1984 PLP (C (PLC(CS))

KH. ABDUS SAMAD (MEMBER).‑The appellants have challenged Go vernment order, dated 14th September, 1982, under section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975 whereby they have been dismissed from service by the Respondent. By virtue of these appeals they pray that the appeals be accepted and impugned order, dated 14th September, 1982 be declared as being without lawful authority and of no legal effect. As in both these appeals, point of law is identical and the facts are also same so vve will dispose of these appeals with cane single judgment. Briefly the facts leading to these appeals are that both the appellants were serving Animal Husbandry Department of Azad Jammu and Kash mir Government as Sheep Development Officer and Naib‑Qasid, respec tively. On 11th March, 1982 the appellants were served with show‑cause notices by the Secretary of the Department, and they replied those notices on 24th March, 1982. The respondent was pleased to dismiss both the appellants on 14th September, 1982 and they preferred their Review petitions which were turned down. Being aggrieved with the impugned order they have preferred appeals in this Tribunal. The neces sary background to the present appeals is that Deputy Director Live stock Animal Husbandry Department, addressed the following letter to the Deputy Director, Animal Husbandry Department, Azad Kashmir Government :‑ After receiving this letter, the Director Animal Husbandry A. K. Govern ment on 28th August, 1979, appointed the Deputy Director Livestock as Enquiry Officer and directed him to conduct enquiry and submit report within one week. In compliance with these orders, the Deputy Director Livestock as Enquiry Officer wrote a letter to Dr. Iftikhar Ahmed, Officer Disease Investigation of the Animal Husbandry Department on 4th September, 1979, saying :‑ What happened to this letter, is not known. The record is silent. Besides, this letter, the Enquiry Officer recorded the statement of appellants and some persons of the concerned Illaqa where the amount was distributed regarding the Sheep Breeding Development Farms. The statements are reproduced below for reference :‑ In the same form the statements of Ghulam Yasin, Buland Khan, Roshan, Hassan Dad, were recorded on 24th September, 1979 by the Enquiry Officers, he submitted a report to the Director, Animal Husbandry on 16th December, 1979, and the relevant portion of this enquiry report is repro duced below for further appreciation of the case :‑ Since D. I. O‑ Officer was not available to him he confined himself to verbal talk of the said officer and wrote that ; On 17th December, 1979 the above report of Enquiry Officer was for warded to the Secretary by the Director of Animal Husbandry Depart ment. In order to ascertain the nature of these allegations, the Secretary was directed to proceed as Authorised Officer against the appellants by the respondent‑Government. In the capacity of Authorised Officer under E and D Rules, 1977 the Secretary recorded the following statements of the Officers of his depart ment in the absence of the appellants on 28th February, 1982. These statements are very material for disposal of the appeals and are repro duced flow for convenience and reference ‑ On the basis of these statements of the above Officers and the enquiry report of Dr. Safdar Durrani, Deputy Director Livestock i.e. No. 2009, dated 16th December, 1979 the following show‑cause notices were issued to the appellants by the Authorised Officer i.e. Secretary of Department. We reproduce these notices extension. No. 3/AH/PA/28/82, dated 11‑3‑1982 Office of the Secretary Animal Husbandry Azad Government of the State of J & K, Muzaffarabad. (Authorised Officer under E & D Rules, 77) To, Dr. Ameerullah, Sheep Development Officer, c/o Director Animal, Husbandry, Azad Government of the State of J & K, Muzaffarabad. Subject :‑Disciplinary action‑show‑cause notices under rule 6/37 of E & D Rules, 1977. (1) During 1978‑79, you Dr. Ameerullah, Sheep Development Officer was deputed by the Department of Animal Husbandry to disburse Rs. 1,20,000 at the rate of Rs. 6,000 per farmer, to these farmers in Neelum Valley, who had, under the 17evelapmeae scheme "Pilot Scheme for increased sheep production through Govern ment Assistance" completed the construction of sheds for sheep. (2) Whereas the undersigned is satisfied from the available record that while disbursing the amounts to the farmers, you Dr. Ameerullah, in collaboration with Naib‑Qasid Abdul Jaleel, extracted/ received Rs. 12,000 from some of the beneficiary farmers as illegal gratification, in consideration of making them payments of Rs. 6,000 each. (3) Your above‑mentioned act has made you guilty of corruption and, therefore, you. are liable to be proceeded against under E and D Rules, 1977 and penalised with one or more penalties as mentioned in rule 4(1) of the above‑mentioned Rules, which may extend to your dismissal or removal from Government Service. (4) The satisfaction of the undersigned mentioned in para. 2 above is based on the fact that you had, yourself during November/ December, 1979, confessed your guilt (of illegally receiving Rs. 12,000 from the farmers, in collaboration with Abdul Jaleel Naib‑Qasid) in the presence of Director Animal Husbandry, Deputy Director Poultry and Disease Investigation Officer. Your confession was reported by the Deputy Director Livestock in para 11 of his Report No. 2009/79, dated 16th December, 1979 addressed to Director Animal Husbandry and the contents of para. 11 of the report are also confirmed by the Deputy Director, Animal Husbandry, Disease Investigation