P L D 1967 Supreme Court 62 (PLP)

CORNELIUS, C. J.‑The appellant in this appeal by special Cave is one Abdul Latif Niazi, who calls in question tile refusal by he High Court to issue upon his petition, a writ to quash the order of his dismissal from the post of junior clerk in the office of the Commissioner, Multan Division. The background facts of the dismissal are as follows: There had been an over‑payment to one Hafizullah, a teacher in a school in the Notified Area of Jahanian, amounting to somewhat over 3,

000. The Administrator of the Committee had recommended that this be written off, and the papers had been forwarded to the Commissioner for necessary order. On the 8th October 1960, ill,. case was referred back by the Commissioner to the Deputy Commissioner, Multan. In January 1961, while the file of the case was still in the office of the Commissioner an intrigue was started within the office, which resulted in the issue of a fabricated order by the Commissioner sanctioning the write‑off. The typist of the letter was traced, namely, Abdullah, and it was also found that the dealing Assistant was one Muhammad Ismail who also was made the subject of a charge arising out of the same matter. Muhammad Ismail had put up the letter communicating the purported order of the Commissioner to the Superintendent of the Commissioner's office, Mr. S. M. Sajid, who dealt with it in routine, i.e., without detailed check, and signed it on behalf of the Commissioner. The fraud was, however, discovered when the letter was seen by Ch. Karam Elahi, P.C.S., Assistant to the Commissioner and after enquiry, charges were drawn up against Muhammad Ismail as well as against Abdul Latif Niazi. The part taken by the latter in the matter was found in the enquiry to have been as follows. He was himself a pupil of Mr. Hafizullah and had been approached by the latter to obtain a favourable order in the case. Abdul Latif Niazi got hold of the file of the case from the Record Assistant Rao Jamshed Ali in January 1961, and kept it with himself until the following month, when he took it again to Rao Jamshed Ali and requested that it should be placed before the dealing Assistant, namely, the‑aforesaid Nluhammad Ismail. Rao Jamshed Ali and Abdul Latif Niazi went together to Muhammad Ismail and Abdul Latif Niaz requested Muhammad Ismail to help the teacher in the case. The help eventually giver. was by fabrication of an order sanctioning the write‑off of the sum in question. The proceedings in the departmental enquiry were taken in precise accordance with the requirements of the law on the subject. In the charge‑sheet against Abdul Latif Niazi, it was alleged specifically that he was interested in the case and approached Muhammad Ismail to write a favourable note to lie Hafizullah, further that although he had nothing to do with the Branch to which the file pertained, he had taken the file away and kept it with himself for about a month and lastly, that he also approached a clerk in the office of the Deputy Commissioner in the same connection. On these allegations, it was charged that he had been guilty of grave misconduct since he had "played the role of a safarshi and intermediary and thus tried to deceitfully cause undue gain to the Second Master by using dishonest and unfair means." The charge called upon him to state whether he wished to be heard in person. This was in accordance with a requirement in the relevant Rules. Abdul Latif Niazi in his reply admitted that he had been approached for help by former teacher Hafizullah. Thereupon, "under moral obligation" he had gone to Rao Jamshed Ali and explained the case to him, after which he and Rao Jamshed Ali had taken the file to Muhammad Ismail, who had promised that he would deal with the case "expeditiously." He denied having asked Muhammad Ismail to write "a favourable note," and said that after that, he never met Muhammad Ismail. He denied having taken the file away and kept it in his own custody for any length of time. He challenged the correctness of certain alleged dates on the basis that he had gone on three months leave on the 23rd January 1961, suggesting that during the period of his leave he was entirely out of touch with the office. The enquiry was conducted by the Additional Commissioner, who came to the conclusion that Abdul Latif Niazi had gone out of his proper course in taking the file from Rao Jamshed Ali and keeping it with himself for a month, and in going with Rao Jamshed Ali to Muhammad Ismail and asking Muhammad Ismail to favour the teacher and finally that he had made "undesirable enquiries" about the case from Saeed Ahmad, clerk of the Deputy Commissioner's office. The Additional Commissioner reported to the Commissioner that "Abdul Latif Niazi (was) also guilty of unduly helping Hafizullah teacher, by approaching various clerks." The Commissioner then called upon Abdul Latif Niazi to show cause why he should not be dismissed from Government service by reason of his misconduct, and to this Abdul Latif Niazi made a reply, in which he admitted having done certain things "under pressure of moral obligation," but that he was "quite in the dark" about the way in which the case was handled after he had approached Rao Jamshed Ali. He suggested that the finding of the Enquiry Officer merely was that he, Abdul Latif Niazi, bad asked Muhammad Ismail to help in the early disposal of the case, and further that he had been involved in the matter because of "a rift with Rao Jamshed Ali." He urged that merely to ask that a case should be disposed of early did not amount to safarish and that the punishment of dismissal was not warranted. The Commissioner made a considered order setting out the facts as found by the Enquiry Officer, and came to the conclusion that the charges stood fully proved against Abdul Latif Niazi. He added, however, a further finding with reference to Abdul Latif Niazi's allegation that being on leave at the time when the fabricated letter was put up, he was free of responsibility for it. On this point, the Commissioner held that "it is a fact that he had been coming to the office during those days, although he was on leave" No personal hearing was given to Abdul Latif Niazi before this order was passed. The latter had not asked for a personal hearing. It is conceivable that in a departmental case of this kind, where there is more than one official involved in the transaction the particular official who is brought under enquiry and who hopes as a result to be restored to his former position, may not wish to put down in writing matters calculated to implicate other officials and particularly those senior to himself. His further service in the department could be seriously affected if such a matter stood on the record against his own superiors, as coming from his mouth. For such, and other reasons, there can be occasions where an official in the situation of Abdul Latif Niazi might find it necessary to reserve the statement of certain waiters relevant to the appropriate punishment in the case, for oral presentation before the dismissing authority. In this case, however, nothing of that kind appears. There is no word suggest ing that the superior in the case, namely, Mr. Sajid, the Superintendent, was in any way involved in the intrigue which led to the issue of the fabricated order under his signature. It is clear from the record that he was deceived by the fabricated letter being presented in the regular form, so that he presumed it to be in order and signed it. The particular matter which seems to exonerate the Superintendent altogether is that when later the letter sanctioning the write‑off was produced, it was found that the signature of the dealing clerk had been removed by tearing off a piece of paper on which it was written. That sufficiently shows that Mr. Sajid was in all probability himself deceived in the matter. Therefore, on a proper examination of all the circumstances this was not a case in which a personal hearing could have been thought necessary. Abdul Latif Niazi's own statement at the enquiry contains a clear admission of his having acted at the request of Hafzullah to approach Rao Jamshed Ali and being instrumental in having requested Muhammad Ismail "to help the teacher speedily in the case because his case was genuine." It was found, however, that all his actions when put together amounted to grave misconduct in the nature of safarish and it stands to reason that it was not mere quick disposal of the case that Hafizullah required, but rather that he should be relieved of the burden of having to pay the considerable sum of Rs. 3,

