1989 PLP (C (PLC(CS))

SARFRAZ HASAN (MEMBER).‑‑Shakil Ahmad, Ex‑Registration Clerk, Office of the Deputy Commissioner, Sialkot has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the. Commissioner Gujranwala Division and Deputy Commissioner, Sialkot as respondents.

2. By virtue of this appeal Shakil Ahmad has prayed that order dated 17‑11‑1985 passed by Deputy Commissioner, Sialkot (respondent No. 2) and order dated 6‑4‑1986 passed by the Commissioner, Gujranwala Division (respondent No. 1) may be set aside and he be reinstated in service with all back benefits.

3. Brief facts of the case are that on 14‑7‑1985 Additional Deputy Commissioner (General), Sialkot conducted a surprise inspection of the office of Sub‑Registrar, Daska where the appellant was posted as Registration Clerk. As a result of this inspection, the Deputy Commissioner, Sialkot placed the appellant under suspension and issued the following show‑cause notice dated 3‑8‑1985 against the appellant:‑ "During the surprise visit of the office of the Sub‑Registrar, Daska on 14 7‑1985 at 12.15 p.m. by the Additional Deputy Commissioner (General), Sialkot, following irregularities/malpractices were noticed in your working:‑ (i) that two private individuals namely M/s. Abdul Rashid and Muhammad Rafiq were found working in the said Branch who were admittedly employed and being paid by you. (ii) that uptil, the time of the visit of the Additional Deputy Commissioner (General) 9 deeds had been attested by the Sub‑Registrar and the endorsements thereon had been recorded by the said two private persons named in point No. (i) above unauthorisedly and against rules. (iii) that the Additional Deputy Commissioner (General) checked 16 deeds registered on 13‑7‑1985 out of which only one endorsement had been recorded, by you whereas, endorsements on all other deeds had been recorded by the above-named two unauthorised persons. (iv) that a sum of Rs.3,970 was recovered from you whereas the Registration Fee of the 9 deeds registered till that time amounted to Rs.3,250 meaning thereby that you had received Rs.720 more than the prescribed fee. (v) that another sum of Rs.6,010 was recovered from your Almirah about which you could not explain satisfactorily. (vi) that no copy of decd had been pasted in Addl. Behi No. 1 after serial No. 111, dated 4‑7‑1985. (vii) that the copies prepared in consequence of applications submitted by the following applicants on the dates noted against each had not been delivered to them: (1) Muhammad Nawaz son of Chiragh Din, resident of Gulabgarh. 16‑1‑1985 (2) Rafaqat Ali son of Riaz Ahmad, resident of Kotli Marian. 23‑1‑1985 (3) Ibrahim son of Gulab, resident of Shamsa. 11‑2‑1985. (4) Bashir Ahmad son of Ghulam Rasul, resident of Pakki Garhi. 3‑4‑1985 (5) ‑do‑ 3‑4‑1985 (6) Khushi Muhammad son of Sardar, resident of Dhobwali. 13‑3‑1985 (7) Mukhtar Ali Khan 26‑6‑1985 You are, therefore, guilty of corruption, carelessness and inefficiency in the performance of official duty and misconduct and liable to be proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. (2) And whereas, the undersigned has decided that it is not necessary to have an inquiry conducted in proof thereof and whereas it is proposed to proceed against you under sub‑rule (3) of Rule 6 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. (3) Now, therefore, you are hereby cased upon to show‑cause in writing within 14 days of the receipt of this communication as to why one or more of the penalties, as prescribed in Rule 4 of the aforesaid Rules, should not be imposed on you. (4) Your explanation (in duplicate) should reach the undersigned within the said period, failing which it shall be presumed that you have no defence to offer. You should also state if you wish to be heard in person." On 17‑8‑1985 the appellant submitted his reply to the show‑cause notice but it was considered unsatisfactory by the Deputy Commissioner, Sialkot who vide his order dated 17‑11‑1981 dismissed the appellant from service. The appeal filed by him before the Commissioner, Gujranwala Division was also rejected on 6‑4‑1986.

4. We have heard the learned counsel for the appellant and the learned District Attorney and have also perused the record carefully with their assistance.

