2007 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

This is an appeal under section 4 read with section 2/2-A of the Service Tribunals Act, 1973, filed by Mr. Aftab Ahmed Kolachi (hereinafter called as the appellant) against his dismissal from service, vide order, dated 28-9-2002 passed by the Director, E&D, Zarai Tarraqiyati Bank (hereinafter called as the respondent No.2), praying to set aside the same and to reinstate him in service; with all consequential benefits.

2. The facts which form the background of this appeal shortly stated to be are that the appellant was initially appointed on 25-9-1984 as E.A.D. and A.D.B.P. now Zarai Tarraqiyati Bank Limited in BS-16 on regular basis. He was promoted in the year 1990 as Assistant Director in BS-17 on regular basis. He was lastly transferred as C.O.D., A.D.B. P. Chowk Munda Branch, Muzaffargarh Region from where he was dismissed from service. It is contended that during the entire tenure of his 18 years of service, the appellant maintained a spotless service record and exhibited high degree quality and calibre in evolution of the performance to the extent of efficiency, honesty and integrity. He was never communicated any adverse remarks and was not even given a simple ensure as he all .along performed his duties to the entire satisfaction of the administration of the A.D.B.P. In the year 1999, the appellant as usual was performing his duties as E.A.D. in the office of the Regional Manager, Dadu which is under the direct administrative control of senior most J.D. Efficiency and Disciplinary Brach, hereinafter called as the respondent No.3, when he was called by the Regional Manager hereinafter called as the respondent No.4, who issued him a charge-sheet along with a statement of allegations in respect of irregularities committed by him during the tenure of his posting as Manager, A. D.B.P., Seeta Road Branch. The appellant submitted reply to the said charge-sheet to the Enquiry Officer vide a letter dated 7-4-2000. It is alleged that the Enquiry Officer conducted a partial inquiry and reported to head office (the respondent No.1). It is further alleged that the appellant was not afforded any chance of personal hearing by the respondent No.4. However after the withdrawal of disciplinary powers from the regional managers all the cases pending enquiry were transferred to Efficiency and Disciplinary Branch, w.e.f. 28-9-2000 whereafter the senior most J.D. (respondent No.3) was delegated with the disciplinary powers as "Authorized Officer" to enquire into the case of the appellant hi his capacity as Authorized Officer, the respondent No.3 issued a show-cause notice to the appellant on the basis of inquiry report dated 29-4-2000. The appellant replied to the said show-cause notice vide letter, dated 10-3-2001 containing comprehensive explanation. However, the appellant vide a letter dated 22-8-2002 was called for his personal hearing before the respondent No.3 at 26-3-2002 but neither final show-cause notice was issued to the appellant nor he was given a practical personal hearing and was ultimately dismissed from service vide the impugned dismissal order giving rise to the, present appeal. It has been alleged by the appellant that the decision given by respondent No.2 in imposing major penalty on the frivolous and misguiding recommendation of respondent No.3 in not holding regular de novo inquiry is illegal and without jurisdiction. It is further alleged that the respondent No.3 had dispensed with regular inquiry procedure without airy cogent reason particularly when the delegations of power were illegally revised and the jurisdiction of respondent No.4 being the "Authorized Officer" had been dispensed with. It is, therefore, contended that all the acts, deeds and orders including the issuance of charge-sheet, appointment of Enquiry Officer, etc. passed against the appellant by the respondent No.3 in his capacity as "Authorized Officer" are void, ab initio and illegal. It is also alleged that no opportunity of personal hearing was afforded to the appellant by the respondent No.4 before passing order of dismissal of the appellant and therefore, the dismissal of the appellant is illegal because a personal hearing, which is a part of reasonable opportunity granted by the Constitution, was not given to the appellant by the respondent No.4 at initial stage. It is also alleged that no regular inquiry was conducted against the appellant by the respondent No.3 after having assumed position as "Authorized Officer" but the respondent No.3 had relied upon the enquiry report, which was prepared by respondent No.4 and it is, therefore, submitted that such inquiry is ex parte and void and the appellant could not avail any opportunity to cross-examine the witness produced against him during such enquiry nor was allowed to produce the witnesses in his defence. It is further submitted that the appellant was not given an opportunity to defend himself against his dismissal as a show-cause notice was straightaway issued to him by respondent No.3 regarding former's dismissal from service without considering the possibility of existence of an exulting factor. It is further contended that under the E&D Rules two alternative procedures were opened to the respondent No.3 either to appoint the Enquiry Committee or to inform the appellant of the action proposed and give him opportunity of hearing. It is submitted that both the procedures cannot be adopted simultaneously but only one is to be chosen for observance. It is further contended that the Mukhtiarkar of Revenue Department, who are Custodian of Revenue Record, had issued Agricultural Passbooks in question, in favour of borrowers alter verification of such record, as there Pore, the appellant has nothing to do with any such passbook.

