1996 PLP (C (PLC(CS))

9. The charge‑sheet was sent to the appellant and he was required to submit his reply within a week. The copy of the charge‑sheet was also sent to District Agriculture Officer, Poonch with the directions that reply to the charge?-sheet be obtained from the appellant and be sent to Authorised Officer so that the inquiry might be completed. The procedure adopted by the Authorised Officer and the Inquiry Committee when seen and judged in the light of the procedure laid down under Rules 5 to 7 of the Efficiency and Discipline Rules appears wholly alien to the said procedure which we endeavour to indicate as under: (1) The Authorised Officer has to decide within three days of the receipt of the directions from the Authority under Rule 5 or within such further period as may be allowed by the Authority on the written request of the Authorised Officer whether an inquiry is necessary in the light of the facts of the case. (2) In case an Inquiry Officer or Inquiry Committee has been constituted the Authorised Officer shall simultaneously frame a charge against the accused civil servant and communicate it to 'him alongwith the statement of allegations explaining the charge and other relevant facts which are proposed to be taken into consideration. (3) The accused is entitled to submit his written defence from the day the charge has been communicated to him within a reasonable time which shall not be less than seven days and more than fourteen days before the Inquiry Officer or the Inquiry Committee as the case may be. (4) The Authorised Officer shall immediately forward the record and other material as is necessary for the conduct of the Inquiry to the Inquiry Officer or Inquiry Committee. (5) The Inquiry Officer or the Inquiry Committee on receipt of the record and explanation of the accused shall‑‑ (i) enquire into the charge; (ii) may examine such oral or documentary evidence to prove the charge or in defence of the accused; (iii) where the witness is produced by the one party, the other party is entitled to cross‑examine that witness; (iv) the Inquiry Officer or Inquiry Committee shall hear the case from day to day and no adjournment shall be given. The reasons for the adjournment has got to be recorded in writing and every adjournment is to be reported to the Authorised Officer. Normally, no adjournment shall be more than a week; (v) the Inquiry Officer or Inquiry Committee under Rule 7(6) shall complete inquiry proceedings within a period of sixty days commencing from the last date of submission of the written defence by the accused and within ten days of this period of sixty days or within such period as may be allowed by the Authorised Officer submit his or its findings to the Authorised Officer; (vi) the inquiry proceedings are of a judicial nature. The statement of witnesses or of any of the parties‑has to be recorded on oath.

10. Viewing the inquiry proceedings in the light of the above‑stated procedure relating to conduct of the inquiry under the Efficiency and Discipline Rules we find that the Authority issued directions on 18‑9‑1993 to initiate proceedings under Efficiency and Discipline Rules against the appellant. The Authorised Officer framed the charge on 2‑2‑1994 thereby violating the mandatory provisions of Rules which require the Authorised Officer to decide within three days of the receipt of the directions of the Authority under Rule 5 or within further period allowed by the Authority on the written request of the Authorised Officer whether inquiry is necessary. The Authorised Officer appointed an Inquiry Committee on 2‑2‑1994 and sent copy of the charge‑sheet to the District Agriculture Officer, Poonch requiring him to get the reply of the accused and send it to him for completion of the inquiry report. Under Rule 6 the Authorised Officer shall require the accused within reasonable time from the communication of the charge‑sheet together with a statement of allegations to put in a written defence before the Inquiry Committee. The Authorised Officer instead required the appellant to submit hip reply within a week (which again is a violation of the rules which provide the accused a period of not less than seven days or more than fourteen days) and directed the District Agriculture Officer to get the explanation of the accused. The Inquiry Committee did not record any evidence and no written defence was allowed to be put in by the appellant. The statement of the appellant was recorded on 29‑3‑1994 without putting the appellant under Oath. The appellant denied the charge of the continuous absence from the duty. No evidence was recorded regarding the allegations contained in the charge‑sheet and thus the appellant was deprived of his statutory right of cross‑examine the witnesses which could be produced on behalf of the department and was also deprived of producing any evidence in support of his defence. The Inquiry Officer and the Inquiry Committee under Rule 12 of Efficiency and Discipline Rules have 'the powers of a Civil Court trying a suit under the Code of Civil Procedure in respect of the following matters namely‑‑ (a) summoning and enforcing the attendance of any person and examining him on Oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; and (d) issuing commissions for the examination of witnesses or documents. The appellant was not administered any oath when he was examined by the Inquiry Committee. The Inquiry Officer or the Inquiry Committee is bound to examine the witnesses in support or defence of the charge on oath. The failure of the Committee to administer oath the appellant is violation of the abovesaid Rules and statement of the appellant before the Committee without oath has no legal sanctity and cannot be read against him. The only piece of evidence appearing against the appellant is devoid of any legal basis, therefore, the charge shall be taken as it has not been proved against the appellant. The above facts reveal that the proceedings under the Efficiency and Discipline Rules were conducted in utter disregard of the procedure laid down in the said Rules.

11. It is most unfortunate that such high Ranking Officers of the departments have shown complete ignorance of the procedure to be adopted to conduct the proceedings under the Efficiency and Discipline Rules. They enjoy a lot of privileges and perks from the public exchequer and they must make efforts to put in their available energy to discharge the duties in accordance with rules and regulations. They are under solemn responsibilities to maintain efficiency and discipline in the department. They will lose nothing if they care to read the relevant provisions of law concerning the matters coming before them for disposal. The Government has been benevolent to provide them the facilities of costly Pajeros and fully furnished offices and in return expects them to perform their duties strictly in accordance with law, rules and regulations. The disregard of rules etc. not only causes disrepute and dissatisfaction against the Government and its Departments but also causes financial loss to the Government which could be avoided with a bit careful exercise of the official authority. We can only pray to Almighty Allah to give them realization of their official responsibilities.

12. We propose to invite the attention of the Chief Secretary to Notification No. S&GAD/SO‑IV‑51/82‑1752‑1803, dated 13‑9‑1982 wherein Guiding Principles for departmental inquiries have been laid down and also the Check List of Requirements for conducting inquiries against civil servants issued under No. S&GAD/E‑8/21‑130/89, dated 10‑1‑1989. We also propose that the abovementioned Guiding Principles and Check List of Requirements should be circulated amongst the officers having been designated as Authority or Authorised Officer under the Efficiency and Discipline Rules. The copy of this judgment under special cover by name be sent to the Chief Secretary for necessary action.

13. In the light of above discussion we accept this appeal and set aside the order under appeal and direct that fresh inquiry may be held against the appellant in accordance with the provisions of Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977. No order as to costs. H.B.T./280/Sr. AJ&K????????????????????????????????????????????????????????????? ??????????? Appeal accepted.