1990 PLP 347 (SCMR)

In case the defence is not received within the specified time the case will be decided ex parte:"

3. There was an effort on the part of the respondent to have access to all the records which could possibly be relevant to the charges and he either sought their inspection or the copies thereof. No reply to the charge‑sheet was received whereupon the ex parte order of dismissal was passed against him on 16‑10‑1971. The order of dismissal mentioned his request for record in the following words:‑‑ "Thereafter a series of reminders were issued to the official for submitting his defence intimating clearly that the remaining documents which he wanted to examine were not relevant to the issues and that all those documents that could have relevancy to the issues raised in the charge‑sheet in connection with the commission of fraud relating to S.B. Account No.332209 had been repeatedly shown to him whereas copies of all other relevant documents duly supplied as requested by him. However, the continued insistence on the part of Mr. Shamshad Hussain to examine and see documents listed above can only be regarded as dilatory tactics to delay submission of defence to the memo of charges. The official has been intentionally avoiding to submit his defence since 31‑10‑1973 which is a clear proof of his commission of fraud, otherwise he would have certainly refuted the allegations referred to above."

4. After filing a departmental appeal, the respondent approached the Service Tribunal contending that he had not been shown all the documents which he wanted to examine and to utilize in his defence, that it was not a case where summary proceedings for enquiry should have been adopted against him and that he had submitted an interim reply dated 23rd of June, 1975 which was not taken into consideration. He also challenged his continued suspension without periodical approvals from the higher authority.

5. The two Members of the Tribunal and the Chairman, each recorded a separate opinion, all subscribing to the view that it was not a case where summary procedure should have been adopted and the discretion conferred on the competent authority in this respect was not properly exercised. The Member of the Tribunal recording the leading judgment held that the continuation of the suspension without periodical approval of the competent authority was in violation of Government Servants (Efficiency and Discipline) Rules of 1973 read with the instructions dated 22‑2‑1975 contained at page 337 in the ESTACODE printed in 1983. As regards the adoption of summary procedure for enquiry, the learned Member of the Tribunal held as under:‑‑ "It is true that the rule has left it at the discretion of the Authorized Officer to adopt either a shorter procedure of show‑cause notice or a detailed procedure of holding regular enquiry by an Enquiry Officer but a decision in this respect is to be taken in the interest of justice and taking into account the facts and circumstances of the case; Indeed, it is a well‑established position that no discretion vested in an executive authority is an absolute or an arbitrary discretion but it is vested in him for a public purpose and must be exercised to secure the ends of justice

For, mere affording of an opportunity to submit an explanation cannot be considered a reasonable opportunity for showing cause but the authority concerned should have also given an adequate opportunity to the appellant to produce evidence to support his contention and refute the charges levelled against him in the usual way by examining and cross‑examining witnesses and addressing arguments before the authority concerned which could be done only if a procedure of holding a regular enquiry under rule 6 of the said Rules would have been adopted. I am, therefore, of the view that the facts of this case called for a decision to hold a regular enquiry through an Enquiry Officer and consequently the decision to adopt a shorter procedure of show‑cause notice was wholly unjustified and unsustainable. After all, it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." The learned Chairman in his opinion held that the question of suspension was not directly in issue and upheld the conclusion that the dismissal was not justified but gave the reasons as hereunder:‑‑ "It appears from the impugned order of dismissal dated 16‑10‑1978 that oral inquiry was actually held through an Inquiry Officer and written statement was actually obtained from the account holder, Noshina Malik, and her specimen signatures were also taken, and these facts were taken into consideration in passing the impugned order. Of course, it has been contended on behalf of the respondents that the appellant had not submitted his defence statement and, therefore, ex parte proceedings were taken and the impugned order was passed. The appellant's contention has been that he had asked for copies of relevant documents but they were not supplied to him and yet he had submitted an interim reply dated 23‑6‑1975, a copy of which has been filed as Annexure `C' to reply the memo of appeal. The respondents have denied that such a reply was filed by the appellant, but the denial is in the form that no such reply way available on the record. It appears from some of the documents filed the appellant, particularly the applications dated 29‑2‑1976 and 8‑10‑197E submitted by him to the same authority, i.e. the Post Master General, Southern Circle, Karachi, wherein he had made reference to the communication made by him on 23‑6‑1975 and it is evident that he had final submitted an interim reply which was apparently ignored. It is not denied that the appellant was not given personal hearing. In the circumstances, the ex parte order of dismissal impugned in this appeal is not sustainable." The third learned Member came to the conclusion that the questions of suspension and the dismissal were closely connected and that both suffered from taint. Order dated 16‑10‑1978 was set aside and his re‑instatement in service from 15‑1‑1972 was ordered with all back benefits.

