1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).--In this appeal under section 4 of the Service Tribunals Act, 1973 the appellant who had been working as Auditor, TAI Section in the office of AGPR., Islamabad (Respondent 4) has challenged the validity of the order of his dismissal from service (Annexure V) passed by respondent 4 as Authority in exercise of powers conferred upon him under Rule 5(4) of the Government Servants (Efficiency and Discipline) Rules, 1973 .

2. These are the material facts: The appellant was placed under suspension on 20-3-1977 after which he was served with show-cause notice dated 11-5-1977 (Annexure `I') which purports to have been signed by the Additional Accountant General, Pakistan Revenues. Its importance deserves a detailed notice. It is in the following terms: "In the light of the enclosed statement of allegations, you have been found guilty of gross misconduct. It is, therefore, proposed to impose upon you one of the penalties as specified in Rule 4(i)(a) & (b) of the Government Servants (Efficiency and Discipline) Rules, 1973. You are, therefore, served with this show-cause notice the reply to which should reach the undersigned with in 14 days of the issue of this notice, failing which ex parte action will be taken against you. You should state in writing as to why the proposed action should not be taken against you."

3. Since this notice was stated to have been issued in the light of accompanying statement of allegations, we might as well make a detailed reference to this document. It makes the following reading: "While he, Mr. M. Arif Goraya, was posted as Auditor in TA.I. Section, a fake authority was issued to the State Bank of Pakistan, Rawalpindi, authorising them to make payment of Rs.7,53,150 to the Muslim Commercial Bank Limited, Jmnah Road, Rawalpindi for credit to the current Account No. 1102 of the Pakistan Medical Research Council quoting a fictitious sanction of the S.T.R. Division, Islamabad. A Preliminary Enquiry Committee was constituted to probe into the abovementioned case of attempted fraud to the extent of Rs.7,53,150 by issue of a fake payment of authority. The Enquiry Committee on the basis of evidence collected by them has held that the fake sanction letter of S.T.R. Division was brought by him and handed over to Mr. Ayaz Khan, Auditor of TA.I. Section with the instructions to prepare the draft authority letter. Mr. Ayaz Khan, Auditor prepared the draft and handed it over to him. He then got the authority letter typed and gave it to Mr. Ayaz Khan for comparing the same with the draft. Mr. Ayaz gave the letter back to him after doing the needful. He Mr. M. Arif Goraya after having the signatures of his Branch Officer thereon again gave the letter to Mr. Ayaz Khan Auditor who placed it on the table of Assistant Superintendent for getting special seal embossed thereon. He in collaboration with Mr. Ayaz Khan, Auditor and Mr. Javid Hamid Junior Auditor (Diarist) managed to issue the fake authority letter to the State Bank of Pakistan indicating thereon a fictitious issue number without making any entry in any sectional diaries. He also managed with the help of above named officials to remove/destroy the sanction letter on which the authority was prepared and also the office copy of the fake authority letter. The Branch Officer T.A.I. (Mr. Z.UA. Qureshi) has disowned the signatures on the authority letter which indicated that his is natures were also forged by him on the authority letter. In view of the above he is found guilty of gross misconduct on his part."

4. In his reply dated 24-5-1977 (Annexure-II) it was submitted by the appellant that it was not possible for him to furnish an adequate explanation to the notice in the absence of a copy of oral and documentary evidence adduced in support of allegation-, and a copy of the report of Preliminary Enquiry Committee. An additional request was that he may be allowed to examine the documents relevant to the allegations. The appellant pointed out that he should have been given an opportunity to cross-examine the witnesses,

5. After this explanation had been submitted, nothing was heard of the case for a period of about six years and it was then started afresh with service of another show-cause notice dated 21-3-1983 (Annexure III) containing the same allegations. This time it was signed by the Accountant General (Respondent 4) who was admittedly the `Authority' to this case. The appellant's explanation (Annexure IV), more or less with the same averments he had already made in his earlier explanation, having failed to find favour, he was dismissed from service by respondent 4 by order dated 29-2-1984 (Annexure V). His departmental appeal dated 20-3-1984 (Annexure VI) failed to produce any result and he was obliged to have recourse to this Tribunal with the present appeal.

