1989SCMR561 (PLP)

The Enquiry Officer submitted his report and findings which may be summarized below: Charge‑1: "The charge has been proved to the extent that the accused officer had manifested lack of care and caution in processing the documents in all the 163 cases." Charge‑2: "The charge was not proved as according to the Enquiry Officer it is not impossible and improbable to issue purchase receipts and invoices on one and the same date for the simple reason that the action of only one party (the supplier) is involved m such cases. It is therefore possible that after issue of purchase receipts, the supplier may have simultaneously issued invoices on the shippers." Charge3: This charge according to the Enquiry Officer "was untenable and as such has not been proved." Charge‑4: This charge "has no basis and hence not proved". Charge‑5 . This charge too did not merit any consideration at the stage of the proceedings. Charge‑6: This charge had no basis and hence was not proved. Charge‑7: The allegation under this charge also stood unproved. Charge‑8: No finding was given by the Enquiry Officer on this charge. Finally the Enquiry Officer observed as under:‑‑ "The net result of above discussion is that only charge No.l has been proved against the accused officer, in that, he had failed to scrutinize the documents diligently and with care and caution. His carelessness in the scrutiny of cases is further evident from the fact that most of the applications for issue of import permits were undated and the accused officer had also failed to put the date under his initials on these applications. While concluding this report it may be pointed out that as a result of close scrutiny of relevant records during the inquiry proceedings at Karachi the following additional facts/discrepancies have come to light:‑ (1) During the relevant period when the disputed import permits were issued the accused officer had ordered for opening a new Diary Register in which the applications for issue of import permits had been entered. A common Diary Register was already available in Hyderabad Office and as such the motive for opening a new Register has to be ascertained. (2) In 61 cases shown in the list marked Exh. C/1, the accused officer has admitted to have tampered the date 7‑2‑1979 appearing under the note and signature of Abdul Oadir Javed, U.D.C. to read the same as 8‑2 1979. (3) The accused officer had evaded to indicate the date on his notes recorded on 61 case files pertaining to issue of import permits under inquiry. As these discrepancies were not included in the charge‑sheet against the accused officer. I have avoided adjudication on these fads which are however, brought to your notice for taking appropriate action." As a result, appellant was dismissed from service by the order of the President of Pakistan notified in the Gazette of Pakistan dated 10‑‑1980. The appellant filed a review application against this order, and after having awaited the reply for the statutory period of 90 days, he filed an appeal before the Federal Service Tribunal. He was however subsequently informed under letter dated 8‑2 1981 that the President of Pakistan had rejected this review petition. Appeal in the first instance was heard by two learned Members of the Tribunal who were, in result, equally divided in their opinion. One of the members, namely, Mr. A.O. Raziur Rahman took the view that the appeal should be allowed, and he accordingly directed appellant's re‑instatement in service. The other member, Brig. Abdur Rashid, on the other hand, took the view that the charges Nos.l and 2 stand established beyond any reasonable doubt and thereby charge No.8 also stands proved, and on this view of the case he was of the opinion that appeal deserved dismissal. In view of the difference of opinion between the two learned Members, the appeal was finally heard by the Chairman of the Service Tribunal under the provisions of Section 3‑A(b) of the Service Tribunals Act, 1973. Learned Chairman, however, took a totally different view, and held that "the appellant has been serious) prejudiced due to non‑supply of inquiry report to him and also due to absence o notice requiring him to explain why the penalty of dismissal should not be imposed upon him". He therefore allowed the appeal and set aside the order of appellant's dismissal from service and remanded the case for fresh disposal from the stage where the mischief was done i.e. "appellant should be supplied with a copy of the inquiry report and the copy of the views of the Authorized Officer and should also be asked to explain as to why major penalty of dismissal may not be imposed upon him and then the final decision should be made." Leave to appeal was granted by this Court by the order dated 2‑5‑1985 in order to examine the plea, inter olio, that since on merits of the case, learned Chairman had agreed with the views expressed by the learned Member, Mr. A. Q. Raziur Rahman, he should have granted the benefit of doubt to the appellant as the proceedings were of criminal nature and such benefit legitimately accrued to him. Another aspect of the case which deserved consideration was that instead A of resolving the difference of opinion between the two learned Members, learned Chairman chose to resort to a totally different course of action, namely directing fresh disposal of the whole case, which has exposed the petitioner to the serious risk of being found guilty on the charges of which he has been exonerated: At the hearing of the appeal, Mr. Fakhruddin G. Ebrahim learned counsel for the appellant highlighted the points noticed in the leave granting order and further submitted that there being no evidence in support of any of the charges leveled against the appellant, learned Chairman of the Service Tribunal should have applied his mind to the evidence on record and decided the case on merits, rather than remanded the case for fresh decision which has exposed the B appellant to the risk mentioned above. In this behalf, learned counsel stated that appellant has no complaint as to the non‑supply of the report of the Inquiry Officer, which has already been supplied to him during the course of the proceedings, and he has nothing to offer by way of any further explanation, and therefore the reasons for which the case was remanded for fresh decision are no longer valid. We are impressed with, the last plea urged by the learned counsel. In view of the fact that appellant has no grievance which found favour with the learned Chairman of the Service Tribunal in remanding the case for fresh trial, and the learned counsel for the appellant submits that in the circumstances, the C case should be decided on merits by the learned Chairman of the Service Tribunal, the only course left open on the facts and circumstances is to remand the case to the learned Chairman of the Tribunal for fresh decision in terms of the provisions of Section 3‑A of the Service Tribunals Act, 1973. For these reasons, we set aside the impugned judgment of the Service Tribunal, and remand the case for a fresh decision to the Chairman as directed above. Since this case has been pending for a long time we "expect the learned Chairman will decide it expeditiously. The appeal is thus allowed but the parties are left to bear their own costs. M.Y.H./A‑378/S Appeal allowed.