2010 PLP (C (PLC(CS))

SARDAR MUHAMMAD RAZA KHAN, J.

The appellant, with leave of court, has filed this appeal against the judgment dated 6-11-2000 of the learned Federal Service Tribunal Islamabad, whereby, his appeal against dismissal dated 16-7-1998 from service on charges of misconduct and corruption, was dismissed.

2. On the allegations mentioned in para-5 of the impugned judgment, Muhammad Zaheer Khan, former Chairman State Life Insurance Corporation of Pakistan was proceeded against. The inquiry officer Muhammad Hassan Bhutto, Secretary Labour etc., submitted his inquiry report (PP:64-84) and in conclusion held him guilty of misconduct. As a result thereof, the appellant was dismissed from service.

3. The only grievance strongly alleged by the appellant before the inquiry officer, before the Tribunal and also before this court is that he was grossly condemned unheard, that none of the witnesses holding him guilty were examined by the inquiry officer and so none of them was cross-examined by the appellant. That the golden principle of audi alteram partem was blatantly violated thereby condemning him through mala fide political victimization. In order to ascertain the truth or otherwise of the contentions, one has to revert to the very inquiry report.

4. It is conclusively proved, rather admitted that for the allegations levelled against the appellant, the inquiry officer had sent interrogatories to different concerned officers of the Corporation. That the answers to such interrogatories were made basis of the findings. Para-iii at P:68 of the inquiry report indicates the names of as many as fourteen officers who were sent the interrogatories, in answer whereto their statements were placed as appendix 4 to

17. Quite amazing it is to observe that despite the fact that all allegations constituted extensive questions of fact (appendix 4 to 17 concerning such questions of fact), not a single officer from amongst those fourteen was examined by the inquiry officer. The opportunity of cross-examining them being besides the point, even their examination-in-chief was never recorded. Nothing could be a better example of condemnation unheard where no witness was examined and cross-examined by the inquiry officer before arriving at such a serious conclusion relating to extensive questions of fact.

5. Rule 6(3) of Civil Establishment Code makes it mandatory for an inquiry officer to afford opportunity to the accused officer of cross-examining the witnesses appearing against him. Interestingly, in the instant case no witness had even appeared and had given his statement in respect of the interrogatories. Throughout, the matter remained between the inquiry officer and the witnesses who never subjected themselves to be cross-examined by the appellant.

6. Whether the Estacode provides to an officer under inquiry such opportunity or not, is altogether immaterial because even if not provided (which it is), the principle of audi alteram partem is to be read as a part of every statute, Rule or Regulation. We have been looking for the history of the concept of audi alteram partem and could find no better analysis than the one provided, in its wider amplitude, by the Supreme Court of India in Tulsi Ram Patel's case AIR 1985 SC 1416, in following words:- "....audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence...."

7. The above case is mentioned only with reference to the centuries old history of audi alteram partem. So far as the principle, as such, is concerned, there is no dearth of cases where the violation of the principle was seriously condemned. A full Bench of this Court in National Bank of Pakistan v. Muhammad Iqbal 1986 SCMR 234 had refused to grant leave to the Bank where the respondent officer was denied opportunity to cross-examine the witnesses. Where mandatory procedural requirements by the authority concerned are not satisfied, this Court in case of Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999 declared it to be a mala fide of law. Same view was held in Deputy Director Food v. Akhtar Ali 1997 SCMR 343 and in Secretary to Government of NWFP v. Saifur Rehman 1997 SCMR 1073 where the non-affording of opportunity to cross-examine was condemned as inherent legal defect. This view is maintained in our latest judgment in Syed Sajjad Haider Kazmi's case 2007 SCMR 1643. In the circumstances and in view of the abdundance of case law, we hold that the appellant was condemned unheard and the inquiry proceedings being void ab initio, could not be used against the appellant.

8. It may be recalled at this juncture that this appeal is fixed for rehearing, having already been accepted by a full Bench of this Court. In the earlier hearing, we were confronted with a legal question as to whether the matter should be sent back to the department concerned for initiating de novo proceedings or not. While writing the judgment it was felt that the arguments addressed in this behalf might not have been sufficient. Normally, in the given circumstances, the Court and the Tribunal do remand the cases for de novo inquiries but the distinguishing feature in the instant case was that the appellant, only about a month or so after inquiry, happened to retire on superanuation. On this crucial point we have fully satisfied ourselves by resorting to rehearing.

9. The learned counsel for the appellant in that behalf referred us to F.R.54-A which, for ready reference is reproduced below as inserted by S.R.O.1143(I)/80 dated 10th November, 1980:-- "[54A. If a Government servant, who has been suspended pending inquiry into his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spend on duty.]"

10. From the plain reading of the above Rule it become abundantly clear that what to talk of sending the case back to the department, even the pending disciplinary proceedings-against an officer abate if the latter attains the age of superannuation. The Rule entitles such officer to retire with full pensionary benefits and period of suspension is bound to be treated as period spent on duty. In the circumstances, the question of now sending the matter back to the department for holding de novo inquiry stands out of question. It may be stated at this juncture that the appellant has stated at the bar that he is not interested in claiming any back benefits and that he is only interested in getting the stigma removed.

11. The question relating to retirement during disciplinary proceedings has not remained restricted to the rule aforesaid but various forums have also taken notice of it. In Bilquis Nargis' case 1983 PLC (C.S.) 1141, the Punjab Service Tribunal held such proceedings to have abated if the officer retired during the course of action. In case of Deputy Director Food v. Akhtar Ali (supra), it was held by a full Bench of this Court that an officer superannuating during disciplinary proceedings ceases to be a civil servant as was rightly so excluded by section (2)(a)(b) of Punjab Service Tribunals Act, 1974. In case of Abdul Wali 2004 SCMR 678(b), it was again held that an employee could not be proceeded against after superannuation. The principle was reiterated in Sajjad Haider Kazmi's case (supra) where the officer was not only condemned unheard but also had retired. The holding of fresh inquiry was, therefore, disapproved, Muhammad Akhtar former headmaster was proceeded against by the department after one year of his retirement. It was condemned by this Court in Muhammad Akhtar's case 2007 PLC (C.S.) 400, The fundamental principle laid down in FR.54-A duly supported by the aforementioned cases decided by this Court leads us to the only unescapable conclusion that the case of the present appellant cannot be remanded back to the authority for holding de novo proceedings, after eleven years of his superannuation.

12. As a sequel to the above discussion we hold that the appellant was condemned unheard and the order dated 16-7-1998 of his dismissal suffered from mala fide of law. The appeal is hereby accepted and the impugned judgment dated 6-11-2000 of the learned Tribunal is set aside along with the order dated 16-7-1998 impugned before the Tribunal. M.H./M-9/SC Appeal allowed.