6. The gist of the appellant's case is that nature of allegations against him required a regular inquiry after due service of a charge-sheet where he could have had the opportunity of cross-examining the witnesses and produce evidence in defence. It was pleaded that summary procedure adopted by the respondents was not justified under the circumstances of this case and that the allegations against the appellant could not be substantiated against him without production of evidence, either oral or documentary. The defence, in the main is, that before passing the impugned order the appellant was given full opportunity to defend himself and that he had admitted during the course of personal hearing that material record including the preliminary inquiry report was made available to him.

7. As it has already been seen, show-cause notice dated 11-5-1977, seems to have been given under Rule 5 (1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973. Rule 5(1)(ii) requires that the authorised officer shall decide whether in the light of facts of the case or in the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply. Sub-clause (iii) of this rule is that if the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall-- (a) by order in writing: inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.

8. As the respondents case goes, the basis of this show-cause notice and the accompanying statement of allegations is provided by the findings of a Committee appointed by the Accountant-General (respondent 4) to enquire into the fraudulent authority for Rs.7,53,150 issued by T.A.I. Section, AGPR, Rawalpindi in favour of Science and Technology Research Division, Government of Pakistan. This inquiry was only preliminary to nature and there is no denial of the fact that the appellant was not associated with its proceedings and no evidence was recorded in his presence. Evidently, therefore, he could not have the opportunity of cross-examining the witnesses, which is an essential ingredient of a regular inquiry without which no just conclusion, binding the accused, can possibly be reached. 9, I feel no hestitation in saying that summary procedure adopted in this case for service of show-cause notice in the terms of Rule 5 (1)(iii) was not warranted by the relevant circumstances. It is not difficult to appreciate that the nature of allegations was such as required production of oral or documentar3 evidence, which could be possible only in the case of a regular inquiry followed b5 service of charge-sheet with statement of allegations. The appellant could not be proved to have associated with the issuance of fraudulent authority letter without positive oral evidence. The statement of allegations is suggestive of the fact that he contrived the drafting of fake authority letter and forged the signatures of the authorised officer incharge of the concerned branch. These allegations are evidently such in nature as could be proved only through regular inquiry. Apart from the nature of allegations, the mere fact that a preliminary inquiry was considered necessary, is in itself sufficient support of the view that it was a case o regularly inquiry.

10. The findings of preliminary inquiry committee have been used in the: case in support of the issuance of the show-cause notice, ultimately resulting it the appellant's dismissal from service. I feel no hesitation in saying that the; amounts to a palpable denial of the established right to defend against the proposed action. The obvious result of this procedure, to the circumstances of the; case, was gross miscarriage of justice. The respondents have used the findings o a Committee which was entrusted with the task of only a preliminary inquiry and the appellant has been condemned on the basis of infirm findings arrived at with the support of unsound evidence recorded in his absence without giving him a~ opportunity to cross-examine the witnesses, which was necessary to assess their veracity. There is no system of administration of justice, which can authorise reliance on the statement of a witness who is not made to go through the mill o cross-examination. The testimony of such a witness is worthless.

11. As it has already been noticed in Rule 5(1)(ii) of the Rules, it is the bounden duty of an authorised officer to decide whether an inquiry should be conducted in a particular case. This decision is to be made in the light of the fact of a case or in the interests of justice. Notice under sub-clause (iii) of this clauses served only if the authorised officer decides that it is not necessary to have a inquiry conducted in the matter. This procedure; requires an address by the authorised officer to the material already available from the record in the form documents other relevant circumstances, material to the subject-matter, can also be taken into consideration by him in deciding whether an inquiry should o should not be conducted. The expression "in the light of the facts of the case" i suggestive only of those facts which can be spelled out of the record already i; existence at the time of initiation of disciplinary proceedings. I have no doubt I my mind that this expression is by no means suggestive of any material or facts which are brought into existence in consequence of a preliminary inquiry, which is a circumstance exterior to those already available from the record. Further, whether an inquiry is necessary in a particular case is to be decided by the authorised officer in the interests of justice, which requires due application of mind and an appeal to the circumstances of a particular case. He has to see whether those circumstances justify a jumping to the presumption that the accused must have done something, so as to warrant the issuance of a notice under Rule 5(1)(iii) of the Rules envisaging a summary procedure.

