1987 PLP 602 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This is an appeal by leave from the judgment of Federal Service Tribunal, dated 29th June, 1982, whereby the appeal filed by the appellant in respect of the order of his removal from service was dismissed.

2. The appellant was appointed as Upper Division Clerk in the Collectorate of Customs, Custom House, Karachi, on 18th August, 1969. Subsequently in reply to his application for promotion he was informed on 5th September, 1972, that his case for promotion as Preventive Officer will be considered at the time of filling of vacancies. Later on with the permission of the departmental authorities he appeared at and passed the departmental promotion examination also. On 29th September. 1976, he was relieved of his duties as Upper Division Clerk under the orders of Assistant Collector Customs, for the reason that he had been promoted as Preventive Officer. He actually joined his duties as Preventive Officer and an identity card in such capacity was also issued in his name on 4th October, 1976, by the Collector of Customs, Karachi. However, after the lapse of about three weeks i.e. on 27th October, 1976, the Inspector incharge of his Group prevented him from performing his duties as Preventive Officer although he was not given any written order in this behalf in spite of his request. According to the appellant, he reported the matter to the Collector of Customs as well as Assistant Collector concerned, under whom he was previously working as Upper Division Clerk but he seems to have been informed that he was not duly appointed as Preventive Officer and, therefore, he could not be allowed to work in that capacity. Since nothing had been given to him in writing the appellant feeling aggrieved that he had been illegally removed from the post of Preventive Officer, filed a civil suit in the Court of Civil Judge, Karachi, for declaration and injunction. This suit was dismissed on 31st July, 1977, on the ground of bar of jurisdiction. The appellant then challenged the decision in appeal before the District Judge, Karachi, which is pending. Meanwhile on 11th December, 1976. he applied to the Collector of Customs (Preventive;) several times to obtain copy of the order reverting him from the post of Preventive Officer, so that he may seek relief before the departmental authorities and the Services Tribunal by way of appeal. No reply was given to the appellant in response to these applications, on the other hand, he was placed under suspension vide order, dated 23rd July, 1978 on the ground that there exists a prima facie case of misconduct against him. On 2nd April, 1979, the appellant was served an order requiring him to show cause why disciplinary action should not 'be taken against him on three charges. Two of these charges related to a case of removal of the official file pertaining to fraudulent clearance of an imported car but these charges were dropped, and the third charge was as under:‑ "He consequently absented himself from duty since the detection of the case to avoid involvement." The appellant submitted a reply on 17th April, 1979, denying, all the allegations. As to the alleged absence from duty, the appellant explained that in the civil suit filed by him he had obtained as order for status quo and in pursuance thereof he had applied to the Collector of Customs for permission to resume duty as Preventive Officer but he was not allowed to do so. However, his explanation was not found satisfactory by the Collector of Customs who on 7th February, 1980, found him guilty of the charge and, therefore, in exercise of powers vesting in him under Rule 4(b) of the Government Servants (Efficiency and Disciplinary) Rules, 1973, he ordered the removal of the appellant from service with immediate effect. The appellant preferred an appeal against this order before the Central Board of Revenue to which no reply was received by him and consequently he filed an appeal before the Tribunal on 12th October. 1980, which was dismissed as stated earlier.

3. The undeniable position, in this case is that the disciplinary proceedings against the appellant were initiated with the show‑cause notice, dated 2nd April, 1979, in which, besides mentioning the three charges levelled against the appellant, he was called upon not only to show‑cause as to proposed action against him under Rule 4(b) of the Government Servants (Efficiency and Disciplinary) Rules, 1973, but he was also required under Rule 6 of the aforesaid rules to submit his written defence and also state whether he wished to be heard in person. By his reply to the show‑cause notice, dated 17th April, 1979, the appellant besides denying the allegations embodied in the charges, also prayed for being 'afforded all the reasonable opportunities to meet the charges by defending himself by cross‑examining the prosecution witnesses, if any, and to allow the undersigned to adduce his defence oral as well as documentary. The undersigned desires to be heard in person'. After the receipt of this reply, however, no formal inquiry was held and the impugned order of appellant's removal from service was passed by the Collector of Customs on 7th February, 1980. 4 The learned Service Tribunal, after referring to the aforesaid circumstances, has taken the view that no opportunity of personal hearing was given to the appellant because as to the first two charges which were the subject‑matter of proceedings in a criminal Court, the action for the time being thereon was deferred and the charge relating to absence from duty being undeniable on facts, a detailed inquiry into that charge was not considered necessary by the Collector. It was then observed by the Tribunal:‑ "It would have been proper, in the circumstances for the Collector:, to record his decision in this behalf in so many words. That he did not do so in the instant case, however, in no way prejudiced the appellant in his defence."

5. Leave was granted in this case in order to examine the contention that the procedure adopted by the departmental authorities was palpably in violation of Rule 5 of the Efficiency and Disciplinary Rules, 1973, inasmuch as, the show‑cause notice issued by the Authorised Officer, indicated the procedure requiring the holding of formal inquiry as envisaged by Rules 5(1)(iii) and 6 of the aforesaid rules, whereas final order was passed by the Authority on the basis of the procedure provided for under Rule 5(1)(ii). The other question noticed at the time of granting leave was that the order of appellant's removal from service was vitiated on account of refusal of the Authorised Officer or the Authority, to furnish to the appellant an opportunity of personal hearing. The learned counsel for the appellant has reurged the aforesaid contention in support of this appeal. On the other hand the learned counsel for the respondents sought to support the impugned judgment of the Service Tribunal on the argument that the matter whether a formal inquiry be held and not on the charges levelled against a civil servant lies within the discretion of the Authorised Officer, under` Rule 5(1)(ii). He also made submission on the merits of the case urging that there was no justification for the appellant to claim that he has been promoted as Preventive Officer from the rank of Upper Division Clerk. As to the last mentioned submission learned counsel for the appellant referred us to the order of Assistant Collector of Customs, Appraisement East Wharf, dated 29th September, 1976, (see page 30 of the printed record) which purports to be relieving order in respect of the appellant in which it is mentioned that he had been promoted as Preventive Officer and was being relieved from his duty as Upper Division Clerk with effect from the said date. However, in the view that we have taken it is not necessary for us to go into the factual aspect of the case, thus raised before us.

