1976 PLP [C (PLC(CS))

HAMZO KHAN M. KURESHI (CHAIRMAN). This appeal is directed against the order dated 12‑7‑69 (Annexure 'G') passed by respondent No. 1 whereby the appellant was directed to pay a sum of Rs. 20,000.22, being the amount of shortage of Fertilizer and Wheat Seed for the period 1958‑59 to 1960‑61 when the appellant was working as Agriculture Assistant at Mehar in District Dadu. He was directed to pay the above amount within one month from the date of the order failing which the amount would be recovered from his, sureties and the properties owned by him through the revenue authorities. He was not permitted godown shortage because he had failed to furnish the last statement in the prescribed pro forma at the close of the year and obtained such sanction from the higher authorities. The appellant was appointed by the Director of Agriculture in Sind on 21‑3‑1949. He worked as Agriculture Assistant Mehar in District Dadu from 1957 to 1966. He was transferred from Mehar in 1966. There was shortage of Government Wheat Seed and Fertilizer for the period 1958‑59 to 1960‑61 to the extent of Rs. 20,000.22. A charge‑sheet dated 24‑5‑1968 issued by the Deputy Director of Agriculture, Hyderabad Region (respondent No. 1) was served on the appellant while he was posted at Khairpur. It was however not accompanied by the statement of allegations. He was charged with negligence for the above‑said shortage of the Government Wheat Seed and Fertilizer. The appellant was called upon to give the reply to the charge‑sheet within 15 days. The appellant, as stated by him in the memo. of appeal, submitted an application dated 7‑6‑1968 to respondent No. 1 through proper channel requesting that the original papers and record of Agriculture Assistant, Mehar be shown to him to enable him to submit his reply to the charge‑sheet. The copy of his application is Annexure 'B' on record. 'This application was recommended by the Deputy Director of Agriculture Khairpur, under whom the appellant was working when the charge‑sheet was served on him. The respondent No. 1 did not provide the opportunity to the appellant to go through the relevant record at Mehar nor was it verified in his presence at any time. The appellant gave his reply to the charge‑sheet on 7‑2‑1969. He has produced its copy with the memo. of appeal as Annexure `E'. He requested for personal hearing and be allowed to be present at the time of verification of record at Mehar before taking any decision. The appellant repeated his request by another application (Annexure 'F') dated 6‑5‑1969. The appellant alleges that no inquiry was at all held in his presence nor was he given any chance to explain his position personally nor was his explanation dated 7‑2‑1969 considered by respondent No. 1 before awarding him the major penalty of recovering Rs. 20,000.22 from him within one month. He further alleges that the order passed by respondent No. 1 was illegal, ultra vires and inoperative because his appointing and punishing authority was the Director of Agriculture in Sind and not respondent No. 1, who was the Deputy Director of Agriculture, Hyderabad Region. It is an admitted position that the appellant was appointed by the Director of Agriculture in Sind on 21‑3‑1949. The enquiry was admittedly held under West Pakistan Govern ment Servants (Efficiency and Discipline) Rules, 1960. The appellant alleges that the provisions of rules 6 and 8 of the said Rules were violated by respondent No. 1 by not adopting the prescribed procedure. Aggrieved by the aforesaid order by respondent No. 1, the appellant filed a Civil Suit for declaration and permanent injunction before the District Judge, Dadu in 1970 and obtained interim injunction from him. The suit, however, abated on 30th May, 1974 as the provisions of Article 212 (2) of the Permanent Constitution of Pakistan were extended to this Tribunal. The respondents have contested the appeal and filed their written state ment on 29‑11‑1974. They adroit that the appellant's appointment was made by the Director of Agriculture in Sind but the Deputy Director had also the powers of appointment by way of delegation. They have however, failed to produce any proof to that effect. The notification regarding delegation of power is neither mentioned in the written statement nor produced at a later stage. They allege that the shortage of Wheat Seed and Fertilizer was due to the negligence of the appellant. 