3. The respondents filed written comments alleging therein that the service record of the appellant during his entire tenure of service had been blemished and chequered. It is further contended that a charge-sheet dated 13-1 1-1999 was issued by the Authorized Officer under A.D.B.P. (E&D) Regulations, 1975 and Mr. Altaf Ahmed Memon was appointed as an Enquiry Officer who was subsequently replaced by Mr. B.A. Nindwani on 1-2-2000 mainly because Mr. Altai Ahmed Memon had shown his inability and reluctance to conduct the Inquiries. It is further contended that the appellant had not tendered any written reply to the charge-sheet to the Enquiry Officer despite of issuance of notice dated 4-2-2000 by the Enquiry Officer and as the appellant did not participate in the enquiry proceedings, the inquiry was conducted, ex paste and was finalized in a fair and impartial manner. It is further pleaded that the penalty of dismissal was imposed on the appellant after affording him a personal hearing by the Authorized Officer on 26-8-2002 as the reply of the appellant in last para of his reply dated 10-3-2001 to the effect that minor procedural lapses occur in business amounts to an admission on the part of the appellant. It is further submitted that there is no concept and provisions under E&D Regulations, 1975 (Statutory Rules) for issuance of a final show-cause notice. It is alleged that the appellant was found involved in financial irregularities relating to disbursement of .amount Rupees 4.737 millions and thereby caused financial loss to the public exchequer. It is further submitted that the appellant was imposed penalty on the basis of proved charges for sanctioning of loan against fake passbooks as well as insecure /reckless lending to borrowers. It is further contended that the penalty of dismissal Prom service was imposed on the appellant by the Authorized Officer on the basis of documentary evidence and finding of the Enquiry Officer; which are fair and impartial.

4. We have heard the learned counsel for both the parties at length and have also, gone through the entire material available on record including the authorities cited at the Bar.

5. The dismissal of the appellant has been assailed mainly on the ground that the appellant was not afforded any sort of opportunity in any shape to defend himself by way of holding proper and legal inquiry. In this respect, the contention of the ]earned counsel for the appellant is two-fold firstly; that no enquiry at all was conducted to ascertain the truth or otherwise; of the allegations levelled in the charge-sheet because the appellant was never intimated about holding of any .inquiry against him as such question of his participating in any such inquiry does not arise and secondly; that it at all any such inquiry was held the same shall be treated as ex paste as the appellant had no knowledge about any such inquiry with the result no prosecution witness was examined in presence of the appellant who was consequently not afforded au opportunity to cross-examine any such prosecution witness during the alleged inquiry which is again illegal acid against the principles of natural justice. It is, therefore, argued that no inquiry at all was conducted against the appellant who was further not afforded any practical chance of personal hearing by the competent authority before imposing the major penalty of dismissal from service, which is illegal as well as against the principles of natural justice. In support of his contention that the dismissal of the appellant in such circumstances is illegal and cannot legally sustain, the learned counsel for the appellant has relied upon the case-laws reported as PLD 1973 SC 236, 1985 SCMR 1178, 1986 SCMR 962 and PLD 1979 Lah. 690.

6. As against this while defending the impugned order of dismissal of the appellant, it has been contended on behalf of the respondents that the order of dismissal was passed after holding a proper inquiry for which the appellant was issued a proper notice but as the appellant deliberately failed to participate in the inquiry the same proceeded ex paste with the result the charges of misconduct levelled against the appellant were fully established during the said inquiry, finally led to his dismissal from service.

