1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑We are concerned in this judgment, with the disposal of two appeals under section 4 of the Service tribunals Act, 1973, giving rise to common questions of law and facts.

2. Ghulam Farid appellant in Appeal No. 316(L)/1988 was appointed as Misalchi on 15‑5‑1985 by respondent No. 3 in the State Guest House at Lahore, of which he is Comptroller under the Ministry of Foreign Affairs. On 5‑6‑1988, he was served with the following notice: STATE GUEST HOUSE LAHORE 5th June, 1988 To, Mr. Ghulam Farid Misalchi, State Guest House, Lahore It has been reported by Mr. Hassan Muhammad, Head Cook and residents of Illaqa that your wife took active part in the acts of Goondaism played by family of Mr. Younus and that your wife was instrumental in taking the daughter of Mr. Hassan Muhammad, Head Cook forcibly to her House and blacken her face. (2) Your wife seriously misbehaved with the wife of Mr. Hassan Muhammad, Head Cook, his daughter and daughter‑in‑law and alongwith the family of Younus bearer took law in her own hands. (3) The statement given by you is irrelevant in regard to the incident and you have side tracked the main issue. Your wife did manhandle the wife of the Hassan Muhammad, Head Cook and her daughter and daughter‑in‑law. (4) From the statement on record by various other persons it has been proved and established beyond any shadow of doubt that your wife actively participated in the whole drama played according to plan by the family of Younus bearer and the brother of Younus Mr. Jaida. (5) You should explain your conduct in regard to the behaviour of your wife and explain why serious notice should not be taken of the incident and your services terminated from the State Guest House, (Sd.) Nazir Ahmad COMPTROLLER"

3. On the following day, 6‑6‑1988 that is to say, the following order was passed by the Comptroller (respondent No. 3) "MINISTRY OF FOREIGN AFFAIRS STATE GUEST HOUSE LAHORE No. SGH(4)/88/1121 Dated 6th June, 1988. To, Mr. Ghulam Farid Misalchi, State Guest House, Lahore. Please refer to your explanation dated Nil. Your statement of explanation is far from satisfactory. Your wife is the major culprit in this scene of Goondaism and she cannot be allowed to stay in the State Guest House. All what has happened is simply shameful. You were appointed as Misalchi and I took personal interest to train and trim you as a fine Cook at my expense simply to make you Assistant Cook in the State Guest House. You did not make use of this opportunity and you created a situation for yourself. I am sorry to discharge you from service with immediate effect for misconduct of your wife and her serious involvement in the acts of barbarism by Mr. Muhammad Younus bearer and his entire family against the family of Head Cook. (Sd.) Nazir Ahmad COMPTROLLER"

4. Muhammad Younas appellant of Appeal No. 317(L)/1988 was appointed by respondent No. 3 as Khalasi/Peon on 1‑4‑1979 and then promoted as Bearer in NPS‑5 on 23‑7‑1981, with further placement in NPS‑6 on 1‑8‑1986.

5. He too was served with a notice on 5‑6‑1988, which was the outcome of the same incident which resulted in the issuance of notice to Ghulam Farid appellant. It was based on the complaint of Hassan Muhammad, Head Cook made on 4‑6‑1988 to respondent No.

3. The allegation was "that after the complainant had left for the office, his wife, daughter, daughter‑in‑law and grand‑daughter were manhandled and assaulted" by the family of the appellant including his brother Jaida who manhandled the ladies so seriously that they suffered wounds on their body." It was further alleged that he (Jaida) behaved like a Goonda alongwith other ladies of the. appellant's house and the wife of Ghulam Farid appellant.

6. Here again, on 6‑6‑1988, an order was passed against the appellant dismissing him from service with immediate effect. It said that "you will vacate the premises of the State Guest House within 24 hours of the orders of dismissal and your family and other families will shift immediately failing which the police authorities will be asked to arrange the needful."

7. The departmental appeals addressed on 7‑6‑1988 to Chief of Protocol Ministry of Foreign Affairs, Government J Pakistan, were rejected on 10‑7‑1988 and the appellants came to the Tribunal with the present appeals where the relief sought is that orders dated 6‑6‑1988 in both the cases may be set aside as illegal followed by a direction for their reinstatement with back benefits.

8. We feel that the statement of facts hardly leaves any room for any analysis of the matter. A reference may be made to Rule 5(1)(ii) of the Government Servants (Efficiency and Discipline) Rules, 1973, tinder which the disciplinary proceedings purport to have been taken. It provides that the Authorised officer shall decide whether m the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee and that if he so decides, the procedure indicated in Rule 6 shall apply. Rule 6 lays down that where an Inquiry Officer or Inquiry Committee is appointed, the Authorised Officer shall (a) frame a charge and communicate it to the accused together with statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration and (b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him to put in a written defence and state at the same time whether he desires to be heard in person.

9. The procedure adopted in this case can hardly sustain any comment and we are of the view that we may not go into details. It will be sufficient to say that an inquiry should have been held into this matter before the passage of the impugned order in the interests of justice. The allegations against the appellants were such in nature, if at all it be assumed that they did constitute misconduct, as would have required an inquiry where the appellants would have been in a position to lead evidence in support of their explanations. This could be possible only if a charge had been framed by the Authorised Officer and the procedure laid down under Rule 6 of the Rules would have been adopted. There was no justification for a summary procedure under Rule 5(1)(iii) of the Rules, which appears to have been adopted in this case.

10. Further, we have made the aforementioned observations under the assumption that the procedure laid down in Rule 5(1)(iii) of the Rules has been adopted in this case. But in actual fact, even this has not been the case, for as we see, there was no Authorised Officer and respondent No. 3 who passed the impugned orders as competent authority acted as an Authorised Officer. We feel like saying that the procedure adopted in this case seems to have left everything to be desired. What is claimed to have been done by the respondents after the passage of the impugned orders by way of inquiry or investigation, had nothing whatsoever to do with the Rules. Under the circumstances, we do not find it possible to uphold the impugned orders passed in utter disregard of the rules, in the background of a situation where it cannot be said that the appellants were given an opportunity to defend themselves against the action proposed to be taken against them. As a matter of fact, no action was proposed in the notice of 5‑6‑1988 and they were evidently not in accordance with the requirements of Rules.

11. In the case of Ghulam Farid appellant it may be pointed out that the impugned order was of "discharged" from service. No such penalty is, however, provided by Rule 4 of the Rules.

12. For these reasons, the impugned orders of 6‑6‑1988 are set aside in acceptance of the appeals with consequential benefits. The respondents shall, however, be within liberty to initiate the disciplinary proceedings afresh, in case they be of the opinion that the allegations against the appellants constituted misconduct within the meaning of Rules, from the stage whence the procedural mistake can be rectified. In case fresh proceedings are started, the question of whether the appellants are entitled to any back benefits will depend upon the result of those disciplinary proceedings. No order as to costs. A.A./740/Sr.F Case remanded.