2005 PLP (C (PLC(CS))

2. Whereas, Mr. Muhammad Aslam, Deputy Election Commissioner, Zhob at Loralai was appointed as Inquiry Officer under section 5(1) of the Removal from Service (Special Powers) Ordinance, 2000 who had submitted an inquiry report concluding that charges levelled against you were proved.

3. Whereas, to enquire the matter further, in Inquiry Committee consisting of Mr. Aziz-ul-Hassan Rizvi, Section Officer in the Election Commission Secretariat, Islamabad and Mr. Muhammad Aslam, DEC, Zhob at Loralai was also constituted and the charges were proved against you.

4. And whereas the Competent Authority in terms of section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000 was tentatively of the view that the charges of being absent from office on 17-10-2002 without permission; sale of 263 small size ballot boxes; and misappropriation/ embezzlement of entire amount of Rs.1,68,800 allocated for disbursement to the Polling Assistants engaged during Referendum, 2002 stood established against you while the payment of about Rs.2,42,000 out of the total amount of 1st and 2nd instalment of honoraria appeared to be doubtful.

5. And whereas, the Secretary, Election Commission being the 'authorized officer issued a show-cause notice to you and also afforded opportunity of personal hearing to you on 21st May, 2003 in 'his office at Islamabad.

6. Now therefore, you, Mr. Muhammad Afzal are hereby called upon to Show Cause in writing within 15 days of the receipt of this notice as to why one or more of the penalties including the major penalty of dismissal from Government Service as prescribed in section 3 of the Removal from Service (Special Powers) Ordinance, 2000 read with rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973 should not be imposed upon you. In case reply to this Second show-cause notice is not received within the period as aforesaid, you will be proceeded against ex parte. You may, however, appear in person before the undersigned in his office at Islamabad on 5th August, 2003 at 11-00 a.m. to explain your case personally. (Sd) (Chief Justice. (R) Irshad Hassan Khan) Chief Election Commissioner of Pakistan." It was issued by the Chief Election Commissioner now acting as Competent Authority without realizing that earlier the Secretary Election Commission also acted as Competent Authority as indicated in the first show-cause notice of 8-3-2003. It involved violation of rules as rules obviously do not stipulate two competent authorities of different levels in dealing with disciplinary proceedings against the same officer. To top it all and in blatant violation of law, the Competent Authority i.e. the Chief Election Commission also referred to the Secretary Election Commission as Authorized Officer under the Ordinance who issued him first show-cause notice on 8-3-2003 and granted him personal hearing on 21-5-2003. It will also be observed that in both the show-cause notices, the Competent Authority has been determined in the light of section 2(aa) of the Ordinance. The odd thing is that both the Secretary Election Commission and the Chief Election Commissioner acted as competent authorities in the light of the aforesaid section, without realizing that how two offices could act as competent authorities for the appellant in the same disciplinary proceedings against him. In our view, shifting stand and in decision about the single Competent Authority caused serious prejudice to the defence of the appellant as contradictory and self-defeating orders appointing different competent authorities were issued quoting the same section of the Ordinance.

7. Another illegality crafted by the respondent-Department beyond the scope of the Ordinance as evident from the second show-cause notice dated 12-7-2003 is that the Competent Authority i.e. Chief Election Commissioner refers to the Secretary of the Election Commission who previously acted as Competent Authority while issuing order of Enquiry and Statement of Allegations on 8-3-2003 as Authorized Officer. The concept of Authorized Officer as envisaged in the Government Servants (E&D) Rules, 1973 was replaced in the Ordinance by the Enquiry Officer. Thus the amalgam of the provisions of E&D Rules and Ordinance is another strange and odd innovation contrived by the respondents themselves in violation of the relevant rules.

8. Similarly, while going through the two enquiry reports dated 10-1-2003 and 26-2-2003, we have observed legal and procedural infirmities. The enquiry report dated 10-1-2003 was not accepted by the department as it was not conclusive as per the following reasons: (i) He has not been able to record statement of original complainants upon whose complaint the present case has been initiated. (ii) He has not been able to obtain/take statement of the person alleged to have purchased the small size ballot boxes. The complainants remained untraced. Nobody owned these complaints as the office of the Balochistan Students Federation purported to be complainants was always found closed. The respondents thus assumed the role of complainants and started probing the complaints suo motu converting them into allegations. The second enquiry report dated 10-1-2003 was accepted despite the fact that the above discrepancies were not rectified by the respondents.

