1988 PLP (C (PLC(CS))

KH. MUHAMMAD YOUSAF (MEMBER).‑‑Faiz Muhammad Malik, ex‑Foodgrain inspector has filed the present appeal under section 4 of the Punjab Service ‑Tribunals Act, 1974 impleading Director Food, Punjab, Lahore and Deputy Director Food, Lahore Region, Lahore as respondents. The appellant has impugned the order of his dismissal dated 1‑7‑1986 passed by the Deputy Director Food, Lahore Region, Lahore.

2. Briefly stated the facts of the case are that in the year 1986 the appellant was posted as Foodgrain Inspector Morr Khunda, District Sheikhupura. On 14‑2‑1986 2 trucks loaded with rice bound for Karachi were captured by Anti‑smuggling Police at Lodhran transporting 250 bags of ' Basmati' rice illegally from District Sheikhupura on the basis of bogus and forged permit and two cases F.I.R. Nos. 53 and 54 at P.S Lodhran under section 420/468/471, P.P.C. and under section 3‑6 of the Food Stuff Control Act were registered against the said transporter alongwith the appellant. On this the Enquiry Committee comprising Assistant Food Controller and Muhammad Aslam, Foodgrain Inspector Sheikhupura conducted a preliminary enquiry into record and stock of Authorised Dealers of Morr Khunda. They found certain discrepancies in their stock which was due to unauthorised and illegal transportation of rice. Consequently 2 cases F.I.R. Nos.54 and 55 were registered at P.S. Mangatwala, District Sheikhupra. In all the said four cases the appellant was also involved. The departmental authority also decided to proceed against the appellant departmentally. Consequently the appellant was charge‑sheeted on the following allegations:‑ "According to the information collected from the Anti‑smuggling Check Post 2950 Bags Basmati Rice have been transported from More Khunda to other places on fake and bogus permits managed and prepared on Book No.401 with your help, connivance and support, missing from Regional Office, Lahore. Moreover on scrutiny of the record of Messrs Ghausia Rice Mills, Monga and Co. ARDs More Khunda it was found that after detection of two trucks bearing No.3275‑LS and LS 5501 loaded against bogus and fake permits No.40014/M‑K/136, and 40020/MK/143 of 250 bags each both dated 13‑2‑1986, he prepared the record and fraudulant entries of genuine permits bearing No.1250 and 1251 both dated 13‑2‑86 were made by him against the forged entries in his office record. He did not give proper attention on the checking of accounts/stocks of ARDs/ARMs of his centre due to which huge quantity of Rice have been smuggled through illegal movement and deprived the Government from huge amount of Foreign Exchange, Excise Duty and Income‑Tax. Besides, he received his suspension orders on 22‑2‑1986 and he was required to attend District Office, Sheikupura regularly but he failed to comply with the said orders which tantamounts to insubordination on his part. This proves his help, connivance and support with the ARDs/ARMs in this instant smuggling case of rice beyond the shadow of doubt." The District Food Controller was appointed as Authorised officer who served the charge‑sheet upon the appellant. An Enquiry Committee headed by Mr. Munir Ahmad, AFC was appointed to hold enquiry on the said charges. The Enquiry Committee held that the illegal transportation of rice has been carried out by the Authorised Rice Dealer of Morr Khunda with the help of the appellant. At this the Authorised Officer‑District Food Controller recommended imposition of major penalty upon the appellant. Consequently, the Deputy Director Food, Lahore Region, Lahore‑‑the authority dismissed the appellant from service vide order dated 1‑7‑1986. The appellant filed appeal before the Director Food, Punjab, Lahore on 28‑7‑1986 which was not disposed of by Director Food. The appellant then after the expiry of statutory period of 90 days filed the present appeal before this Tribunal.

3. The appeal was admitted for regular hearing and notices were sent to the respondents. The respondents have filed written objections controverting the averments of the appellant.

