1988 PLP (C (PLC(CS))

It would be well to recall at this stage that the relevant rules in this behalf are rules 5 and 6 of the North‑West Frontier Province Government Servants (Efficiency & Discipline) Rules, 1973. Sub‑rule (2) of rule 5 leaves it to the Authorized Officer to decide whether in the light of the facts of the case or the interest of justice an enquiry should be conducted through an Inquiry Officer or Inquiry Committee; and if he so decides, the procedure indicated in rule 6 shall apply. According to sub‑rule (3) of the same rule, if the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and give him a reasonable opportunity of showing cause against that action. In case where an inquiry officer or an Inquiry Committee, is appointed, the procedure is more formal. According to sub‑rule (1) of rule 6, the Authorised Officer has to frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances, which are proposed to be taken into consideration; and the accused is then required to put in a written defence within a reasonable time of the service of the charge‑sheet upon him, and to state at the same time whether he desires to be heard in person. It is clear that at this stage the explanation required from the accused is only of a preliminary nature; and if he denies the charge or charges, a formal inquiry will follow according to the procedure outlined in sub‑rules (2) and (5) of rule

6. When the Inquiry Officer or the Committee has submitted its report to the Authorised Officer, the matter is governed by sub‑rule (4) of rule 5, which is, in fact, composite rule dealing with both the situations, namely, where an inquiry is held or where it is dispensed with...... The explanation of the accused referred to in sub‑rule (4) of rule 5 cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub‑rule (1) of rule 6, as at that time all the circumstances and evidence to be marshalled against him during the course of the inquiry are not within his knowledge; and he would acquire knowledge thereof only when the evidence has been led and the Inquiry Officer or the Committee has formulated its findings. A proper explanation of the accused officer in such a case can only be furnished if he is supplied with copy of the Inquiry report so as to offer his comments in regard to the findings recorded therein, and the action proposed to be taken against him on their basis ....... It seems, to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held then the authorised Officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before, sending his recommendations to the Authority. This would, of course, necessitate that a copy of the inquiry report' be furnished to the accused officer at this stage, sand he should be apprised of the action proposed against him." "The departure from the principle spelled out in the Supreme Court's judgment will normally render the impugned order without lawful authority thereby entitling the appellant to re‑instatement in service but, considering the fact that the impugned order was passed before the above said judgment was given by the Supreme Court, we remand the case to the competent authority for completing the proceedings, in accordance with the principle laid down in the Supreme Court?s judgment". It is, therefore, clear from the above reference that the claim of the petitioner was not accepted on merits by discussing pros and cons of the allegations which resulted in the inquiry against her. The Inquiry Officer did not follow the rules and appeal was accordingly granted/ remanded with the direction to the respondents to proceed against her in the light of the judgment delivered by the worthy Supreme Court of Pakistan. It shows that she was not honourably acquitted. The respondent Government also did not follow the advice of the Law Department. Section 17 of N‑W.F.P. Civil Servants Act, 1973 proviso (2) deals with such like questions and it is reproduced below: ‑ "Provided further that where a civil servant has, under an order which is later on set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside, of such order be entitled to such arrears of pay as the authority setting aside such order may determine." Authority in the instant case was the Tribunal and not the Head of the Department. But since the Tribunal has not clearly mentioned the amount/salary payable, to the petitioner, the matter was decided by the respondents and she was offered to accept 50$ of the pay for the period she had not actually worked in the department. Now F.R. 54 contained in Fundamental Rules and Supplementary Rules Vol‑I by the Finance Division of the Government of Pakistan 1st Edition (Second pre‑print) provides a guideline to decide the present matter. It reads as under:‑ "When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or When a Government Servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty‑ (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or (b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs." In the case in hand, the petitioner was not acquitted honourably, but following the principle laid down in the judgment of the worthy Supreme Court, her appeal was accepted with the directions to the respondents to proceed against her if they so like. Consequently she was reinstated in service and a de novo enquiry was initiated against her, when she tendered her resignation and left the service. She is, therefore, not entitled to the claim made by her. The result is that the petition fails which is hereby dismissed and the file be consigned to the record room. A. A. /64/ Sr. N?????????????????????????????????????????????????????????????????????? ???? Application dismissed.