1984 PLP (C (PLC(CS))

Malik Azarn Rasool for Respondents. Ghulam Farid Bhatti, Ex‑Sub‑Inspector, Co‑operative Department has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha and the Registrar, Cooperative Societies, Punjab, Lahore as respondents.

2. By virtue of this appeal he has prayed that the orders, dated 11th April, 1979 and 26th February, 1980 passed by the Respondent No. 1 be declared as illegal without lawful authority, mala fide, in excess of jurisdiction and be quashed, directing the appellant to be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant, Ghulam Farid Bhatti, joined the Co‑operative Department as Sub‑Inspector on 21st June, 1953 and was confirmed as such on 30th October, 1960. While he was posted at Lalian, as Sub‑Inspector he was transferred to Chak No. 52/JB vide order No. 8575‑778/DRS/E, dated 30th April, 1978. Instead of taking over at the new station of posting, the appellant proceeded on leave without sanction. The appellant was charge‑sheeted and proceeded under the provision of Punjab Civil Servants (E & D) Rules, 1975. He was found guilty of Misconduct on account of absence from duty. The appellant was punished by reducing him to a stage by one step lower than his present pay and the period of his absence w.e.f. 7th May, 1978 to the date he resumed the duty at his new assignment was treated as leave without pay. On finalization of the above case the appellant was posted as Auditor at Jhang vide, Deputy Registrar, Co operative Societis, Sargodha Division No. 3525‑27‑DRSiE, dated 11th April, 1979. On this the appellant reported for duty in the office of the Assistant Registrar, Co‑operative Societies, Jhang on 6th December, 1979 and remained in the office for some time on that day and thereafter he absconded from duty. The appellant was charge‑sheeted again by Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha and to which he submitted reply accordingly. Deputy Registrar, Co operative Societies, Sargodha served upon him the show‑cause notice under Rule 6(3) and Rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The appellant was also afforded an opportunity of personal hearing which he did not avail. He was removed from service by Respondent No. 1, vide order No. 1861‑22‑DRS/E, dated 26th February, 1980. The appellant filed a representation before the Registrar, Co‑operative Societies, Punjab, Lahore, Respondent No. 2, on 20th March, 1980 which according to the appellant is still pending. Failing to find any response from Respondent No. 2, the appellant again made a full addressed representation on 26th May. 1981 to Respondent No. 2 by name under Registered Cover A. D. and which according to the appellant has not yet been disposed off. Hence this appeal.

4. The learned counsel for the appellant has argued this case and taken the plea that the appellant was victimised. He has been punished for his efficiency and ability which he showed in detecting fraud cases against some officials of the Co‑operative Department. This resulted in his undue three transfers in the year 1977 which were made within a period of one month only and this was in-contravention of the policy laid down by the Government. He was again unnecessarily transferred in the year 1978. He made representations against this transfer and no action was taken to redress his grievance. The appellant was unlawfully punished vide order, dated 11th April, 1979 in the first instance, where he was reduced to a stage by one step lower than his present pay. The appellant did not remained absent but remained applying for leave which was not granted. As the appellant was not expecting sympathetic attitude by the Deputy Registrar, Co‑operative Societies, Sargodha Division, be was forced to remain on leave as he had developed enmity with this officer because the appellant had reported fraud cases in his area. Referring to the impugned ‑ order, dated 26th February, 1980 of the Respondent No. 1, by which the appellant was removed from service, the learned counsel for the appellant submitted that this order was unlawful and void ab initio. The appellant was duly charge‑sheeted in the 2nd case. A charge‑sheet/statement of allegations was served upon the appellant. A reply to the same was submitted and was received by the Respondent No.

