1991 PLP (C (PLC(CS))

ABDUL HAMID KHAN (MEMBER).

Muhammad Ashraf, ex- Chowkidar, Commissioner's Office, Faisalabad has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order dated 29-8-1988 passed by the Commissioner, Faisalabad (respondent No. 2) under which the major penalty of removal from service was imposed on him and order dated 12-9-1989 under which his appeal against the order of the Commissioner, Faisalabad was filed by the Member (Revenue), B.O.R. (respondent No. 1).

2. It is stated that while in service the appellant had permitted his quarter situated in the premises of the Commissioner's Office to be used for immoral purposes by one Sardar Muhammad Dogar, a police official who was then posted as Gunman to the D.C., Faisalabad. During a raid conducted by the Police, Sardar Muhammad Dogar and a woman were found in compromising position in the appellant's quarter. A departmental enquiry was held against the appellant under the Punjab Civil Servants (E&D) Rules, 1975 as a result of which he was found guilty and was awarded the major penalty of removal from service by respondent No. 2 who was the authority in this case. The appeal filed by him against the above order before respondent No. 1 (Appellate Authority) was filed as the appellant's address was not known and the summons could not be served on him.

3. We have heard the counsel of both the parties- and have also carefully perused the relevant record produced before us. The learned counsel for the appellant has contended that the impugned orders are void ab initio and liable to be struck down on the following grounds: (i) The enquiry officer had not recorded the statements of many crucial witnesses such as Sardar Muhammad Dogar etc. (ii) The appellant had been prevented from cross-examining some of the witnesses and from producing defence witnesses. (iii) He was not supplied a copy of the enquiry report alongwith the show cause notice. (iv) The immoral act on the part of the police official, Sardar Muhammad Dogar, had not been proved by any enquiry conducted by the police nor was a case registered against him under the Hudood Ordinance. (v) The Appellate Authority (respondent No. 1) did not issue any notice for disposal of the appeal and filed it in the absence of the appellant without going into its merits.

4. The learned DA. valiantly fought to rebut the above contentions of the learned counsel for the appellant and put up a strong defence on behalf of the respondents. We, however, do not feel inclined to accept his point of view on two important objections raised by the learned counsel for the appellant. It is on record that while serving the show-cause notice on the appellant before recommending to the authority the imposition of major penalty, the authorised officer did not supply the accused civil servant with a copy of the enquiry report. According to the learned counsel for the appellant, it was incumbent on the authorised officer to provide a copy of the enquiry report alongwith a slow-cause notice and that this lapse on the part of the authorised officer has seriously prejudiced the defence of the appellant. He contended that this was a material irregularity, which has vitiated the proceedings. The omission means that a fair procedure was not adopted and adequate opportunity was not given to the accused civil servant of presenting his case before the authorised officer. Even though the provision of supply of enquiry report may not be mandatory or a statutory requirement but it can be enforced on the ground of fairness and avoidance of prejudice to the officer. In Syed Mir Muhammad's case P L D 1981 S C 176 it was held that non-supply of the enquiry report had materially prejudiced the officer. In the instant case too we lied that the non-supply of the enquiry report has prevented the appellant from knowing the grounds on which the enquiry officer had based his findings.

5. In their written objections the respondents have defended the omission by saying that "as the case came within the purview of major penalty the authorised officer is not supposed to provide a copy of the enquiry report. This is a fallacious and distorted view of the rules. The fact is that the appellant was entitled to receive a copy of the enquiry report irrespective of the nature of the punishment proposed, whether it was a case of the major penalty or one of minor penalty, on the ground of the fairness and avoidance of prejudice. This tribunal has already held in its judgment in Appeal No. 568/1068/88 (Syed Nasir Abbas, Assistant Engineer, Public Health Engineering Department v. Secretary to Government of the Punjab, Housing & Physical Planning Department etc.) that: "The E&D Rules are silent on the question of supply of enquiry report to the accused officer alongwith the show-cause notice. However, this being a principle of natural justice, the requirement should be considered to be implied in the statute. In Maudoodi's and Zahir Ahmad's cases the Courts have observed that the principles are only presumptions and express words in an Act can exclude them. The point was further elaborated in the case of Commissioner' of Income Tax v. Fazlur Rehman P L D 1964 S C 410 wherein it was observed that the rules of natural justice are to be read as part and parcel of every statute unless and until there is a specific provision in a particular statute to the contrary."

6. It is a misconception that copy of the enquiry report could be supplied only in cases where major penalty is to be imposed. No distinction is to be made between a major or a minor penalty for supplying a copy of the enquiry report or any material document which is made the basis of enquiry or imposition of a penalty. This is thus a very material flaw which has rendered the recommendations of the authorised officer and the ultimate order passed on their) basis by the authority invalid.

7. Another important lacuna in these proceedings is the fact that no proper notice was given to the appellant by the appellate authority (MBR/respondent No. 1) before filing the appeal which in any case was not disposed of on merits. It was explained by the learned District Attorney that efforts were made by the Commissioner's Office to trace out the appellant at his given address but the notices issued from the MBR's Office could not be served on him as having vacated his official residence the appellant was not available there. It was, therefore, concluded that as the appellant's present address was not known the summons could not, therefore, be delivered to him. In these circumstances the appellate authority decided to tile the appeal. It is apparent that sufficient and genuine efforts were not made to make contact with the appellant. His service book was available with respondent No. 2 and the summons could have been sent on the address of the appellant given in the service book. Alternately, a notice could conveniently be published in the newspapers to complete the formality and meet the ends of justice. This omission on the part of the appellate Authority has deprived the appellant of an opportunity of putting up his defence and make his submissions in person. This again is a material omission which has rendered the proceedings invalid.

8. For all these reasons, were accept the appeal and set aside the impugned orders passed by the respondents and remand the case back to the authorised officer who should conduct the proceedings de novo from the point where the first defect occurred i.e. he should serve a fresh show cause notice on the appellant with which a copy of the enquiry report should be attached. The period of absence after the appellants removal from service is left to be determined by the competent authority. There will be no orders as to costs. M.Y.H./323/Sr. P Case remanded.