1988 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ (CHAIRMAN).--Appellant has assailed the impugned order conveyed to him vide letter No.17849-54/A-28/M. Ikram/Senior Clerk/D.R-111 dated 11-8-1986 passed by respondent No.l through which not only he was dismissed from service but was also awarded with the punishment of the recovery of Rs.2,50,811/21 as arrears of land revenue. According to him, he was appointed as Junior Clerk in the Education Department in the year 1972 and later on promoted as Senior Clerk by respondent No.3 on 2-6-1981. At the time of his dismissal he was working in the office of Sub-Divisional Education Officer (Female) Nowshera and went to the treasury on 2-2-1985 to collect the salary of the incumbents. While coming .back in the company of one Umar Zada Naib Qasid, he was looted by two unknown dacoits near Iqbal Park Nowshera and a sum of Rs.2,45,800 was snatched from him. The remaining Rs.5,011 were lying in his pocket to get the one rupee notes from the Bank. The occurrence was reported in P. S. Cantt. , Nowshera vide F. I. R. IIat No.49 dated 2-2-1985 at 12.45 P.M. under Article 17(3) of the offences Against Property (Enforcement of Hudood) Ordinance, 1979. However, the appellant and the said Naib-Qasid were arrested by the local police and remained in police custody for three days and then were sent to judicial lock up till 3-7-1985. Appellant was forthwith suspended but on 3-7-1985 the appellant was recommended by the local police to be released a/s 169, Cr.P.C. and he was so released by the Ilaqa Magistrate on the same day. After that he made representation to the respondents for his re-instatement but an enquiry committee was appointed by the respondents to conduct the enquiry in the case who served the charge-sheet upon him on 16-2-86 which was answered by the appellant on 22-2-86. The procedure adopted by the enquiry committee was illegal and ultra vires of the rules and the law, he was not given the opportunity to cross-examine the witnesses. Even his request for defence evidence was not accepted by the enquiry committee. The show-cause notice was defective, the charge-sheet was also not proper and the dismissal order was against the basic norms of justice.

2. Respondents submitted the written statement and arguments were advanced by both sides. In the light of the record and arguments we propose to dispose of the appeal as under: -

3. Learned counsel for the appellant argued that charge-sheet is defective as no major penalty was mentioned in it, statement of appellant was recorded in question answer form and not in descriptive form. Opportunity of personal hearing was not-afforded to him. Witnesses cross-examined the witnesses in the instant case. Appellant was examined on 28-2-1986 and P.W. Inamul Haq and S.H.O. P.S. Cantt. were examined on 20-4-1986 and 3-3-1986. He was not examined after the conclusion of the evidence. He requested for certain documents but he was not supplied with their copies. He was suspended on 2-2-1985 and remained so till his dismissal on 11-8-1986. No subsistance allowance was given to him. Approval regarding suspension was not obtained in accordance with rules. The co-accused Umar Zada was re-instated in service.

4. On the other hand, learned State counsel argued that proper enquiry was conducted by the enquiry committee. He was the person who was responsible for the loss of the amount. He committed delay in lodging the report in the P.S. in order to give opportunity to the dacoits to flee from the clutches of law. The case has not been cancelled against the accused and he was released only a/s 169 Cr.P.C.

5. We have given our patient hearing to the arguments advanced by both sides and have come to the. conclusion that the charge-sheet Annexure 'I' does not contain the penalty specifically and he was labelled with misconduct with the further intimation that he will be liable to major penalty mentioned in the N.-W.F.P. Govt: Servant (Efficiency & Discipline) Rules, 1973. However, a person who is going to be proceeded and facing an enquiry must know in full that what penalty shall be imposed upon him. By writing a vague word like misconduct and major penalty the enquiry officer/enquiry committee is not absolved of its liability under the law of the land. The person must be given full opportunity to defend himself and the charge-sheet which is the basis of the enquiry must, therefore, be detailed and descriptive. Further if an accused-official requests the enquiry officer to provide him with certain documents, that request must be either rejected with reasonable grounds or such documents should be provided to him to defend his rights. Of course if the documents are priviledged one the enquiry officer under the law has got the powers to reject the request, put in all cases there must be a specific order which in the instant case does not appear on the record of the enquiry file. In the present case the enquiry was conducted in a fanciful manner. The witnesses cross-examined .the witnesses and some witnesses were examined after the statement of the appellant was recorded, but appellant was not afforded with the opportunity of his re-examination. The purpose of the enquiry is to bring all the material on the file and an accused-official must be given the chance to rebut the allegations, levelled against him by the witnesses. Moreover, the witnesses were not examined on oath and a questionnaire was given to the appellant to furnish the replies to the different questions. Enquiry is a judicial semi-judicial function and every enquiry officer/ Tribunal must follow the general law of the land in conducting the inquiry. The suspension period of the appellant covers a period of about 11 years but only once approval of the authority was obtained in this connection. While under the law if the suspension period is extended over three months, then the approval must be obtained after every quarter of the year. Umar Zada the Naib-Qasid from whom the amount was snatched, was later on re-instated by the respondents but not the appellant, although in the beginning he was also suspected as a co-accused. The treatment with both the persons must have been the same but in the instant case, the respondents on the basis of suspicion labelled the appellant with the charge of misconduct and embezzlement of the Government money. There is no order in writing of the Officer Incharge of the Sub-division regarding the deputation of the appellant to collect the money from the bank. No funds were allotted by the department to encash such a huge amount from the bank in a safe manner. After all a huge amount must be collected by office hand in such a manner that nobody should dare to lay his hands upon it. Who is responsible for this negligence is a mystery and the appellant cannot be punished on speculation and imagination of his officers.

6. So far as Section 169 Cr.P.C. is concerned the application of the P.S. which is Annexure 'C' is to the effect that the "Appellant was interrogated through a special team but no recovery was made and there is no evidence against the accused-appellant and he may be released under Section 169 Cr.P.C." In the light of that request the Ilaqa Magistrate made the order vide Annexure 'D'. So it is quite clear that case is not alive against the present appellant but against the unknown dacoits and the appellant cannot be punished for that.

7. On the basis of the above, we have come to an irresistible conclusion that the charge against the appellant was not substantiated during the enquiry proceedings and by accepting the present appeal with costs, we set aside the impugned order by re-instating the' appellant from the date of his dismissal and allowing him all the back benefits. Copy to the parties concerned and file be consigned to the record room. S. Q./60/Sr.N Appeal accepted.