1978 PLP (C (PLC(CS))

FAKHRUDDIN H. SHEIKH (CHAIRMAN).‑

The appellant bas filed this appeal against the order of his removal from service, which was passed under the following circumstances :‑

2. The appellant was appointed as Assistant Engineer in January, 1972 and was promoted as Executive Engineer in February, 1974 in the Communication and Works Department. In April, 1975 he was posted at Dahdar, when the Chief Engineer inspected his area and noted certain discrepancies in the account of payments relating to some works. On the basis of these notes the respondent decided to charge‑sheet him and hold an inquiry through an Inquiry Officer for misconduct and corruption. Accordingly a charge‑sheet was served upon him on 17‑12‑1975. He was also informed by the respondent that Mr. Irahad Ahmed, Member. Board of Revenue has been appointed as Inquiry Officer to inquire into the %charge against him. The appellant has attached the charge‑sheet alongwith his memo. of appeal as Annexture C‑I. The substance of the charge sheet is that the appellant made fictitious measurements and overpayments and caused loss to the Government and thus he was guilty of gross misconduct.

3. The appellant filed reply to the charge‑sheet and the Inquiry Officer started the inquiry proceedings. The inquiry has not yet concluded. 3‑A. While the Inquiry Officer was yet seized of the inquiry, the respondent served a show‑cause notice upon the appellant on 13th April, 1976 calling upon him to show cause why a major penalty should not be imposed upon him because it had been reported, that he had persistent reputation of being corrupt and that he was indulging in other malpractice. The appellant submitted reply to this show‑cause notice also on 20th April, 1976 denying the allegations and also challenging the propriety and legality to this action. It may be stated that no statement of allegations was attached with the above show‑cause notice. However after considering the reply of the appellant, the respondent (Chief Secretary) passed the impugned order on 7th May, 1976 removing the appellant from service under rule 5(4)(b) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974 on the ground that‑ "the authorised officer is satisfied that the said charge of corruption and misconduct has been proved and said authorised officer has recommended that a major penalty be imposed on him."

4. The impugned order cannot be sustained for two reasons. At first the competent Authority had made up its mind to proceed against the appellant under rule 6 of the Efficiency and Discipline Rules, 1974 i. e. by getting an inquiry held through an Inquiry Officer, who is still seized of the inquiry. This means that the summary procedure as envisaged In rule 5(3) was not thought to be proper in this case. The proceedings on subsequent show‑cause notice by the Authorised Officer on almost the game allegations, would be unprecedented. Such a procedure is not warranted by the provisions of the above Rules. The Authority or the Authorised Officer can either proceed under rule 5(2) of the Rule of 1974 after framing charge sheet and appoint an Inquiry Officer, or under rule 5(3) by issuing a show‑cause notice. Simultanious proceedings against he same accused under both the above provisions will be against the spirit underlying rule 5 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974.

5. The contention of the learned Assistant Advocate‑General is that the charge sheet dated 17th December, 1975 was based on allegations of irregularities and malpractices whereas the show‑cause notice dated 13th April, 1976 was based on the allegations of "persistent reputation of being corrupt and of indulging in other malpractices". He has therefore argued that the allegations in the show‑cause notice being different, there was no legal bar to the subsequent proceedings on the basis of the show‑cause notice and that consequently the order of removal based on such notice was also valid.

6. There is no force in this contention. So far as the allegations of irregularities and mat‑practices are concerned, they are common to the charge‑sheet and the show‑cause notice. On these allegations two simultanieos proceedings under rule 5(2) will be unwarranted. The allegation of "persistent reputation of corruption" It not subject‑matter of the charge sheet, although it is mentioned In the show‑cause notice but since the autho rity had already decided to proceed under rule 5(3) in respect of the allega tions of malpractices, the other charge of corrupt reputation, being investigat ed jointly with the other allegations, cannot be tried separately in the summary manner under rule 5(2). Thus there was no warrant for the subsequent proceeding. It was open to the Authority to have served fresh charge sheet by including the allegation of "persistent reputation of corruption" and to refer the same Inquiry Officer to be enquired Into alongwith the other allegations.

7. The second reason for setting aside the Impugned order is that no statement of allegations was supplied to the appellant alongwith the show cause notice dated 13th April, 1976. The allegations mentioned in this show cause notice are vague and contained in one sentence which runs as under :‑ "Whereas it has been reported that you have the persistent reputation of being corrupt and have also been indulging in other malpractices." No details of malpractices have been mentioned although in. the earlier charge‑sheet the details of the malpractices were stated in detail running into 3 typed pages It was precisely for this reason that a detailed) inquiry through an Inquiry Officer was thought necessary at the earlier stage. These allegations were disposed of by a summary manner without supplying the details and particulars of the malpractice alongwith the show‑cause notice. This practically amounted to depriving the appellant of proper opportunity of showing cause as contemplated by rule 5(3)(b). Again in December, 1975, when the first charge‑sheet was served upon him, there wav no allegation of "persistent reputation of corruption" against the appellant whereas only after 4 months in April, 1976 when the show‑cause notice was served this allegation was, for the first time levelled against him alongwith the allegation of malpractices. If the appellant happened to earn this reputation during the period of 4 months, he was entitled to be supplied with some details or materials on which this allegation was based and a detailed inquiry should have been held, as on the other allegation at the earlier stage so that he could have defended himself properly.

8. For the above reasons the Impugned order dated 17th May, 1976 regarding removal of the appellant from service is set aside and he shall be deemed to be in service from the above date.

9. The appeal is accordingly allowed. It may however be added that this order will not affect the inquiry pending before the Inquiry Officer on the basis of the earlier charge‑sheet. It is hoped that the learned Inquiry Officer shall now proceed with the inquiry expeditiously and submit his report to the Authorised Officer concerned where after the competent Authority will be at liberty to pass such orders as the circumstances of the case warrant. Appeal allowed.