1979 PLP (C (PLC(CS))

P L D 1967 Dacca 800: Natural justice‑‑Show‑cane notice‑Mere giving of such notice not enough‑Delinquent should be clearly and unequivocally informed of what he said or did‑Allegation in notice that delinquent indulged in highly prejudicial and objectionable activities during the President's speech‑‑‑Held: Petitioner not served with show‑cause notice in accordance with law. P L D 1965 S C 605: Suspension of export Registration Certificate followed by notice to exporter to show cause why certificate should not be cancelled‑‑ Such notice not containing precise charge but mentioning provisions of sub‑clauses (h) & (g) of S. 4(1)‑‑Mere reference to relevant items of provision hold cannot be said to apprise exporter of precise charge against him‑‑‑Exporter thereby not afforded opportunity of showing cause‑‑‑Maxim: Audi alteram partem (no one should be condemned unheard). PLD 1965SC90: Wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the cuactment giving such power excluding the application of the principles of natural justice, the Courts of Law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case. P L D 1977 Lah 878 : Natural justice, principles of‑Show‑cause: notice‑1t is axiomatic that if a person has to answer a charge he must be apprised clearly of its contents to make him understand its graveness and to enable him to make a proper defence.

9. The learned counsel for State argued that there was no bar under the rules to stop the Authorised Officer to appoint an officer on his behalf to conduct informal investigations of the facts of the case, or to make this investigation himself to satisfy himself before he could award a minor penalty or to formulate his recommendations for the orders of the Authority for a major penalty. 1n the absence of any positive provisions in the rules to stop him froth this action there was no violation of any rules.

10. The learned counsel for State also explained that the officer in his reply to the show‑cause notice has clearly understood the nature of the charge and has, in detail, explained his position, vis‑a‑vis the charge, levelled against him. As such, it cannot be said that the charge was not a speaking one and was trot specific to afford him the opportunity for defence.

11. He further argued that it was for the appellant to point out to the Authorised Officer or the Authority if any defect had remained in the observance of the prescribed procedure. Since the defect, if any, was not brought to the notice of the Authorised Officer or the Authority, the defect in the observance of the procedure, cannot be the responsibility of the punishing authority.