7. The allegations against the appellant in nutshell are that the appellant had sanctioned about 182 loans against fake and forged passbooks deliberately knowing the facts that such passbooks were false and fake. Irrespective of the gravity of the charges, first of all, it is the legal right of an employee to defend him in case he is charged with any act of misconduct and such act of misconduct is further required to be proved during an independent and impartial inquiry. Of course it has been contended on behalf of the .respondents that a proper notice was issued to the appellant to attend the inquiry but a perusal of record clearly contradicts it inasmuch as there is nothing on record to show that the appellant was ever served with any such notice prior to holding of an inquiry against him. Thus, when the appellant had no knowledge about the holding of any such inquiry, the question of his participating in any such inquiry becomes irrelevant and the entire inquiry proceedings which are held/conducted ex parse in absence of the appellant have no legal effect so far the present appellant, is concerned. It is not known as to what is the mode of serving the notice of inquiry on the appellant. If at all, it was served personally there should be some endorsement from the appellant on record for having acknowledge about any such notice, which is missing if at all, it is believed that any such notice was sent to the appellant by registered post or courier again there should have been any sort of such postal or courier receipt to show that the notice in question was actually severed on the appellant but again there is no such receipt to show that the notice of inquiry was actually served on the appellant. The burden is on the respondents to establish such service of the notice on the appellant that the respondent have failed to establish it and, therefore, the inquiry, if any, held against the. appellant would be treated as illegal and ex parte. Since the appellant was not afforded with any opportunity to cross-examine the prosecution witness and defend himself during such inquiry it cannot be said that a proper, legal and fair opportunity was afforded to the appellant to defend himself during the inquiry before imposing the major penalty of dismissal from service. Excluding the enquiry proceedings, nothing remains against the appellant to hold him guilty except the result of preliminary inquiry but it has been repeatedly held by the Honourable Supreme .Court of Pakistan in a number of casts that merely on the basis of a preliminary inquiry particularly when no chance was provided to the accused to cross-examine the witnesses, the charge cannot be held to, have been established against any such accused. Reference in this respect be made to the case-laws reported as 1997 TD (Service) 346 2002 SCMR 1004=2002 PLC (C.S.)

960. Since it is specifically alleged in the charge-sheet that the appellant had sanctioned loans against fake and 1'orgcd passbooks knowing that the said passbooks were false and fake, it was necessary for the Enquiry Officer to give a specific finding in the Enquiry Report as to whether the appellant had any knowledge about the fact that the passbooks in question whereupon the loans were sanctioned were rake and false but perusal of the enquiry report dated 29-4-2000 available on record prepared by Mr. B.A. Nindwani the Ex-Enquiry Officer clearly shows that there is no. finding to the effect that the appellant knew the fact that the passbooks in question against which the loans were sanctioned were in fact false and fake. Of course, the appellant made an admission to the effect that minor procedural lapses occur in business but against such admission does not amount to an admission of guilty on the part of the appellant mainly because it says about the minor procedural lapses and nowhere it is admitted that the appellant committed airy major lapse deliberately during the course of official business.

8. It would not be out of place to mention here that while granting pre-arrest bail to the appellant the learned Public Prosecutor Mr. Mukhtar Channa had also conceded that out of 93 passbooks 46 and their related papers were found genuine by the concerned Mukhtiarkar and the others were under investigation and examination before the concerned Mukhtiarkar as to their genuineness. Such-bail order dated 12-7-2003 is available on record as Annexure IV. We are unable to understand as and when 46 passbooks and their related papers were found genuine by the concerned Mukhtiarkar, how the present appellant could be held liable for having knowledge that the said passbooks were false and fake. The enquiry report further shows that the defence of the accused as replied by him in response to the charge-sheet was not at all considered while ,giving the findings in the enquiry report. If at all any passbook was missing from Revenue Office on conclusion can be drawn that the passbooks against which the loans were sanctioned were bogus/forged. There should have been a specific finding to the effect that particular passbook was fake and forged and that the appellant had such knowledge before sanctioning the loan. It is very clear that the allegations levelled against the appellant could not be established during the inquiry wherein the appellant was not afforded any sort of opportunity to cross-examine any witness and to establish his defence.-

10. We, have carefully considered the above arguments of both sides. The authorities cited by the learned counsel for the appellant do support his contentions squarely. Not drawing the disciplinary proceedings under relevant law and not holding regular inquiry in a case of major penalty where serious allegations of fact are denied, would definitely vitiate such disciplinary proceedings. Therefore, in view of such discrepancies the impugned order of the respondents, dismissing the appellant from service is not sustainable.

10. We, therefore, allow this appeal, set aside the impugned order and direct the respondents to reinstate the appellant in service. The case is remanded to the respondents to hold de novo proceedings on the same charges giving the appellant full and fair opportunity and allow him to put up his defence. The de novo proceedings shall be initiated and completed within a period of four months from the date of receipt of a copy of this judgment. The question of back-benefits shall depend upon the result of de novo proceedings. If the inquiry is not initiated and completed within the stipulated period, the appellant shall be entitled to all the back-benefits. H.B.T./77/FST Appeal allowed.