5. The learned counsel for the appellant submitted the following main points:‑ (i) Respondent No. 2 acted as authority and also as authorised officer. This illegality had seriously prejudiced the defence of the appellant as he had been deprived of examination of his case independently at two stages. (ii) The allegations contained in the show‑cause notice could not be adjudicated on the basis of a show‑cause notice only. Serious disputed questions of facts were involved which could only be resolved through a regular enquiry. However, no regular enquiry was held. (iii) A preliminary enquiry cannot be accepted as a substitute for a regular enquiry. (iv) The appellant was denied a reasonable opportunity to defend himself. No copy of the preliminary enquiry held against the appellant was supplied to him. The token hearing given by respondent No. 2 was only an empty ritual. (v) No second show‑cause notice was issued to the appellant before passing order of dismissal from service. (vi) During the preliminary enquiry the Additional Deputy Commissioner (General) recorded the statement of Reader to the Tehsildar and the private individuals in the absence of the appellant and these statements could not be used against the appellant. (vii) Writing of "Ibarat Zohri" on the registered documents is the responsibility of the Sub‑Registrar. according to para. 157 of the Registration Manual. Therefore, the Sub‑Registrar was responsible if some private individuals had recorded "Ibarat‑e‑Zohri". (viii) The two private individuals found working in the office had been employed by his seniors for the last 8‑10 years and therefore the appellant was not responsible for them. (ix) The excess amount of Rs.720 found on the person of the appellant was his personal money which he had brought from home for purchasing iron cots. (x) The amount of Rs.6,010 recovered from the Almirah included Rs.3,000 provided by the Tehsildar for P.O.L./repair of Sub‑Divisional Jeep. Similarly, Rs.2,300 were the sale proceeds of Raffle Tickets. The remaining amount of Rs.770 was the registration fee of three deeds. (xi) The employment of private individuals in the Registration Branch was previously the subject‑matter of a regular enquiry against Safdar Ali Khan and Haji Muhammad Hussain of Registration Branch. Mr. Musa, the Enquiry Officer reported on 31‑12‑1978 that responsibility for engaging private individuals could not be fixed on any officer or official of the Branch. The enquiry report was filed by the Deputy Commissioner, Sialkot vide his order dated 8‑1‑1979. (xii) Mr. Muhammad Tariq, Registration Clerk, Daska was also proceeded against for non‑deposit of registration fee. However, Mr. Tanq Farooq wits let off, with a warning only. (xiii) The order passed by respondent No. 1 shows lack of application of mind. Many points of law and facts were raised before him but none of these points have been adjudicated. (xiv) The show‑cause notice contains allegations of corruption and misappropriation. A regular enquiry must be conducted to enquire into such allegations. However no regular enquiry was conducted.

6. The learned District Attorney adopted the para-wise comments furnished by the respondent No. 2 and submitted that impugned orders of dismissal from service were justified and this appeal may be rejected.

7. We have given anxious thought to the submissions made by both sides and have come to the conclusion that the proceedings against the appellant have been conducted in violation of the rules of natural justice and rulings given by the superior Courts. In this connection, attention is invited to the following main points:‑ (i) Respondent No. 2 issued show‑cause notice dated 3‑8‑1985 against the appellant under rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1975 in his capacity as authorised officer and dispensed with regular enquiry. However, the same respondent No. 2 assumed the role of authority when he passed order dated 17‑11‑1985 dismissing the appellant from service. Although proviso to rule 2(c) lays down that "the authority may be authorised to act as authorised officer, the record produced before us does not show that respondent No. 2 was authorised to act as authority as well as authorised officer. Further, vide 1982 P L C (C.S.) 795 where the same person was designated as authority and authorised officer the appellant was considered to have been deprived of examination of his case at two stages before the appellate stage and therefore, the order of dismissal was struck down. (ii) Order dated 17‑11‑1985 passed by the respondent No. 2 and order 60 6‑4‑1996 passed by the respondent No. 1 show that a preliminary enquiry report submitted by the Additional Deputy Commissioner (General), Sialkot was made the basis of proceedings against the appellant but no copy of this preliminary enquiry report was supplied to the appellant nor was he allowed to cross‑examine the witnesses. On the contrary, order dated 6‑4‑1980 passed by respondent No. 1 refers to these allegations in the following words without denying or confirming their truth or adjudicating upon them:‑ "He was not supplied copy of report of preliminary enquiry and statements of witnesses were also not recorded thus he has not been provided reasonable opportunity to defend. He was not allowed to cross- examine the persons who got their statements, recorded before the A.D.C.(G): (iii) Vide P L D 1963 Lah. 295 and P L D 1903 S C 460, evidence, oral and documentary should be brought on record in respect of allegations that are not admitted and the person charged should be given an opportunity to cross‑examine witnesses, if any, and to produce evidence on his behalf. (iv) Vide P L D 1974 S C 393 Muhammad Siddique Javid Chaudhary v. Government of Punjab, the Supreme Court of Pakistan has ruled that it is necessary to hold regular enquiry into allegations of corruption. However, no regular enquiry was held in this case. This meant a denial of reasonable opportunity to the appellant to defend himself properly.

8. Keeping in view the detailed analysis of the case given above, we have come to the conclusion that the proceedings against the appellant were conducted in violation of the rules of natural justice and the rulings given by the superior Courts. We, therefore, accept the appeal and set aside the impugned order dated 17‑11‑1985 passed by respondent No. 2 and impugned order dated 6‑4‑1986 passed by respondent No.

1. The case is remanded to the competent authority for regular enquiry against the appellant in accordance with the rules of natural justice and the rulings given by the superior Courts. The appellant is accordingly reinstated in service. The period between date of his dismissal and reinstatement will be decided by the competent authority. There will be nor order as to costs. A.A./251/Sr. P Appeal accepted.