000. Abdul Latif Niazi's statement that he had only asked for quick disposal cannot be, and was therefore rightly not, accepted, as being the whole truth. As to his reliance on the fact of his having been on leave, this was raised as a point of doubt regarding the truth of the evidence given against him by other members of the staff, viz., that he did approach them at the relevant time. The statement in the Commissioner's order that, as a matter of fact, Abdul Latif Niazi had been visiting the office during his leave, appears not to be based on any evidence led in the case. But, for the purpose of believing the evidence aforesaid, the Enquiry Officer had also to believe that these visits were actually paid. Such visits are natural and very common, where the leave does not involve change of residence, which is not alleged here. The finding of the Enquiry Officer, based on the evidence of witnesses whom he saw and heard, remains un‑affected by the question whether during his leave, Abdul Latif Niazi made a practice of visiting the office. The Commissioner's reliance on the latter practice was therefore not necessary for supporting the Enquiry Officer's finding. It is against this background of facts that the grounds on which leave was granted to the appellant, those being technical, require to be considered. The first ground is whether the relevant Rules, in order to be consistent with the Constitution do not require that before punishment is imposed, the official concerned should be given a personal hearing. The rule requires that the dismissing authority should after determining on the basis of the enquiry report that the suitable punishment is dismissal. call upon the official concerned "to show cause within a reasonable time, which will not be less than seven days nor more than 14 days, why the penalty proposed should not be imposed." The requirement of the Constitution is that there should be a reasonable opportunity given to show cause as above. In the rule, the emphasis is upon the time interval which might be thought reasonable and nothing is indicated as to the manner in which the cause shall be shown, i.e., whether in writing or orally. Since the procedure prescribes a charge and a reply at the outset, and that, at the enquiry, the official concerned should have the choice of being heard in person (which choice was duly exercised by Abdul Latif Niazi, and a personal hearing was actually given) it seems an excessive requirement that a personal hearing should also in every case be given in relation to the show cause notice. There are, as has already been said, occasions when a personal hearing may properly be asked for, but in this case none was asked for, and nothing appears in the entire facts, which were fully exposed during the enquiry, which could provide any reason why the dismissing authority should have taken this course on its own initiative. The proposition that such a personal hearing should be given in every case of this kind following a show‑cause notice cannot be sustained. Mr. M. A. Zullah referred us to the case of Chief Commissioner Karachi v. Dina Sohrab Katrak (P L D 1959 S C 45) where it was laid down that a hearing at the stage of appeal before a departmental authority was requisite. Here the question is not of appeal and moreover, when Abdul Latif Niazi presented an appeal against his order of dismissal before a Member of the Board of Revenue, he was in fact given a hearing. The second ground on which leave was granted was to consider whether the evidence in the enquiry, which was not recorded on oath, could be considered as evidence at all. Mr. Zullah informed us that the practice in departmental enquiries was not uniform on this point. Some enquiry officers considered that they were competent to administer oaths while others thought that no oath should be administered to witnesses. However, Mr. Zullah was constrained to admit that section 13 of the Oaths Act was clearly available to save the validity of statements without oath such as were made in the enquiry in the present case. Mr. Zullah himself referred to the case of Mohammed Sugal Esa v. The King (A I R 1946 P C 3) (a case from Somaliland where the law on the subject was similar to the Indian law) and section 13 of the Oaths Act coming under examination, the Judicial Committee held that it was "quite unqualified in its terms and there is nothing to suggest that it is to apply only when the omission to administer the oath occurs per in curiam " Mr. Zullah suggested that the punishment of dismissal was excessive in a case of this kind. The issue of an entirely fabricated letter from the office of the Commissioner writing off a consider able sum that was due to the Government is no light matter, and there seems no question but that it was Abdul Latif Niazi who initiated the movement, which led to this most undesirable result. It was for the administrative authorities to decide whether in the light of' the result, the behaviour of Abdul Latif Niazi as established by the evidence should be regarded as grave misconduct, for which dismissal was the only proper punishment. It is not possible to regard that decision as being wholly without justification. We accordingly dismiss this appeal, but make no order as to costs. K. B. A Appeal dismissed.