9. Let us at the stage peruse the allegations levelled against the appellant vide order of Inquiry dated 10-12-2002 which are reproduced below:-- (1) He unauthorizedly left his headquarter on 17th October, 2002 for Quetta despite having been clearly instructed personally by the Provincial Election Commissioner not to leave his officer in any case. (2) He unauthorizedly sold out 263 small size ballot boxes to one Hafiz Abdul Aziz for Rs.50,000. (3) He embezzled the entire amount of 2nd instalment of honorarium i.e. Rs.3,21,000 meant for payment to enumeration staff for preparation of Electoral Rolls, 2002. (4) He misappropriated/embezzled the entire amount of Rs.1,68,800 which was allocated to his office for disbursement to the Polling Assistants engaged during Referendum, 2002. (5) He has been misusing his office vehicle No.KN-364 for searching out Mummies in graveyards of Kharan District.

10. The allegations Nos.(1),(2) and (4) were proved on the basis of suppositions and presumptions and without tangible evidence. In his reply to Allegation No.(1), the appellant has submitted that he obtained H approval of the joint Provincial Election Commissioner (JPEC) Balochistan for leaving his office on 17-10-2002. The JPEC has confirmed the statement of the appellant as also indicated against this allegation by the Enquiry Officer in the first enquiry report of 10-1-2003. To prove his presence on 20-10-2002 in his office the appellant furnished a certificate issued by the DCO, Kharan that he was present in the office on 20-10-2002. The Enquiry Committee neither considered the certificate as worthwhile evidence nor summoned the DCO, Kharan to record his statement before it. The Enquiry Committee simply accepted that since the appellant failed to respond to the telephonic calls of the Provincial Election Commissioner on the said date, he was presumed to have been absent from the office on 20th October, 2003. The allegation is thus established on the basis of his non-response to the calls of the Provincial Election Commissioner and on the evidence of subordinates of the appellant who could not have resisted the possible pressure exerted on them by the respondents. The appellant's absence from his office on 20-10-2002 was however not included in the allegations levelled against him. Hence holding him responsible for unauthorized absence on 20-10-2002 tantamounts to going beyond the scope of statement of allegations.

11. Allegation No.2 also remained inconclusive, as the putative buyer of the ballot boxes did not record his statement. The first enquiry report was not accepted because of the absence of his statement. The same situation existed during the proceedings in the second enquiry as the presumed buyer Hafiz Abdul Aziz did not admit that he purchased the ballot boxes from the appellant. Despite this lacuna the findings of the second enquiry report was accepted.

12. Allegation No.3 also remained inclusive as Enquiry Committee was of the view that further probing into his allegation was required.

13. Allegation No.4 cannot be termed as established as the appellant required 15 days to produce Polling Assistants to whom he paid honorarium. In our view the Enquiry Committee should have given him time to produce the witnesses to clear his position rather than depending upon the statement of subordinate staff of the appellant's office that people were still approaching the office for receipt of their dues.

14. The above analysis would show that the Enquiry Committee did not probe the allegations as per prescribed procedure. Evidence of key witnesses who could determine the direction of the enquiry proceedings and lead to definite conclusions was not recorded to the determent of the appellant. The Competent Authority in this case also acted as appellate authority to whom the Departmental Representation/Review Petition was addressed by the appellant on I 9-2-2003 to which no reply was given. Moreover, the appellant could not expect justice from the appellate authority who also acted his Competent Authority and issued impugned order dated 19-8-2003 on which Notification dated 20-8-2003 was based. We cannot expect the appellate authority (Chief Election Commissioner) to change his views which he has already formulated about the appellant while acting as his Competent Authority.

15. The above critical analysis of the appeal would amply manifest that the respondents acted as accused Judge and executioner. Not satisfied with legality of the proceedings adopted in the proceedings, we set aside the order dated 20-8-2003 and reinstate the appellant with effect from the date he was dismissed from service. The respondents have the option to conduct fresh disciplinary proceedings against the appellant in accordance with the correct law within a period of six (6) months from the date of the communication of this order based on the same allegations by removing the legal and procedural discrepancies as identified above. The decision of the criminal case registered again the appellant if available should also be kept in view. The appellant shall be afforded full opportunity within the paramenters of law to defend allegations against him. Back-benefits and retention of the appellant in the service of the respondent-Department shall depend upon the findings of the de novo enquiry proceedings if initiated and completed within the timeframe as indicated above.

16. No order as to costs. Parties be informed, accordingly. H.B.T./99/FS Appeal accepted accordingly.