Officer and Deputy Director Poultry whose written statements have been recorded. Copies of Deputy Director, Live stocks above‑noted Report No. 2009/79, dated 16th December, 1979 and the statements of above‑named officers are enclosed herewith for your information. (5) You are hereby given an opportunity of showing cause, why action proposed to be taken against you enumerated in para. 3 above should not be taken. If you wish to show cause, the same should be delivered to the undersigned personally or through Registered Post A. D. within 14 days of the receipt of this letter. (Sd.) (Tarig Masud), Secretary, Animal Husbandry The appellants replied these show‑cause notices and denied the charges as levelled against them. The Authorised Officer submitted the following report to the Chief Executive (Authority) against the above appellants. The relevant portion of his report reads as under :‑ On 26th July, 1982 both appellants were granted personal hearing by the Chief Executive (Authority). He was of the view that : ..... relevant portion reproduced below : The above background and history of the case resulted in dismissal of the appellants. They have challenged the impugned order vide their memorandum of appeals. Their ground of attack is that the procedure adopted by the authorities is against the spirit of E & D Rules, 1977. Only the show‑cause notice and the alleged confession of the appellants has been made the basis of dismissal. They have never been heard and the witnesses have been examined in their absence. The enquiry conduct ed by the Authorised Officer in not binding on them. They pray for setting aside of the impugned order and restoration to their substantive posts. The learned Advocate‑General in this written objections have supported the action taken by the respondent and violation of the E & D Rules is denied by him, and he prays for dismissal of these appeals. The learned counsel for the parties have argued these appeals. We consider these appeals on a whole and have gone through the record carefully. The contention of the learned counsel for the appellants is that all the proceedings taken against the appellants are void ab initio and the appellants are not bound by the report of the Authorised Officer. The enquiry has been conducted in the absence of the appellants. The action taken is ex parte, and without any subsistance. The statement of the appellants and other Zamindars as recorded by Dr. Safdar Durrani is of no legal effect. He was not competent to work as Enquiry Officer. His appointment as Enquiry Officer by the Director Animal Husbandry is against the mandatory provisions of E & D Rules, 1977. Appointment of Dr. Safdar Durrani as Enquiry Officer by the Director Animal Husban dry is unwarranted and illegal. Secretary of the Department was com petent to forward the matter to the Government and get necessary orders for enquiry against the appellants (Dr. Amirullah). Since Dr. Amirullah as Gazetted Officer in Grade 17 of N.P.S. and the Director Animal Husbandry ought to have referred the 1st complaint, dated 21st August, 1979 to the Government for the appointment of Enquiry Officer. Dr. Safdar Durrani was informer and complainant against the appellants and his appointment as Enquiry Officer cannot be supported for the reason that Dr. Safdar Durrani is a witness against the appellant and later on has acted as prosecutor and judge in the matter of appel lants. Finally the appellants counsel has referred to other identical cases decided by this Tribunal, where the enquiry was not properly conducted by the authorities appointed under E & D Rules of 1977. The learned counsel for the respondent has referred to his para-wise reply in the written objections and has not denied the judgments of this Tribunal in identical cases. In view of the above contention of the parties counsel, we are of the opinion that enquiry on the basis of the complaint, dated 21st August, 1979 launched by Dr. Safdar Durrani, Assistant Director Livestock against the appellants is void ab initio and so is not binding on the appel lants. The reason is that Dr. Safdar Durrani being the informer and complainant could not be legally appointed as Enquiry Officer and the, Director Animal Husbandry Department. His role as a judge and prosecutor bring us to the conclusion that the report of Safdar Durrani is based on ill‑will and is of no legal authority. The Secretary of the Animal Husbandry Department is the Authorised Officer according to Government Orders Nos. 2186 and 929/79, dated 17th October, 1979 for any action against Grade‑17 Officers of his department. As such we agree with the learned counsel for the appellant that the enquiry report of Dr. Safdar Durrani No. 2009, dated 16th December, 1978 is of no legal effect and very fairly, the appellants are not bound by the same. The important aspect of the case is that it is alleged by the appellant that the witnesses have been examined against them in their absence and so that' cannot be punished on the basis of their statements. The pro ceedings are ex parse and not at all binding on the appellants. As referred above we have reproduced the statement of Dr. Manzoor Ahmed Khan, Iftikhar Sheikh, Mr. Salah‑ud‑Din, as recorded by the Authorised Officer. These statements are based on the report of Safdar Durrani, as these witnesses have very frankly referred to report No. 2009, dated 16th December, 1978 and after reading the same have half‑heartedly referred to the alleged confession of Dr. Ameerullah. Since these statements were recorded in the absence of appellants and as such cannot be made base for any punishment and so are not binding on