1993 PLP (C (PLC(CS))

JALAL‑UD‑DIN AKBARJI, J.‑‑‑Raja Iqbal Hussain, a Tehsildar of Revenue Department of the Province, petitioner herein, has instituted on 13‑7‑1991 this Constitutional petition (W.P. No. 92 of 1991) against Secretary, Board of Revenue, N.‑W.F.P., Peshawar and others seeking relief of declaring the minor penalty of stoppage of two increments by order dated 27‑10‑1987 of Secretary Board of Revenue, N: W.F.P., Peshawar as illegal, ultra vires and without lawful authority and of no legal effect.

2. The facts as disclosed in the petition are that the petitioner functioned as Land Acquisition Collector, Khan pur Dam, from 19‑9‑1981 to 14‑10‑1983. The petitioner was served with show‑cause notice dated 29‑4‑1987 issued by Secretary, Board of Revenue N.‑W.F.P., Peshawar, as Authorised Officer wherein it is alleged that the petitioner received on 24‑6‑1982 an objection petition under section 18/30 of the Land Acquisition Act of one Mst. Shamim Begum which he deliberately avoided to dispose of and was thus liable for maladministration and disorder in the office, the Authorised Officer, therefore, recommended dismissal from service but decided that in the circumstances of the case it was not necessary to conduct a formal inquiry into the allegations, therefore, in pursuance of provisions contained in Rule 5(3) of the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, issued notice for show cause as to why the proposed penalty (dismissal from service) be not imposed. The petitioner replied to the show‑cause notice and denied the charge, prayed for exoneration from the same and wished to be heard in person. The Authorised Officer heard the petitioner on 19‑8‑1987 and thereafter issued a second show‑cause notice for imposition of minor penalty "stoppage of two increments with cumulative effect". The petitioner replied to this show‑cause notice and pointed out that no enquiry has been held and there were no grounds for inflicting the proposed punishment. The Authorised Officer by an order dated 27‑10‑1987 which is impugned in this petition, imposed the penalty proposed in the second show‑cause notice upon the petitioner and one pair. Abdul Malik, who has also then Land Acquisition Collector, Khan pur Dam. The petitioner preferred service appeal which was heard by the learned Senior Member, Board of Revenue, N.‑W.F.P. and by a detailed order dated 21‑6‑1990 dismissed the appeal of the petitioner after scrutiny of preliminary inquiries. The order of the learned Senior Member, Board of Revenue and the exhaustive inquiry report are placed in this case file. The petitioner also filed an appeal before the Service Tribunal, N.‑W.F.P., Peshawar which was dismissed by judgment dated 20‑1‑1991 by Member. of Tribunal for want of jurisdiction. Hence this petition.

3. Learned counsel for the petitioner vehemently argued that inquiry in presence of the petitioner before imposing the penalty upon the petitioner is requirement of the law and no punishment can be inflicted upon the civil servant without holding an inquiry. Further, it was argued that there is no N: W.F.P. (Jalal‑ud‑Din Akbar JJ, J) provision for holding preliminary inquiry and no civil servant can be condemned on the basis of findings of such inquiry which is held on the back of an accused officer without affording opportunity of defence and hearing as well cross‑examining the evidence produced against him. Learned counsel for the petitioner referred to Rule 5 of N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 and section t6 of the Civil Servants Act and case law 1987 SCMR 602; PLD 1980 SC 310, PLD 1986 SC

162. Learned AA: G. submitted that there was no bar for holding preliminary inquiry and the Authorised Officer was competent under the law and the rules framed thereunder to hold or .not to hold inquiry in case of allegations against an accused officer under Rule 5 of N: W.F.P., Government Servants (Efficiency and Discipline) Rules, 1973 and as such the Authorised Officer was competent to impose penalty under the law. Reliance was made on PLD 1979 SC 711 and PLD 1985 SC 134.

4. As most of the arguments in this case are based on Rule 5 of N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, therefore, the same is reproduced as under:‑‑ "Inquire procedure.‑‑The following procedure shall be observed when a Government servant is proceeded against under these rules:‑‑ (1) In case where a Government servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him provided that any continuation of such leave or suspension shall require approval of the authority after every three months. (2) If the authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply. (3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall‑‑ (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. (4) On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper."