6. Syed Muhammad Shahudul Haque, Advocate, the learned counsel for the appellant contended that even on the findings recorded by the Tribunal, the relief which has been granted could not be granted to the respondent while finally disposing of his appeal. It was established from the finding of the Tribunal itself that the suspension of the respondent on 15‑1‑1972 had taken place at a time when the Efficiency and Discipline Rules of 1960 were applicable in which there was no such requirement of periodical approval of suspension by the competent authority. Efficiency and Discipline Rules of 1973, read with the Instructions quoted from the ESTACODE made it obligatory. Even if these findings be upheld, the suspension could not be held to be ab initio illegal and re‑instatement in service with back benefits could not be ante dated to 15‑1‑1972 which is the date of suspension, but necessarily had to be from a date when the required approval was not obtained. On merits it is contended that the learned Chairman having come to the conclusion that there was a preliminary inquiry held into the matter and the admissions of the respondent on record being available, the shorter procedure of a show‑cause notice which issued after over 1‑1/2 years of the suspension, during which the matter was looked into, cannot be said to be a perverse exercise of the discretion conferred on the authority under Rule 5(1)(iii) of the Efficiency and Discipline Rules, or improper exercise of the discretion such as to merit interference by the Tribunal. Reliance has been placed on the decision in the Deputy Inspector‑General of Police, Lahore and others v. Anisur Rahman Khan PLD 1985SC134.

7. The respondent was present personally and un-represented before us. His main grievance was that he has been falsely implicated in the case and was not responsible for all that had happened.

8. So far as the legal questions on which leave to appeal has been granted are concerned, certain facts, relevant to the matter should be noted. In the first place, it was taken to be a case of red‑handed apprehension of the respondent while in the process of committing a financial irregularity. The apprehension was by a departmental superior himself. In the second place, immediately on taking cognizance of the matter, the statement of the respondent was recorded which contained substantial admissions with regard to facts alleged against him. The Tribunal held that it was not a confession, sufficient for holding the respondent guilty. This may be true, but in view of such admissions the competent authority could exercise discretion and dispense with an elaborate inquiry into the conduct of the respondent. The third factor to be noted was that inordinately long statement of allegations was provided to the respondent while explaining the background of the charges framed against him. As the entire matter related to the record, most of which was in his custody or under his control and supervision, recording of elaborate evidence with regard to contents thereof would have only confused the issue rather than facilitated the decision of the short controversy involved in the case. The Tribunal has been over‑impressed by the Courts' procedure of trial where not only substantive and procedural justice is done but there should be also manifest appearance of it. Before the departmental authorities, dealing with one of the subordinates, when the material on the basis of which the charges have been levelled is available, such insistence on a detailed inquiry and recording of evidence as in adversary proceedings, could defeat rather than advance the purpose of discipline which is intended to be served. In the decision of this Court in the case of Deputy Inspector‑General of Police v. Anisur Rahman Khan it was clearly laid down that "it is the nature of the allegation, the time, occasion, the place and presence or absence of superiors, etc. which may have a bearing on this question. No exhaustive or enumerative description of alt the facts and circumstances can be provided". In the case before us, not only a superior of the respondent apprehended him paridelicton, the statement immediately recorded, contained certain admissions which are of utmost importance, not for establishing his guilt or otherwise but for deciding whether a summary inquiry or a detailed inquiry, was to be held under the Efficiency and Discipline Rules. The recorded statement of the respondent is reproduced hereunder in extenso:‑‑ "Self written statement of Mr. Shamshad Hussain A.P.M. (A) Savings Cell Kar. G.P.O. I have attested the signatures of depositor of S.B. a/c No.332209. Since she comes in the office very often I could be familiar and, therefore, I had attested her signature. Her name is Nishan Malik. I do not know her father's name. I Rio not know whether she is married or not and therefore I do not know the name of her husband, if any. I do not know her exact age but I know she is a young lady of about 25 years. I do not know the address where she lives. I do not remember the person who introduced her for the first time. I have only seen her face on a number of occasions when she came to our office. I do not remember the occasions and the matters in which she came in the office. She, however, always came to see me in connection with postal matters. She used to come in the office during working hours in the presence of other staff. I can't name any particular official who had seen her. The warrant of payment dated 20‑12‑1971 for Rs.3,500 relating to S.B. a/c No.332209 was found in my drawer. This warrant of payment was found by me lying under the counter while I was leaving office on 14‑1‑1972 which I kept in my drawer. This happened at about 2‑30 hours yesterday and I kept it in the drawer without any body's knowledge."