6. Now Rule 5(1)(ii) of the Efficiency and Discipline Rules, 1973 (hereinafter referred to as the Rules) reads as follows:‑ "(i) .. (ii) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply. (iii) .. (iv) .. Rule 6 of the said rules provides for the detailed procedure to be observed by the Inquiry Officer or Inquiry Committee where the Authorised Officer decides that a formal inquiry shall be conducted. It was an admitted position before the Service Tribunal that the show‑cause notice was issued in which the appellant was asked to put in his defence under Rule 6 of the said rules and that the final order was passed on the basis of the show‑cause notice (charge‑sheet) the explanation submitted by the Authorised Officer, namely, Deputy Collector of Customs, (Preventive) Headquarters. The learned Tribunal observed that:‑ "Since absence from duty was an undeniable fact, obvious from the departmental record, a detailed enquiry relating to that charge was not considered necessary by the Collector. It would have been proper, in the circumstances, for the Collector to record his decision in this behalf in so many words. That he did not do so in the instant case, however, in no way prejudiced the appellant in his defence."

7. The learned Tribunal proceeded to reach the conclusion that formal inquiry was not necessary on the basis that the appellant had never been appointed or posted as Preventive Officer at any time. This assumption is prima facie contrary to the record as pointed above, because if he had not been posted as Preventive Officer there would have been no necessity to issue the relieving order by the Assistant Collector, dated 29th September, 1976. In the circumstances on the aforesaid assumption all the efforts made by the appellant to agitate the matter in Courts of law against his alleged reversion, were considered by the learned Tribunal to be baseless and amounted to absence from duty. The learned Tribunal, therefore, concluded that there was no plausible explanation for the appellant to the charge relating to absence from duty and as such no formal inquiry was necessary. However, the learned Tribunal, was conscious of the fact that the procedure adopted by the Authority was irregular which is reflected from the following portion of the impugned judgment:‑ "In reaching this conclusion we are no doubt conscious of the fact that in spite of the fact that the original show‑cause notice gave the appellant the option ‑of asking for a personal hearing, which was requested by the appellant, this was not actually granted. This, no doubt constituted a departure from the prescribed procedure. But it has not materially affected the vires of the proceedings, because the appellant has neither been prevented from offering his defence nor has his point of view been ignored. Looking at the case in its totality, we find that, in spite of the fact that there have been procedural lapses during the departmental proceedings against the appellant, the simple fact remains that his removal from service has been ordered on account of his continuous absence from duty."

8. From the above it is obvious that the authorised officer had initially taken the decision that a formal inquiry should be conducted against the appellant, but subsequently after the appellant submitted his explanation the matter was placed before the authority by adopting the procedure provided by Rule 5(1)(ii). This Court has considered the effect of such switch over of procedure in the course of proceedings in Zarar Khan v. Government of Sind and others P L D 1980 SC

310. In that case the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, which are in pari materia with the rules applicable in the present case were considered and it was held:‑ "It is evident from reading of the aforementioned provisions that the procedures provided by sub‑rule (2) and sub‑rule (3) are in the alternate i.e. if the 'Authorised Officer' choses to adopt one procedure he cannot adopt the other vice versa." Accordingly the order passed in those proceedings was held to be without lawful authority. In any case we have been shown no record to indicate that the Authorised Officer had passed any order recalling his earlier order for a formal inquiry and the reasons for doing so.

9. Be that as it may we find from the charge‑sheet (show‑cause notice) that the main charges on which the disciplinary proceedings were initiated against the appellant related to charges Nos. (i) and (ii) which were dropped. The only charge that was made the subject‑matter of action related to absence from duty. However, the charge conspicuously omitted to mention any specific period during which the appellant was alleged to have absented from duty. Coupled with this is the fact that in spite of his asking no opportunity was given to him for personal hearing to explain his position. Rule 5(1)(iii)(b) contains a mandatory requirement that the accused officer shall be given a reasonable opportunity of showing cause against the proposed action. It was in obedience to the requirement of the rules that the appellant was asked whether he wanted to be heard in person and in response he answered in the affirmative. In such circumstances it has been held by this Court in Sohrab Khan Kalwar v. Secretary to the Government of Sind P L D 1980 SC 279 that any order passed in denial of the right of hearing is vitiated. We are not satisfied that there were any good reasons or any reasons at all to decline the opportunity of personal hearing to the appellant. As already pointed out the charge against the appellant was vague and unspecific, which coupled with the refusal to provide an opportunity of hearing has resulted in serious prejudice to the appellant.

10. In the result we have come to the conclusion that the order of appellant's removal from service was passed without lawful authority and is of no legal effect. The proceedings against the appellant are, therefore, remitted to the Authorised Officer for proceeding afresh from the stage of show‑cause notice in the light of this judgment, for giving a personal hearing to the appellant and dealing with his case in accordance with the rules. The appeal is accepted in these terms and the impugned judgment of the Service Tribunal, dated 29th June, 1982 is set aside. In the circumstances of this case we make no order as to costs. M.I. /G‑4/S Appeal accepted.