion to Grade-17 under MLO-55 and as such it had nothing to do with any disciplinary action taken against him. It was further argued on behalf of the official respondents that whatever action was taken in pursuance of the notification dated 6th August, 1978 was nullified by withdrawal of the said notification by subsequent notification dated 22-2-1979 and consequently the officers/officials who were dismissed, removed from service or reduced in rank were reinstated in their respective appointments. In view of the above arguments advanced on behalf of the official respondents, we are satisfied that no punishment was inflicted on the appellant by notification dated 6th August, 1978 and as such the grievance of the appellant based on the principle of double jeopardy had no force in it. We are further fortified in this view by the fact that the appellant did not take any step to challenge the order contained in the said notification dated 6th August, 1979 of so-called punishment before any authority. Before grappling with the merits of the case we are constrained to observe that in this case the departmental authorities have, unfortunately, set a precedent of the height of red-tapism, lethargy and callousness. At least more than a decade was spent only in taking decision as to the ultimate punishment awarded to the accused official, little realising what hardships he would suffer during the intervening period. Admittedly the charges against the appellant for which he had been punished related to the period when he was posted as Farm Superintendent at Ghotki. It is not denied that he worked in that capacity for less than six months i.e. from 30-10-1974. But the departmental authorities took more than five years to decide about the desirability of initiating disciplinary proceedings against the appellant. There is absolutely no explanation on the record as to why so much delay was made in initiating the action against the appellant, as the formal show-cause notice in respect of the charges in question was given to the appellant only on 12th November, 1979. Even if allowances is made for usual red-tapism prevailing in the Government offices, still it would be difficult to justify the inordinate delay that was made in taking the action against the appellant. The alleged acts of omission and commission attributed to the appellant took place as far back as 1973-74. Apart from above, we have come across another gap of time equally unjustified that the departmental authorities let pass. Following the judgment of this Tribunal dated 14th March, 1982, the action to be taken in the light of the observations made in the said judgment was deferred again for more than five years, as the so-called final show-cause order was issued on 19th May, 1987. Thus right from 1973 to 1987 (14 years) the Sword of Damocles kept hanging over the head of the appellant. This factor by itself is apt to create serious misgivings in the reasonable mind about the bona fides of the concerned authorities. Let us now proceed to consider the charges against the appellant one by one. The show-cause notice dated 12th November, 1979 which contains the charges against the appellant relating to the period of his posting as Farm Superintendent, Ghotki reads as under: "(i) That you were Farm Superintendent, Ghotki, from 30-10-1973 to 24-4-1974 but could not exercise your authority on your subordinate staff resulting in the theft of farm produce. (ii) That you never cared to physically verify agriculture machinery in the farm from the relevant register or reported to the concerned authority of Building Department, for proper maintenance of Farm Buildings. (iii) That during your tenure there was excessive expenditure of Rs.3,421 and 5,420 on P.O.L. charges. (iv) That the average yield of cotton was only 2 maunds per acre during your tenure as compared to minimum of 8 maunds per acre in the locality." As for the first charge that the appellant could not exercise his authority over his subordinate staff, as a result of which, theft of farm produce was committed, it would suffice to say that the charge is vague on the face of it. There is no elaboration of the charge which farm product and how much quantity thereof was stolen nor any indication is available to show which of his subordinate staff was responsible for committing such theft. Moreover, the appellant has denied this charge vehemently in his reply dated 21st November, 1979 adding further that his efforts to maximise the production were frustrated on account of non-cooperation of the then Deputy Director, Agriculture, Khairpur Division. In support of his contention he has referred to certain correspondence mentioned in his reply. Like first charge, the second charge that the appellant never cared to physically verify the agricultural machinery in the Farm from the relevant registers nor reported to the concerned authority of the Building Department for proper maintenance of Farm Building is also too vague to need any detailed comments. This charge has also been denied by the appellant in his reply referred to above. He has, on the contrary, stated in his reply that he visited and verified the machinery on every alternate day. In this connection also he has relied upon certain correspondence specified in his reply. As stated in second para of this charge though the appellant did not approach the Building Department for proper maintenance of Farm Building, yet he has furnished his explanation that it was due to lack of funds and moreover the condition of the building was not so deplorable during the period of his posting. The third charge against the appellant was that during his tenure there was excessive expenditure on P.O.L. charges. This charge has also been denied by the appellant. His explanation was that the withdrawal of the amounts during the months of February and March, 1974 was due to outstanding arrears of P.O.L. which was noted even by the Deputy Director, Agriculture, Khairpur himself during his visit to the farm in para.3 of his visit note. The 4th and last charge levelled against the appellant was that average yield of cotton was only two maunds per acre during his tenure as compared to the minimum of 8 maunds per acre in the locality. This charge has also been denied by the appellant in his reply. According to him the yield of every crop depends on: (i) purity health and germination percentage of seed used, (ii) time of sowing, (iii) method of sowing, (iv) use of fertilizers, (v) eradication of weeds, (vi) use of plant protection measures and (vii) the farmer cultivating the crop. Therefore his explanation was that he could not be made responsible for all these factors, as the process of cultivation had taken place before he took over as Farm Superintendent at Ghotki. The allegations contained in show-cause notice are obviously of factual nature. Unless they are admitted by the appellant they have got to be proved by positive evidence. As slated above the appellant vehemently denied the said allegations. Despite his denial no step was taken to bring necessary evidence on record to prove the allegations. At this stage it may be pertinent to refer to sub- r rule (4) of Rule 5 of the said Rules. 1t reads as under: "(4) On receipt of the report of the Enquiry Officer or Enquiry Committee or where no such officer or committee is appointed, on receipt of the explanation of the accused if any, the Authorised Officer shall determine whether the charge has been proved The above sub-rule clearly shows that in the case where no enquiry was instituted, the Authorised Officer had to determine from the explanation furnished by the accused official if the charges levelled against him were proved and it was after such determination that he would proceed to impose minor penalty himself or recommend for. awarding major penalty, to the Authority. The question would arise it the requirement of above rule had been fulfilled before the impugned penalty was imposed on the appellant. In other words we had to see if the charges contained in the show-cause notice reproduced above had been proved against the appellant. As pointed above charges levelled against the appellant were merely allegations of factual nature. In view of appellant's denial of the charges it was necessary to produce evidence to prove the same. But no such evidence was forthcoming on the record. In these circumstances it is difficult for us to hold the charges as proved. In view of this finding the appellant cannot he punished merely on the basis of vague allegations. Consequently the impugned order by which the appellant has been punished is not sustainable. For above reasons we allow the appeal with no order as to costs and set aside the impugned order. H.B.T./223/Sr. S Anneal allowed