1991 PLP 194 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted under Article 212(3) of the Constitution to examine whether in the case in hand the procedure adopted in dismissing the appellant from service, amounted to condemning him unheard.

2. The appellant was posted as Assistant Central Intelligence Officer in Grade‑11 in June, 1974. He was posted at Sahiwal and from there transferred to Dera Ghazi Khan. There were numerous complaints against him, upon which a show‑cause notice was issued to him calling upon him to show cause within 14 days as to why he should not be removed from Government service. The appellant submitted a reply to the show‑cause notice in which he requested as hereunder:‑‑ "I also request your honour to allow me an opportunity of personal hearing so that I may bring to your kind notice the things which I am hesitating to bring in black and white." He appeared before the Authorised Officer for personal hearing and the Authorised Officer had very elaborately recorded what transpired at the personal hearing and the note so prepared is signed. by the appellant himself. The portion which deserves reproduction and attention from the record of the personal hearing is as hereunder:‑‑ "As regards the charge regarding dirty liaison with girls, I have already described it as being of general nature. Thereupon, certain statements received from HQ. Multan Sub‑Bureau were read out to him. His replies are as under:‑‑

" 3.The dismissal order was passed against him on 18‑7‑1978. His appeal to the Department failed and also before the Service Tribunal.

4. Mr. Zafar Yasin, Advocate, the learned counsel for the appellant contended that the nature of the allegations necessitated an enquiry on facts through the Enquiry Officer rather than the serving of a mere show‑cause notice containing the allegations. Further, according to the learned counsel after the service of the show‑cause notice containing the allegations on which the appellant was required to show cause, the department continued holding a contemporaneous enquiry behind the back of the appellant and the material so collected was presented to him at the personal hearing. Such a procedure was violative of the law on the subject because if the department had chosen to adopt the shorter procedure of show‑cause notice, then it should not have resorted to a contemporaneous enquiry in order to verify the grounds, the defence taken up, the vagueness of the order and if at all resorted to such method, then it was necessary that the appellant should have been associated with it and the statement and material so collected should have been tested by cross‑examination and association of the appellant.

5. On going through the record we find that the show‑cause notice was served on 7th of March, 1978, the reply was furnished on 3rd of April, 1978, personal hearing was afforded on 13th July, 1978 and the dismissal Order was passed on 18th July, 1978. After service of the show‑cause notice and before the personal hearing, the Department collected the statements of Abdul Wahid Sindu and that of Professor Sarwar Bakhsh Khan Leghari, Ghulam Jilani, Muhammad Sadiq, Muhammad Aslam and Saadat Ahmad and utilized them not in the show? cause notice but at the personal hearing. This was the most unusual procedure. that was adopted. In other words the department allowed to observe the benefit of the longer procedure of enquiry but denied all its benefit to the appellant facing the enquiry. Such a procedure is clearly violative of the law and the rules and of the requirements of natural justice and makes a mockery of the action ultimately taken.

6. In the circumstances this appeal is allowed, the order of the Tribunal is set aside and that of the dismissal of the appellant from service also. The department shall determine afresh the charges on which to proceed and whether the shorter procedure is to be applied for proceeding against the appellant or the longer procedure and take steps for concluding the enquiry strictly in accordance with the law. The period that the appellant has remained out of service on account of such illegal orders shall be determined by the competent authority only after the enquiry has concluded but is the meantime appropriate orders be passed for treating the appellant either on duty or on suspension or on leave as the case may be, as an interim measure, pending finalization of the enquiry. No order is made as to costs for the present. A.A./M‑1334/S ????????????????????????????????????????????????????????????????????????????????? Order accordingly.