4. The appellant has assailed the impugned order of his dismissal on the following grounds:‑ (i) That the appellant has been discharged from the Court by the Magistrate in the two criminal cases registered at P.S. Lodharan at the request of the Police as the result of the investigation he was found innocent and was not connected with the forged permit or with the offence alleged. Similarly the cases registered at P.S. Mangat Wala have also been cancelled. The appellant in this way has exonerated from all criminal cases and under these circumstances the appellant could not be proceeded against departmentally. (ii) That the Enquiry officer did not examine any witness and gave his findings on mere examination of record on the basis of which the appellant has already been discharged and exonerated from the criminal cases. (iii) That the requirements of section 7‑A of Efficiency and Discipline rules were not complied with as the appellant was neither supplied copy of enquiry report nor he was served with a show‑cause notice to explain his position nor the appellant was given opportunity of being heard by the Authorised Officer before making recommendations to the Authority for award of major penalty to the appellant and in this way the appellant has been badly prejudiced in matter of his defence.

5. We have made deep appraisal of the entire record and circumstances of he case and have heard at length the learned counsel for the appellant and the learned District Attorney on the points involved in this case. Without going into the merits of the case and the question of impact of appellant's discharge from criminal cases and also without further going into the question of evidentiary value of enquiry report we would be dealing with the ex‑facie legal infirmity on account of non‑observance of requirements of section 7‑A of the Efficiency and Discipline Rules, 1975 which are fatal to the validity of final order passed against the appellant. It is admitted fact that the appellant was not supplied with the enquiry report by the Authorised Officer nor the appellant was provided opportunity to offer his explanation against the recommendations for imposition of major penalty nor was heard by the Authorised Officer in this behalf which was the statutory obligation of the Authorised Officer before forwarding his recommendations to the authority as envisaged under section 7‑A of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which reads as under:‑ "7‑A. The Authorised Officer on receipt of the report of the Inquiry officer or Inquiry Committee, shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall, after affording the accused an opportunity of showing cause against the action proposed, pass order accordingly. If it is proposed to impose a major penalty, he shall, after affording the accused an opportunity to offer his explanation against his recommendations for imposition of major penalty, forward the case to the authority alongwith the charge‑sheet, statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the Inquiry Committee, as the case may be and his own recommendations regarding the penalty to be imposed. In case it is proposed to drop the proceedings, the Authorised Officer shall submit the case with all relevant material /documents to the Authority for appropriate orders." The leading case on the point decided by the Supreme Court of Pakistan is that of Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary P L D 1981 S C 176 in which the corresponding provisions in the N.‑W.F.P. Efficiency and Discipline Rules, 1973 were interpreted as under:‑ "it will be seen that in a case where it is proposed to impose a major penalty as a result of formal inquiry, the authority is required before passing order to take into consideration the following: ‑ (a) The charge and statement of allegations served on the accused; (b) the explanation of the accused; (c) the finding of the Inquiry officer or Inquiry Committee; and (d) the recommendations of the authorised officer regarding the penalty to be imposed. The explanation of the accused referred to in sub‑rule (iv) 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 of Committee has formulated its findings. A proper explanation of the accused officer in such a case can only be furnished if he is supplied a 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. In reaching this conclusion, we are fortified in our view by the fact that in sub‑rule (3), which embodies the shorter procedure for dealing with disciplinary matters it is clearly contemplated that the Authorised Officer shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and shall give him a reasonable opportunity of showing cause against that action. There seems to be no logical reason for denying the accused officer a similar opportunity in a case where a formal inquiry is held in terms of rule 6 read with sub‑rule (2) of ‑rule

5. It appears to be the salutary requirement of rule 5 that the accused officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with, then this stage is reached when the grounds of the proposed action and the allegations are conveyed to him; but this stage is reached in case of a formal inquiry only after the inquiry has been completed and the authorised officer has formulated his views in the light of the inquiry report. 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 recommendation to the Authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused officer at this stage, and he should be appraised of the action proposed against him." The law laid down in Mir Muhammad's case has been reiterated by the Supreme Court of Pakistan in subsequent decision as such in 1984 SCMR 451 and 1987 S C M R 1562.

6. After deep perusal of the law and facts of the case we are of the considered opinion that the non‑observance of provision of section 7‑A of the Punjab Civil Servants (E&D) Rules, 1975 has caused material prejudice to the appellant in the matter of his defence.

7. Resultantly this has vitiated the final order of dismissal of the appellant. We, therefore, accept the appeal of the appellant and order the re‑instatement of the appellant and remand the case to the Authorised Officer who shall strictly comply with the provisions of section 7‑A of the Efficiency and Discipline Rules. The competent authority shall decide as how the period to be treated for which the appellant remained out of service after finalising the case of disciplinary proceedings against the appellant. There will be no order as to costs. S.Q. /183/Sr.P???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.