1. Respondent No. 1, without holding any enquiry to find the truth of the charges, be dispensed with the enquiry and served the appellant with a show‑cause notice under Rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 ; which he could not do so in view of the fact that he had already charge‑sheeted the appellant and it was not within his discretion to revert to the procedure of serving show‑cause notice under Rule 6(3) of the Punjab Civil Servants (E & D) Rules, 1975. As no enquiry was conducted the appellant was not provided opportunities to produce his defence and truth of the allegations was not ascertained. Thus the impugned order dated 26th February, 1980 of the Respondent No. 1 based on the unlawful proceedings under the Efficiency and Discipline Rules mentioned above, is void ab initio, unlawful and' needed to be quashed. Controverting these arguments the learned Special Government Pleader, Malik Azam Rasool, submitted that serving the show‑cause notice under Rule 6(3) was perfect in order and lawful and no exception can be taken to this by the learned counsel for the appellant. The facts and the history of the case show that the appellant remained wilful absent and he was avoiding to comply with his transfer order and thus the proceedings under the Punjab Civil Servants (E & D) Rules, 1975 carried out against him were properly conducted under the provisions of these Rules and he has been, thus, lawful and correctly removed from service.

5. I have given my anxious thought to the arguments of the parties and have also gone through the record and' personal files of the appellant. I have also perused the impugned order No. 1861‑62;DRS/E, dated 26th February, 1980 by which the appellant was removed from service. It has been clearly mentioned in the order that the appellant was duly charge‑sheeted and also a reply was received for the same. Para. I of this order is reproduced below with advantage :‑

"Mr. Ghulam Fareed, Ex‑Sub‑Inspector, Co‑operative Societies, Jhang District was charge‑sheeted under the provision of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 on account of misconduct. He submitted a reply to the above charge‑sheet on 12th January, 1980. The reply was quite unsatisfactory. Sub -Inspector, was therefore, given show‑cause notice under the provision of rules 6(3) and 8 of the Efficiency and Discipline Rules, 1975, under registered A. D. cover, which was served upon him on 24th January, 1980. He was also given an opportunity of personal hearing on 24th February, 1980 through Establishment Assistant of this office and the letter was got noted by the accused on 17th February, 1980 but he did not come present on 24th February, 1980." It is thus clear that the appellant was charge‑sheeted and enquiry was to be conducted as per Rule 7 of the Punjab Civil Servants (E & D) Rules, 1975. Dispensing of the enquiry and resorting to a show‑cause notice under Rule 6(3) of these Rules is not in order, as the charge‑sheet and statement of allegations served upon the appellant by the order of the,; Respondent No. 1, dated 29th December, 1979 (Annexure 'C'), definitely needed an enquiry by Enquiry Officer to find out the truth of the matter We have already held so in case of Haji Malik Niaz Ahmed v. Commis sioner, Multan (Appeal No. 345/475 of 1979) decided on 11th March, 1981 that once an enquiry is considered necessary it would be in the interest of justice to hold the same so as to look into the matter objectively and the dispensation of the same, without any reason, would be quite un justified as well as against the law of natural justice. Our said judgment was based on earlier decisions reported as 1976 P L C (C. S. T.) 35, Post Muhammad v. Deputy Commissioner (1980 P L. C (C. S.) 6111) and Allah Bux v. Commissioner Hyderabad (1982 P L C (C. S.) 272). In this particular case, the Departmental Authority had served the charge‑sheet and statement of allegations upon the appellant which was a prerequiste for a regular enquiry and as such it was incumbent upon the respondents to give speaking reasons for dispensing with the same and for resorting to shorter procedure laid down in Rule 6(3) of the Punjab Civil Servants (E & D) Rules, 1975. The record shows that the Deputy Registrar, Co‑operative Societies, Sargodha has not given any reason as to why he changed his mind and dispensed with the regular enquiry. Thus, I am of the considered view that the discretion exercised by him is arbitrary and is illegal in view of the law laid down as above; which has deprived the appellant of his right to defend himself properly, which right accrued to him by service of charge sheet etc. Thus, I hold that under the circumstances, the impugned order No. 1861‑62/DRS/E, dated 26th February, 1980 modifying his earlier impugned order No. 3525‑27‑DRS/E, dated 11th April, 1979 is unlawful and have not been validly passed.

6. Thus, I set aside both the impugned orders and remand the case to the competent authority for proceeding against the appellant as per observations made by me in the above para. The appellant is directed to be re‑instated into service to bestow upon him the status of a civil servant for proceeding against him by the authority afresh. The period from the date of his removal from service to that of re‑instatement will be treated as extraordinary leave, without pay. There will be no order as to costs. A. E. Order accordingly.