9. The respondent stated before us that he was confined in a room and was not allowed to go out till he had got recorded the statement to the liking of his superiors and he wanted to explain it before us by saying that it was forced out of him and was not a voluntary statement. In his departmental appeal at page 8, (paragraph 16) he made the following note with regard to this statement:‑‑ "It is submitted that the Enquiry Officer has not taken into consideration the statement recorded on 15‑1‑1972. It is respectfully submitted that the appellant had stated the true and correct facts in the statement dated 15‑1‑1972. The Enquiry Officer in spite of my repeated demands and requests has not even supplied to the appellant the copy of the statement dated 15‑1‑1972."

10. In his interim defence also, he affirmed the same thing by stating as hereunder:‑‑ "So far recovery of the Warrant of Payment for Rs.3,500 dated 20‑12‑1971 from the custody on 15‑1‑1972 is concerned I hold fast to my statement recorded at the very moment. The position was also explained to Mr. Zahid Mallick, A.D.G. on the spot."

11. The admissions which are relevant for our purposes are that the respondent admitted having attested the signatures of the account‑holder, that he did not know the person who introduced her, but was certain that no particular official had introduced her. In the memorandum of appeal before the Tribunal what he stated about this was as hereunder:‑‑ "That the depositor came to the appellant complaining against the counter staff who did not trace her previous specimen signature and requested the appellant to attest her signatures on the basis of her signatures on her application dated 24‑7‑1971, but the appellant refused to attest it as he did not know her personally. After about an hour Mr. Zahid Mallick, Asstt. Director General of the Department phoned the appellant confirming that he knew the depositor Noshina Mallicic personally and asked the appellant to get her work done, but the appellant requested the said officer to attest*the fresh index card, which he did and sent the card through the depositor. The appellant then came to A.P.M. (Counters) alongwith the depositor and her signature duly attested by the said officer. Since the attestation by the said officer was not signed in suitable place and in presence of A.P.M. (Counters) he objected to it. In view of the telephonic directions and followed by the genuine attestation by said officer, the appellant also endorsed the attestation by adding his signatures in presence of the A.P.M. (Counters) as required by him on 22‑9‑1971. That the lower portion of the said Index Card is on record. As regards the whereabouts of its upper portion, its further despatch to audit office is borne out on the Voucher list. It is noteworthy that earlier than the attestations of her signature by Mr. Zahid Mallick, Asstt. Post 'Master General and on its strength by the appellant on 12‑9‑1971 it was on 16‑9‑1971 that an application for the issue of a cheque book had already been made to the Asstt. Post Master (Counter) by the depositor and on the same date a cheque book was issued to her without the requirement of attestation of her signature. Obviously before issuing the cheque book the previous specimen signature, which was indicated on 22‑9‑1971 to be not traceable must have been utilized a week earlier for comparison."

12. The warrant of payment dated 20‑12‑1971 on which the last draw was made was admittedly found in the drawer of the respondent and was kept by him there. His explanation for it has been rejected and is not borne out by contemporaneous record which was required to be maintained for such an instrument. It cannot, therefore, be said that on the basis of the admissions made and the documents available, departmental authorities could not have adjudged him guilty of the dereliction of which he was charged. It is not necessary to examine the question of suspension and its continuation without proper authority 1 because the dismissal order itself is not open to exception.

13. As regards the second question on which leave to appeal has been granted, there was indeed a proposal that a regular enquiry through Enquiry Officer should be held in the case. The Authority, however, took a different view and without expressly recording an order for the appointment of an Enquiry Committee or an Enquiry Officer, approved the charge‑sheet when it was subsequently put up before him. The charge‑sheet was in the form of a show cause notice enumerating the charges, the material on which it was based and the extent to which the respondent was involved. The shorter procedure of a show cause notice was adopted by serving such a charge‑sheet and this was a substantial compliance with the requirements of Rule 5 of the Efficiency and Discipline Rules, 1973. The respondent had no vested right in the procedure and the competent authority could decide on the material which was before it and adopt the shorter procedure, which it did. No legal defect can for either of the reasons be attributed to it.

14. This appeal is accepted. The judgment/order of the Tribunal is set aside and that of the departmental authority restored. No order as to costs. M.B.A./67‑D/S Appeal accepted.