the appellants. We agree with the contention of appellants that they have been denied the right of defence, and have been prejudiced, and also .the E & D Rules, 1977 have been violated. The conclusion drawn by the Authorised Officer are not based on any evidence and merely the statements of the Grade‑l8 Officers (against Grade‑17) cannot be taken into consideration for the reason that the appellants have not been associated with the Enquiry and they have not been provided the opportunity of cross‑examining the senior officers. We are constrained to remark that the appellants have been con demned merely other statement of the senior officers and alleged con fession. The confession of Dr. Amirullah has been used against Abdul Jalil, and all this happened without any positive proof. Section 24 of the Evidence Act is clear and it is established rule of law that the confession of one accused cannot be used against his accomplice. The statement of witnesses and personal views of Dr. Safdar Durrani do not prove any confession against the appellants. Finally we are of the view that the impugned order cannot be sustained on the ground that (1) The Enquiry is ex parte. (2) The witnesses have not been cross‑examined by the appellants. (3) The procedure on prescribed E & D Rules has not been adopted and complied. (4) The conclusions drawn by the Authority and Authorised Officer are not based on any evidence. (5) The evidence of strict proof is lacking. (6) The appellants have not been provided opportunity of defence. Finally we are of the view that in order to meet the ends of justice a proper enquiry is required and we direct the respondent to conduct proper enquiry under law and law only against the appellants. Resultantly these appeals succeeded. We set aside the impugned orders, dated 14th September, 1982, and restore the appellants to their original posts with full back benefit under rules. The copy of this judgment be placed on the file of Abdul Jalil. No order as to costs. Parties be informed accordingly. The files after completion be consigned to record room. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑I agree with the learned Member of the Tribunal that the impugned order in this appeal needs setting aside. The allegation against Doctor Amirullah Khan, appellant was that he received illegal gratification in his capacity as Sheep Development Officer to the tune of Rs. 12,000 from the farmers to Neelum Valley who had been granted Rs. 6,000 each for the construction of shed: for sheep under the Development Scheme known as "Pilot Scheme for the increase of sheep production through the Government system" while distributing the said amount to them. Such a charge requires regular inquiry to determine the correctness or otherwise of the same and therefore, the Authorised Officer was bound under law to appoint Inquiry officer or Inquiry Committee, under rule 6 of the Efficiency and Discipline Rules as both the facts of the case and the interest of justice made such a demand. His failure to do so and instead adopting the summary proceedings of show‑cause notice has rendered the whole dis ciplinary proceedings against the said appellant unlawful. The said appellant has been found guilty by the. Authorised Officer and the authority on the basis of his confession alleged to have been made by him before some officers of the Animal Husbandry Department namely Raja Manzoor Ahmed, Deputy Director Dr. Sheikh Iftikhar Ahmad, D. I. O. and Doctor Salah‑ud‑Din, Deputy Director, Livestock. This confession of the appellant could not be used against him because the same was made before the initiation of disciplinary proceedings against him in his absence. The appellant had denied having made any confession to any of the officer of the Department mentioned above. Such a confession could be considered against the appellant, if the persons before whom it was alleged to have been made by the appellant would have appeared and made statement before the Inquiry Officer in his presence, and he had also been provided with an opportunity to cross- examine them in order to testify the truthfulness of their statements. But in this case, the statements .of the aforesaid officers recorded at the back of the appellant and that to before the departmental proceedings were started against him by serving upon him show‑cause notice, were utilized against the appellant for awarding him major penalty of dismissal of service which course of action was not warranted under law. It, even offended the principle of natural justice to have found him guilty of the charge of extracting illegal gratification froth the farmers on the basis of the statements of few persons to the effect that he had confessed before them the aforesaid charge. So for the case of appellant, Abdul Jalil, Naib‑Qasid, he has been found guilty merely on the statement of Amirullah Khan, appellant before the afore-named officers of the Animal Husbandry Department that he had received illegal gratification from the farmers with his help who had also shared the illegal gratification with him. We cannot imagine that such a confessional statement of the appellant can ever be made the basis of finding Abdul Jalil, appellant guilty of receiving illegal grab fication. Therefore, the impugned order of dismissal of the appellants, is set aside who shall stand restored to their respective post w. e. f. the passing) of the impugned order. This order will not stand in the way of the; Government to initiate fresh disciplinary action, against them in accordance with the Efficiency and Discipline Rules in the light of the above observation. A. F. Appeals accepted.