5. Section 16 of the N.‑W.F.P. Civil Servants Act, 1973, hereinafter called N.‑W.F.P. Act XVIII of 1973, is as under:‑‑ "

16. Disciplinary action: ‑‑A civil servant shall be liable to prescribed disciplinary action and penalties in accordance with the prescribed procedure:" The prescribed disciplinary action and penalties are provided in the N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter called E&D Rules, 1973 of which the inquiry procedure has been reproduced hereinabove. This procedure of imposing penalty is in two portions. One, when the Authorised Officer decides to impose minor penalty and the other when the Authority imposes major penalty of which the main penalty is of severance of service by compulsory retirement, removal from service or dismissal from service and reduction to lower post or grade etc. It will be noticed that for imposing major penalty upon a civil servant the Authorised Officer shall forward the case to the Authority alongwith the charge and statement of allegations etc. and his own recommendations regarding the penalty to be imposed. In this procedure the Authority while passing orders will have to be satisfied on the recommendations of the Authorised Officer, which necessarily will be based on the charge and statement of allegations served on the accused and the explanation of the accused. The authority will also have to be satisfied in passing orders on the basis of not only the recommendations of the Authorised Officer but also on findings of the Inquiry Officer or Inquiry Committee regarding the major penalty to be imposed as the words signify in Rule 5(4) of E&D Rules, 1973. These words "findings and recommendations" are missing when the Authorised Officer imposes minor penalty. The N.‑W.F.P. Act XVIII of 1973, section 16 of the Act, the Efficiency and Discipline Rules, 1973 do not provide necessarily a finding of inquiry before a minor penalty is imposed upon the accused by the Authorised Officer and when the law and the rules do not provide anything for the same then the same cannot be read into the aforementioned section of the Act and the Rules framed thereunder, mentioned hereinabove. It will be noticed that the words "give him a reasonable opportunity of showing cause against the action" as provided in Rule 5 of E&D Rules, 1973 and Rule 6(3) of the Punjab Police Rules, 1975 are the same in its composition, grammer and import. This draft is transposed from the Government of India Act, 1935 and also of 1919. The august Supreme Court of Pakistan discussed the object and meaning of such like words in connection with the inquiries of disciplinary matters in the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another reported in PLD 1981 Supreme Court 225 in the context of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968) and section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969). It was observed and held as under:‑‑ "I would now deal with the second question, namely, as to whether Standing Order No. 15(4) prescribes Jive giving of a second show cause notice after the enquiry is completed. The crucial words in this provision are: `is given an opportunity to explain the circumstances alleged against him'. Therefore, what is to be determined is whether these words spell out the concept of a second show‑cause notice which was a Constitutional safeguard and was, for the 'first time, incorporated in section 240(3) of the Government of India Act, 1935, in the following words: `Until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' This safeguard related to the second show‑cause notice only in regard to the punishment proposed to be awarded and continued in the subsequent Constitutional enactments till it was omitted from the 1973 Constitution. In the High Commissioner for India and another v. I.M. Lall (PLD 1948 PC 150), the expression `a reasonable opportunity of showing cause against the action proposed to be taken in regard to him', occurring in section 240(3) of the Government of India Act was construed to mean that no action was proposed within the meaning of this subsection until a definite conclusion was reached on the charges and the actual punishment to follow was provisionally determined. I may add here that this safeguard was not at all concerned with the enquiry into the charge against the delinquent Government servant prescribed under rule 55 of the Civil Services (Classification and Control) Rules, framed under section 96(B) of the Government of India Act, 1919, which was left unaffected as an administrative rule; and this preceded the operation of the Constitutional safeguard. Therefore, the Constitutional safeguard and the enquiry proceedings were distinct in their application and the former was not a part of it. This is further apparent from the re‑enacted clause (2) of Article 311 of the Indian Constitution: `(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. In this clause the requirement of natural justice and the Constitutional safeguard have been incorporated distinctly. This being so, this requirement was a creation of the Constitutional provision and it was not considered as a part of the rules of natural justice. In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him All that this conveys is: firstly, an opportunity ‑to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegations on which such charges are based and secondly, an opportunity to defend himself by cross‑examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed a to the extent to which such rules are incorporated in the statutes. Thus, the second requirement of the provision does not travel beyond what is secondly stated." Reasonable opportunity of showing cause will not necessarily mean showing cause through the proceedings and findings of an inquiry. Nothing is to be read into the rule, which by itself does not provide for its operation. The principle of natural justice is very well incorporated in Rule 5 of the E&D Rules, 1973.

7. In this case an inquiry or probe was made on the received complaint and after the receipt of the opinion or conclusion, the show‑cause notice was issued to accused officer, petitioner herein. There is no embargo or restriction in the Act or the Rules on preliminary inquiry, probe or investigation before a show‑cause notice is issued, The whole procedure in the disciplinary matters is not a trial, but to arrive on at reasonable conclusion of a prudent person in regard to the guilt of the `accused person on the allegations levelled against him.

8. The petition, therefore, fails and is dismissed with no orders as to costs. AA./1481/P Petition dismissed: