1976 PLP [C (PLC(CS))

HAMZO KHAN M. KURESHI (CHAIRMAN).‑The present appeal under section 4 is directed against an order dated 8‑6‑74 whereby the appellant has been removed from service for misconduct. The appellant was serving as Education Supervisor, Tando Mohammad Khan and Golarchi beat at the time of his removal. Briefly stated the facts leading to this appeal are that on 14‑7‑73, the Minister for Education, Government of Sind received a complaint against the appellant. He ordered immediate inquiry in the matter. The appellant was placed under suspension by the order of Director of Schools, Education, Hyderabad, dated 21‑7‑74 and was directed to report to the Headmaster, Government High School, Mirza K. Beg, Hyderabad. One Mr. Ghulam Rasool Panhwar, Sub‑Divisional Education Officer, Math, was appointed as the Enquiry Officer who held the enquiry in two phases. He submitted his preliminary enquiry report on 30‑7‑74 and the second report on 27‑11‑

74. In both these reports he held the appellant guilty of misconduct and corruption. The copies of both the enquiry reports have been produced on record. They show that then Enquiry Officer has examined a number of witnesses and‑‑ secured documents against the appellant in his absence. He submitted his reports on the basis of the evidence recorded by him as well as the record verified by him. The appellant was given the first show‑cause notice under the covering letter dated 27‑2‑74 signed by Sub‑Divisional 'Education Officer‑ showing himself as an Authorised Officer. The appellant submitted his reply to this show‑cause notice denying the charges. Thereafter the Sub‑Divisional Education Officer examined witnesses in absence of the appellant and sent his report to the Director. Thereafter the Deputy Director of School, Education, Hyderabad gave a second show‑cause notice to the appellant under the covering letter dated 5‑6‑

74. In the second reply also the appellant submitted his explanation denying all the allegations. The Deputy Director removed the appellant from service by the impugned order dated 8‑6‑

74. He preferred an appeal to the Director of Schools, Education, Hyderabad wherein, besides the factual aspects, he had pleaded that the Deputy Director was not competent to take action against him. His appeal was heard and dismissed by the Director of Schools, Education, Hyderabad's order dated 13‑8‑

74. The learned counsel for the appellant has taken up two legal points submitting that he need not go into the merits of allegations against the appellant. He has pointed out that the charge No. 1 regarding corrupt/demand/recovery of illegal gratification/bribe from the teachers by exercising duress/inducement etc. mentioned in the first notice against the appellant was given up by the Deputy Director in the second show‑cause notice. This, according to the learned counsel, shows that the charge of corruption was dropped by the authorities themselves. He further argued that the proceedings against the appellant had been initiated under "Efficiency and Disciplinary Rules, 1960" in July 1973 when the new Rules of 1973 had not come in force. He has referred us to Rule II of Efficiency and Discipline Rules, 1973 which protected the action taken under the repealed Rules of 1960. He contended that since the proceedings had already been initiated under the old rules, they were to be continued under the same rules and the procedure under the same rules had to be complied with. His grievance is that these rules provided that a charge‑sheet was to be given to the appellant before the inquiry was held against him and after the enquiry a final show cause notice was to be given to him along with the report of the Enquiry Officer. He contended that this procedure had not been followed and therefore the proceedings were entirely vitiated. In the alternative he contended that even if the new rules were made applicable to the appellant, then in the present case, if the authorized Officer decided that it was not necessary to have enquiry conducted through an Enquiry Officer, such a decision was to be placed on record and the matter was to be submitted to the Authority but in any case the appellant was to be given a reasonable opportunity of showing cause against the proposed action. It was further argued that under Rule 5 of the Rules, 1973 also the authorized Officer had to determine whether charge had been proved and whether it was a case for a minor penalty or major penalty. In either case, it was necessary to inform the appellant of the proposed action to be taken against him. The appellant's grievance is that in both the show‑cause notices the proposed action against him was not at all mentioned. He has next contended that the evidence against the appellant was recorded in his absence which violated the mandatory Rules and the principles of natural justice. He urges that in the light of above‑said legal position the action taken against the appellant was entirely in violation of the rules because in both the show‑cause notices, it has been specifically mentioned that the action was taken against him on the basis of the report given by the Enquiry Officer who failed to record evidence in presence of the appellant. The learned Assistant Advocate‑General appearing on behalf of both the respondents contends that only the preliminary enquiry was held against the appellant hence it was not necessary that the accused should be present at such an enquiry. He however, concedes that at the stage of regular enquiry the appellant was not present at any time and that the final report and notice were based on the evidence recorded in the preliminary enquiry held in absence of the appellant. Confronted with this situation the learned Assistant Advocate‑General had to concede that such an enquiry would not be made the basis for imposing any penalty on the appellant. When specifically enquired whether the authorized officer had recorded his findings to the effect that a formal enquiry was not necessary in the case, his answer :gas that the record does not show any such finding. We have heard both the counsel at length and have carefully examined the record. We have come to the conclusion that the arguments on behalf of the appellant, as explained above, have not been challenged. We hold that since the action against the appellant was initiated under the old Rules it shall have‑to be completed under the same rules as the same have been protected under rule 11 of the new Rules of 1973. During the course of arguments it came to light that the appellant as Supervisor Primary Education was in Grade 14 and the only officer in the Education Department who could come within the definition of "authority" would be the Head of Department if he was of Grade 20 and otherwise Government. In the present case the action has been taken by the Deputy Director who is neither the Head of the Department nor of Grade

20. Secondly, the officer authoized under the Rules could only be the officer next in grade to the "authority". Since the Deputy Director could not be treated as authority, the Sub‑Divisional Education Officer cannot be called an "authorized officer". Consequently both the show‑cause notices have been issued by the officers who were not be authorized under the Rules to issue the sane. The result therefore is that the entire proceedings against the appellant are, vitiated and illegal. We accordingly allow the appeal and set aside the orders passed by the respondents. Since we have come to the conclusion that both the show‑cause notices and impugned orders have been passed by officers who were not competent to issue orders, we hold that the; appellant shall be deemed to be in service and would be entitled to all the emoluments of the post which he was holding at the time of his suspension. The Department is at liberty to hold proper enquiry against the appellant for the charges levelled against him or refer his case to the Anti‑Corruption Department for the charges of bribery.