'They admit that the fire had taken place in the Godown and some Stock was burnt on that account but allege that the godown caught fire due to the negligence of the appellant. They allege that the appellant was afforded the opportunity to verify and examine the record of Agriculture Assistant at Mehar but he did not avail of it for reasons best known to him. They assert that the appellant did not make a reply to the charge‑sheet for full one year in spite of reminders hence respondent No. 1 completed the inquiry and awarded the punishment to him for his wilful negligence. They state that they had issued a final notice to the appellant on 12‑5‑1969 to furnish his reply of the charge‑sheet but he failed to do so hence the impugned ex parte order was passed against him. They assert that there was no necessity of final show‑cause notice to the appellant because he had failed to submit reply to the charge‑sheet served on him. The points for determination are:‑ (1) Whether the impugned order against the appellant was passed by the competent authority? (2) Whether the ex parte order passed against the appellant is legal and proper? Findings.‑Both in the negative. The admitted facts are that the impugned ex parte order, Annexure 'G' was passed against the appellant by the Deputy Director of Agriculture, Hyderabad on 12‑7‑1969. The appellant's contention is that the Deputy Director of Agriculture could not pass the impugned order as he was not his appointing or punishing authority. It is admitted by the learned Assistant Advocate‑General that the appellant was appointed by the Director of Agriculture in Sind in March 1949. He however, contends that the powers of appointment and penalty were subsequently delegated to the Deputy Director of Agriculture (respondent No. 1) but he has failed to produce such Notification or order in spite of the time granted to him. According to rule 4 of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, no authority subordinate to that by which a Government servant was appointed shall be competent to impose any penalty for misconduct and etc. on him. The penalty of the recovery of Rs. 20,000.22 is a major penalty. It was imposed on the appellant under rule 4 of 1960 Rules. The shortage, according to the respondents, was due to wilful negligence which would amount to breach of service discipline or instruction issued by Government. Wilful negligence would amount to misconduct and the appel lant could not be punished by a person subordinate to the appointing authority. Since the Deputy Director of Agriculture was not the appointing authority of the appellant the impugned order passed by hire was without jurisdiction and therefore, illegal and inoperative. Point No. 2.‑The inquiry against the appellant was admittedly held under section 6 of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. The Deputy Director of Agriculture, Hyderabad was appointed as the Inquiry Officer. The shortage was to the extent of Rs. 20,000.22 which allegedly occurred due to the wilful negligence of the appellant. The inquiry was regarding wilful negligence and misconduct of the appellant and called for major penalty. Sub‑rule (5)(a) of rule 6 lays down as under:‑ "In cases calling for a major penalty the authority having power to imposes the penalty shall frame the charge and communicate it to tree accused together with the statement of the allegation on which ii is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case." It is admitted that the charge‑sheet was framed by the Deputy Director of Agriculture who was not the authority having power to impose major penalty on the appellant. The authority having power to impose such penalty on the appellant was the Director of Agriculture hence there is clear violation of the mandatory provisions of the above Rule and the order cannot be maintained. The above sub‑rule also 'makes it mandatory on the authority having power to impose the penalty to send the statement of allegations along with the charge‑sheet to the accused person. It is admitted that the statement of allegations was not communicated to the appellant. It is also clear from the; covering letter Annexure `A'. It does not show that the statement of allegations was sent to the appellant. Only the charge‑sheet (Annexure `A‑1') dated 24‑5‑68 was framed and communicated to the appellant which he received on 30‑5‑68, This charge‑sheet was not framed by the authority having power to impose the major penalty of recovery of Rs. 20,000 nor was it accompanied by the statement of allegations. Their was, therefore, no compliance of sub‑rule (5)(a) of rule 6 hence the entire proceedings are vitiated having no binding force of law. On this point we rely on D. B. ruling of Lahore High Court reported in P L D 1970 Lah.