12. Therefore, dispensing with the necessity of an inquiry under the circumstances of a case such as the one we are seized of, involves clear violation of the provisions of this rule. Any other interpretation is bound to lead to arbitrary exercise of powers and injustice. This would amount to putting premium over the department's failure to adopt the proper procedure of holding an inquiry. The endorsement of such a procedure would encourage and authorise the department to dispense with the holding of a regular inquiry m every case and base the disciplinary proceedings on the findings of a preliminary inquiry. As it can easily be seen, every department would then prefer a runaway procedure of holding a preliminary inquiry without associating the accused and allowing him an opportunity to cross-examine the witnesses, to bring about a Finding which may subsequently be pressed into service to issue a show-cause notice under Rule 5(1)(iii) of the Rules and dispense with the conduct of a regular inquiry. I fail to understand where would the holding of such an inquiry remain necessary. If a justification for such a procedure can be spelled out of the relevant rules. The Advocates of this view read something in the rules, which is evidently not there.

13. A show-cause notice under these circumstances cannot be said to have afforded an accused with a reasonable opportunity of showing cause against the proposed action within the meaning of sub-clause (iii) of clause (1) of Rule (5). We might as well mention O.M. No. 6/8/79-D. I, dated 10-7-1979 in support of this view. It says that service of show-cause notice resulting in the explanation in writing denying allegations contained in that notice does not amount to providing the accused with a reasonable opportunity of showing cause as required by the rules. The requirement of reasonable opportunity of showing cause against the proposed action can be satisfied only if particulars of the charge or charges, substance of the evidence in support of the charges and specific punishment proposed, are communicated to the accused.

14. Apart from the aforementioned considerations, the allegations sought to be conveyed through statement accompanying the notice are rather vague and indefinite. It says that the appellant "after having the signatures of his branch officer thereon, again gave the letter to Ayaz Khan, Auditor who placed it on the table of Assistant Superintendent for getting special seals embossed thereon". I am of the view that the expression "having the signatures of his branch officer" does not necessarily convey that he forged those signatures. There should have been a positive allegations to that effect.

15. As it appears from the respondent's written statement, an attempt has been made to defend and justify the second show-cause notice dated 21-3-198? which was issued under the signatures of respondent 4, who was admittedly the `Authority' in this case. I fail to understand how this notice could constitute a basis for the appellant's dismissal when the earlier notice is admitted to have been issued by the authorised officer. As I could understand during the course of arguments advanced by the respondents, their case is that the Additional Accountant-General was the authorised officer in this case. If this be so, I fail to understand how the Accountant-General could act as the authorised officer. The basis of action against the appellant is evidently the second show-cause notice dated 21-3-1983. This was obviously incompetent because of having been issued by the `Authority'. If the Additional Accountant-General was the authorised officer, as admitted by the respondents, the appellant has been denied of the opportunity of his case having been considered by two officers at different stages. He has been deprived of the advantage of the recommendations of the authorised officer which he could have made after due application of mind.

16. It has been contended by the respondents in their written statement that there is no rule in the Efficiency and Discipline Rules, 1973, for precluding the `Authority' from taking an action in the absence of the "Authorised Officer." Strange enough, this plea has been taken in spite of the fact that first show-cause notice is stated by the respondents, to have been issued by the "Authorised Officer". It is not their case, as a matter of fact, that there was no Authorised Officer in this case.

17. For these reasons, I am of the view that it is not possible to uphold the impugned order. It has been passed in violation of the Rules and cannot be said to have amounted to fair administration of justice. It is, therefore, set aside in acceptance of the appeal. The appellant shall be reinstated in service with immediate effect. The respondents shall be within their rights to initiate fresh disciplinary proceedings against the appellant on the same charge in accordance with law and rules and to take a decision as to how the intervening period as well as the suspension period of the appellant is to be treated on the conclusion of these proceedings. In case, fresh disciplinary proceedings are not undertaken against the appellant or are not completed by the respondents within nine months of the communication of this order or the appellant is exonerated of the charge against him, the appellant shall be entitled to all the consequential benefits including full pay and allowances for the intervening period as well as for the period of his suspension. There will be no order as to costs.

18. Parties to be informed. AA./495/Sr. F Appeal accepted.