12. The learned counsel for State relied on the case of Saeeda Tasneem Ara v. Province of West Pakistan (1). "Reasonable opportunity to show eause‑‑‑Substantial provision of Law‑ lntended to provide opportunity to Government servant to show cause and produce evidence against proposed action‑Government servant must, however himself move punishing authority for opportunity to rebut allegations by production of evidence‑‑Person never asking for such opportunity, held, not deprived of opportunity to show cause . . . . . . . (1) P L n 1967 Lah. 1112 13 After hearing both the parties, we come to the following conclu sion (a) There is no scope in the Efficiency and Discipline Rules, 1973 for the competent authority authorised officer to send an independent officer on his behalf to make preliminary or informal investigations. The authorised officer is competent to appoint an Inquiry Officer formally and even an Inquiry Committee, as contemplated under rule 6 of the said Rules, but he is clearly precluded from either acting himself as an Inquiry Officer or to make informal investigations through any other officer about the charges levelled against the accused officer. We, therefore, hold that Mr. Yazdani Khan's investigations been against the rules could not be taken into consideration for formulation the recommendations for punishment forwarded to the authority b the authorised officer. It has been admitted by the Government side that the evidence collected and facts obtained through informal investi gations of Mr. Yazdani Khan and the authorised officer himself, were used in formulating the recommendations on the basis of which the authority has awarded the punishment of dismissal. (b) Likewise, we are not pursuaded to believe that once action under rule 5(3) for issue of a show‑cause notice was taken and the replies were received from the accused officer, it was open to the authorised officer, to resort to some other sort of independent enquiry under rule 6, B without having withdrawn the proceedings already, taken under rule 5, nor under rule 6, which renders this action as against the intentions of the rule, and is a6 initio void. (c) We also do not agree with the learned counsel for State that the onus for pointing out the inadequacy in the observance of the prescribed procedure lies on the accused officer is for the Government to observe their rules correctly. It is also for the Government to understand their rules adequately to enforce them. In this case, we find that the Establishment Division which is the highest executive authority of the Government in respect of the Federal Establishments teas not properly appreciated the intentions of the rules framed by themselves to enforce them correctly. This is particularly unfortunate when it comes from the Establishment Secretary himself, (d) We fail to convince ourselves regarding the plea taken by the State counsel that since the officer has already explained his position, vis‑a‑vis the charge levelled against him, in detail, the charge should be considered to be sufficiently specific and speaking. The officer has, no doubt, tried to explain his position carefully but the charge levelled against him, as contained in para. I of the show‑cause notice dated the 13th August 1975, was vague and also non‑specific. The charge only says . . . that Mr. Avais Mazhar has misbehaved with the Lady Assistant. Commissioner, Faisalabad which was unbecoming of an officer. The charge being so unspecific and vague, it is tantamount to denial of the reasonable opportunity within the framework of the Efficiency and Discipline Rules, to call upon the accused officer to offer his defence without giving the details of the events and the charges specifically with reference to which he is required to defend himself. If this opportunity is denied, the whole proceedings stand vitiated. (e) The authority relied upon by the learned State counsel does not advance the Government case any further. On the other rind, it supports the appellant's contention that reasonable opportunity should be given to the aggrieved person to show cause and to produce evidence against the proposed action, because it has been held in that authority that reasonable opportunity to show cause is substantial provision of law. The appellant had, in fact, moved the punishing authority for opportunity to rebut allegations by production of evidence when he requested for cross‑examination of the prosecution witnesses or to produce his own defence witnesses. (f) It is appreciated that the procedure prescribed under rule 5 to punish the officer only on the receipt of a reply to a show‑cause notice without issuing to him a statement of allegations in detail, or without conducting a detailed enquiry, without examination of witnesses and cross‑examination is already stringent enough to permit any furthers vagueness in the issue of the show cause. (g) We are constrained to observe painfully the manner in which this member of a senior public service has been treated who is expected to perform important functions of maintenance of law and order during a particularly sensitive political atmosphere. We feel that there should have been a better way to treat this most sensitive human material, called a senior public servant.

15. With the above observations, we accept the appeal of the petitioner. We accordingly order his re‑instatement with effect from the date he was dismissed from service, with all consequential benefits accruing to him in continuity of service.

16. Parties to be informed accordingly. SIIAH ABDUR RASHID (CHAIRMAN).‑‑I fully agree with the conclusion arrived at by my learned brother in para. 15 that this appeal should be accepted and the appellant re‑instated with effect from the date he was dismissed from service with all consequential benefits.

17. This is a peculiar case in which the show‑cause notice was so vague that it did not give any indication of the misbehaviour of the appellant with the Lady Assistant Commissioner, No doubt, the appellant on conjec tures, tried to explain his conduct nevertheless, the entire allegations remained in the veil of mystery. The inadequate allegations in the show‑cause notice materially prejudiced the case of the appellant.

18. In the scheme of the Government Servants (Efficiency and Discipline) Rules, 1973, two procedures are aid down for proceeding against a delinquent officer. The first procedure is that he should be served with a Charge‑sheet and statement of allegations should be furnished to him and the Enquiry Officer or the Enquiry Committee should be appointed to investigate into the charges. The Authorised officer would then take a decision on the receipt of the report of the Enquiry officer or the Enquiry Committee. The other procedure is that the accused officer should be informed of the action proposed to be taken in regard to him and the grounds of such action should be stated in writing. This alternative procedure further provides that the accused officer should be given reasonable oppor tunity of showing cause against the proposed action.

19. It is settled principle of rule of law that when a certain thing is required to be done in a particular way that should be done in that way and in no other way. In the present case, the authorised Officer by straightaway serving the show cause was not justified in ordering and making random enquiry thereafter without associating the appellant and without affording him opportunity of examining the witnesses whose statement were recorded or who were contacted in connection with the charge against him. In this manner, the principle of law has been violated which gives the appellant every cause of action to get the order of dismissal set aside. My learned brother has fully discussed this aspect of the case in his collaborate order, and I entirely agree with the reasoning given therein. Appeal accepted,