811. Their lordships have observed as under :‑ "Rule 6 (5) (a) of the Government Servants (Efficiency and Discipline) Rules, 1960, which deals with cases in which tile major penalty is called for, provides that the authority having power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on case. This is a mandatory provision of law and the use of the word "shall" which applies both to the framing of the charge‑sheet, communicating it to the accused and to the supply of a statement of the allegations makes it incumbent upon the Authority to comply with it. A non‑compliance with it would amount to transgression of an obligatory rule which lays down the minimum standards comprising reasonable opportunity to be afforded to a Government servant against whom action is sought to be taken. The amount of prejudice, which would be caused to the person concerned, need not be teen into consideration, for non‑compliance with the rule itself would constitute denial of a reasonable opportunity which per se would vitiate the action taken. In this case, however, the absence of the statement of allegations particularly when the charges were shorn of all details in the charge‑sheet did cause prejudice to the petitioner because he was deprived of informa tion as to the basis on which the charges bad been framed against him and the other circumstances which were taken into consi deration when passing orders of his dismissal." As regards the facts of the care, the appellant's contention is that on receipt of the charge‑sheet he had submitted his reply to it on 7‑2‑69 and had requested for personal hearing and cross‑examination of the witnesses and also examination of the relevant record before the commencement of the inquiry but the Deputy Director of Agriculture (respondent No. 1) did not consider the same and passed the ex parte order against him. He says he was condemned unheard. He alleged that he had also made several applications in between 30‑5‑68 and 7-2‑69 for verification of the relevant record at Mehar but no opportunity was afforded to him and he was greatly prejudiced. He has produced copies of several documents namely his applications to respondent No. 1 and the copy of his reply to the charge -sheet submitted to respondent No.

1. He alleges that no inquiry was at all held against him and he was awarded a major penalty of the recovery of Rs. 20,000.22 without even verification of the record. He says the facts on record show that the shortage of the Seed and Fertilizer was recommended by the respondent No. 1 to be written off as the appellant was not to blame for the same. In support of his contention he has produced the copy of the letter dated 24‑12‑60 addressed by respondent No. 1 to the Director of Agri culture, Hyderabad. In this letter the Deputy Director has clearly stated that that "shortage seems to be genuine" on the basis of the reasons advanced by the Extra Assistant Director of Agriculture, Dadu. He clearly stated in that letter that 347 bags of Wheat Seed were "seived out" and 40 Mds. were found short and a shortage of 979.20 Maunds of What occurred due to fire. He recommended that "this shortage was reasonable and may be written off." This letter knocks out the bottom of the case of the respon dents set out in the charge‑sheet which stated that the Wheat shortage had occurred due to the "negligence" of the appellant. The letter written in December, 66 shows that the shortage was "genuine and reasonable and may be written off;" but in the charge‑sheet framed in May 1968 it is shown that the shortage was due to the negligence of the appellant and he must make good the alleged loss. The letter does not show that the fire in the godown way due to the negligence of the appellant. On the contrary it shows that the reasons for shortage given by the Extra Assistant Director of Agriculture Dude were genuine. This shows that the Deputy Director of Agriculture, was himself negligent of his duties and had not verified the record correctly before awarding the major penalty to the appellant. The case of the respondents is that the appellant failed to appear before the Deputy Director on the appointed date. This explanation does not appeal to reason. The appellant was serving in the same department at Khairpur and the Deputy Director, if he so wished, could call him at any time. The Deputy Director failed to afford an opportunity to the appellant to examine and verify the record of the Agriculture Assistant at Mehar in spite of his repeated applica tions. When the learned Assistant Advocate‑General was confronted with the abovesaid circumstances and the document dated 24‑12‑66 he could not reconcile the factual position and was not keen to support the case of the respondents on merits. We therefore come to the conclusion that the ex parte order passed against the appellant was in contravention of the mandatory provisions of Rule 6 of 1960 Rules mentioned above and must be set aside. The charge‑sheet was based on wrong facts. Besides, no reasonable opportunity was given to the appellant to defend his case as the statement of allegations was not sent to him alongwith the charge‑sheet and also because he was not allowed to be present at the time of enquiry. It is also not explained how the appellant would be responsible for the shortage of Wheat mentioned in the charge‑sheet when it was already recommended by respondent No. 1 in his letter dated, 24‑12‑1966, that the shortage was "genuine" and may be written off. In the result we allow the appeal and set aside the impugned order. There is, however, no bar to a fresh inquiry against the appellant if the department after taking into consideration the above said letter dated 24‑12‑66 still comes to the conclusion that loss had been caused to the Government by wilful negligence of the appellant. Each party is left to bear his own costs.