2000 PLP 1743 (SCMR)

JAVED 1QBAL, J.

This Civil Petition for Leave to Appeal is preferred on behalf of Khuda-i-Nazar (petitioner) under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973 against judgment dated 28th of August, 1998 passed by learned Service Tribunal, whereby, the appeal filed by petitioner against order of his removal from service passed by Director, Archaeological Museum Balochistan, Quetta on 20-10-1996 has been kept intact. Precisely stating the facts of the ease are that petitioner was initially appointed as sweeper by Director Archaeological Museum, Quetta by means of order dated 12-7-1981 and subsequently he was appointed as Gunman vide order dated 1-8-1987 by the Secretary Information and Sports Department, Government of Baloshistan, Quetta. While performing his official duties, two pieces of antiquities recovered from Miri Kalat Turbat were damaged when the showcase wherein the same were placed was being cleaned by the petitioner. He was purportedly proceeded against under the Balochistan Civil Servants Act, 1974 (IX of 1974) and Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. The petitioner after observing formalities was removed from service vide order dated 20-7-1996. Being aggrieved petitioner submitted an appeal to the Secretary Information and Sports Department on 30-10-1996 which could not be decided and accordingly the Service Tribunal was approached by means of appeal dated 16-12-1996` which was dismissed being premature on 1-8-1997 and consequently, another appeal was filed by the petitioner which met the same fate and dismissed on 6-11-1998. We have heard at length the petitioner who mainly argued that proper opportunity of hearing was never afforded and besides that the procedure as prescribed in the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 was not complied with in letter and spirit which resulted in serious miscarriage of justice. It is also contended that due to personal grudge and bias of the Curator he was removed from service. It is pointed out that he was having more than 15 years' service at his credit with unblemished record and the antiquities were neither damaged deliberately nor the showcase was broken wilfully which aspect of the matter was never considered by his department nor learned Balochistan Service Tribunal and resultantly serious prejudice has been caused. The learned Advocate-General appeared on Court notice alongwith Dr. F.D. Khan, Director, Archaeological Museum Government of Balochistan, Quetta. The learned Advocate-General found it difficult and rightly so to support the order passed by learned Service Tribunal. The Director, Archaeological Museum, however, attempted to point out that there was no personal grudge or bias against the petitioner and disciplinary action was initiated as due to his negligence two antiquities were damaged badly and which caused a substantial and irreparable loss to national heritage. ' We have carefully examined the respective contentions as agitated by the petitioner and respondent in the light of the relevant provisions of law and record of the case. We have carefully perused the judgment dated 6-11-1998 passed by learned Service Tribunal Balochistan, -Quetta. Let we mention here at the outset that the procedure as prescribed in the Rules was neither adhered to by the department which aspect of the matter escaped unnoticed and resulted in serious miscarriage of justice. The learned Service A Tribunal has not examined the controversy with diligent application of mind and appeal of the petitioner was disposed of in a casual and slipshod manner vide judgment dated 6-11-1999 and operative portion whereof is reproduced hereinbelow for ready reference:-- "We have gone through the record of the case and have considered arguments pleaded from both sides, while removing the appellant from service procedure prescribed in the E&D Rules was properly adopted by issuance of a show-cause notice and giving a copy of inquiry report to the appellant for defence. The appellant has confessed for breaking of two pieces of antiques which is an offence under the provisions of Antiquities Act, 1975 for which a punishment of 3 years' R.I. or with fine or both is there under the law." A bare perusal of the above-referred extract would reveal that the controversy has neither been dilated upon seriously nor the relevant rules were taken into consideration. The impugned judgment cannot be equated to that of a speaking one. A thorough examination of the entire record would indicate that the Authority, the Authorized Officer and the Inquiry Officer have failed to abide by the relevant rules in letter and spirit. It is worth mentioning that the procedure as prescribed under Rule 6 of the Rules pertaining to inquiry procedure has not been adhered to strictly. The Authorized Officer failed to frame the proper charge and communicate it to the petitioner alongwith statements of allegations explaining the charge and other relevant circumstances proposed to be taken into consideration. It will not be out of place to mention here that framing of 'charge and its communication alongwith statement of allegations is not mere a formality but it is a mandatory prerequisite which is to be followed. It is well-settled by now that:-- 'The provisions of the rules that the authority having power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it based and of other circumstances which the authority proposes to take into consideration are mandatory. Non-compliance with such provisions would amount to transgression of on obligatory rule which lays down the minimum standards comprising reasonable opportunity to be afforded to a Government servant. The amount of prejudice which would be caused to the person concerned need not' be taken into consideration for non-compliance with the rule itself would constitute denial of a reasonable opportunity which per se would vitiate the action taken. Where the charges are vague and are not accompanied by a statement of allegations this causes prejudice to the official concerned because he is deprived of information as to the basis on which the charges have been framed against him and the other circumstances which were taken into consideration when passing orders.". (PLD 1970 Lahore 811). Besides that what has been stated hereinabove, the Inquiry Report is silent about the oral or documentary evidence which was considered to substantiate the. allegations as levelled against the petitioner and moreso the provisions as enshrined in Rule 7 (6) of the Rules were also violated as the Inquiry Officer failed to give a specific findings and grounds for initiation of further action. Similarly, the Authorized Officer also failed to comply with the procedure as enumerated in Rule 7 (7) of the Rules. All the formalities have been completed in a haphazard manner which depicts somewhat indecent haste. We are of the considered opinion that proper opportunity of hearing has not been afforded to the petitioner and maximum penalty of removal of service has been imposed without examining the gravity of the alleged offence. It is to be noted that entire record is silent and it could not be proved that damage caused to the entiquities was deliberate or intentional which could be due to negligence as the petitioner remained in service for more than a decade but no such allegation was ever levelled against him. We have also observed that the show-cause notice is vague, sketchy and ambiguous as is apparent from the show-cause notice that a mention regarding previous conduct and behaviour was also made, but no specific instance could be quoted. We are conscious of the fact that "the competent Authority is entitled to take into consideration the record and the past service of a civil servant in order to determine the appropriate punishment, but before taking this into consideration the civil servant must be apprised of the record of his past service and of the fact that it would be taken into account to decide the question of punishment (AIR 1960 Mysore page 159) But in the case in hand the petitioner was neither apprised of the record of his previous conduct nor' was informed that it would also be considered for awarding punishment. It is worth mentioning that no action whatsoever has been initiated under section 19 of the Antiquities Act, 1975 pertaining to Prohibition of Destruction, Damage etc. of protected Antiquities. In the light of what has been discussed hereinabove, it can be inferred safely that the damage and the admitted manner in which it was caused to antiquities may be due to negligence which would not be sufficient E to prove the factum of being "inefficient or has ceased to be efficient" as provided in Rule 3(a) of the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. In this regard we are fortified by the dictum laid down in 1998 SCMR

69. In view of above discussion, the petition is converted into appeal and is consequently accepted and order dated 20-10-1996 passed by Director Archaeological Museum, Quetta and order dated 6-11-1998 passed by learned Service Tribunal are hereby set aside with the direction that the petitioner be reinstated as Gunman with effect from 21-10-1996 with all back benefits. M.B.A./K-23/S Appeal accepted.