P L D 1968 Lahore 416 (PLP)

5. The appellant submitted his reply to this charge‑sheet on the 16th of April 1956. It was denied by him that he had sent the representations direct to the higher officers and maintained that he had sent them through proper channel but since he was feeling badly insulted and was mentally disturbed because of the orders of transfer during his illness he was obliged to send advance copies of his representations to all concerned. It was maintained that Rule 117 of the P & T Manual, Vol. II did not prohibit the direct submission of representations and appeals to the higher Authorities. It was also denied that the appellant had used unparliamentary language in his representations and it was maintained that he had brought facts to light in a polite manner. As regards the alleged absence from duty it was maintained that the appellant was on leave from the 5th of October 1955, on account of illness and had submitted his conditional resignation on the 7th of December 1955. It was denied that the Sub Divisional Officer Telegraphs, Dera Ismail Khan, had called for any explanation of the appellant for absence from duty but it was asserted that the letter of the Sub‑Divisional Officer refused to in the charge‑sheet pertained to direct submission of representations and use of unparliamentary language therein. It was also asserted that on the own showing of the department the appellant was being treated on leave as in the letter of the Sub‑Divisional Officer, dated the 24th of December 1955, and the telegram dated the 2nd of January, 1956, the appellant had been described as on leave and not as a deserter or a person absent from duty. The appellant expressed his fears in the concluding portion of his explanation that the Divisional Engineer Telephones Mr. K. R. Babar was unduly displeased with him and because of that an unhappy atmosphere had been created. He prayed that personal hearing should be granted to him by the Director General Post and Telegraphs, Karachi, because such a hearing by the charging officer will not bring any fruitful result.

6. Another charge‑sheet was framed against the appellant on the 23rd of May 1956, which also contained comments on the explanation furnished by the appellant in reply to the charge‑sheet dated the 7th of April 1956. The request of the appellant for grant of personal hearing by the Director General Post and Telegraphs, Karachi, was not considered in order, because accord ing to Mr. K. R. Babar the rules did not permit such a course. The offer to hear the appellant personally was, however, repeated. The appellant sent a reply to this charge‑sheet on the 7th of June 1956, and maintained that his transfer orders were in contravention of the rules and that he had hardly stayed in Rawalpindi for 1i years when he was transferred to Bannu during the continuance of his medical leave. He also made a grievance of the fact that no mention of joining time or travelling allowance was made in the order of his transfer. It was further stated that by sending the copies of his representation dated the 28th of October 1955, directly to the Postmaster General and the Director General the appellant had not committed any breach of discipline. So far as the charge of the use of unparliamentary language was concerned he demanded that he may be confronted with any word or sentence from his representations which may bear out that allegation.

7. With regard to the charge of absence from duty he maintained that after sending his conditional resignation on the 7th of December 1955, he was not required under the rules to join his Post. The appellant in this reply repeated the allegation that his Immediate Officers were prejudiced against him and it was for this reason that he had requested that he should be heard in person by the Director General Posts and Telegraphs, Karachi. It was conceded that the Divisional Engineer Telephones was the proper authority to give a personal hearing to the appellant but a fear was again expressed that his case may not be decided impartially because of the pressure of his Immediate Officer on the enquiring Authority. In the concluding para. of the explana tion it was submitted that the appellant would avail of the opportunity of personal hearing offered by the Divisional Engineer if he was assured that justice will be done to him.

8. A personal hearing was granted to the appellant by the Divisional Engineer on the 14th of June 1956 a copy of its record is Exh. D. 7 on the file of the case. 1t is in the form of questions and answers and during his evidence in Court the appellant complained that he was asked to restrict his submissions to answering the questions put to him. There were no further proceedings and on the 26th of June 1956, the impugned order dismissing the appellant was passed.

9. In the plaint the legality of the above order was attacked mainly on the grounds that the order bad been passed mala fide under the influence of Mian Ghulam Qadir who was stated to be a friend of Mr. K. R. Babar, the dismissing authority, that no formal enquiry had been held and no opportunity to produce defence had been given and that during the personal hearing granted by the dismissing authority he was compelled to answer only those questions that were put to him and he was not permitted to say anything. In the written statement those allegations were controverted and it was asserted that the enquiry against the plaintiff was legal and proper.

10. The trial Court struck the following issues :‑-- (1) Was the order of dismissal of the plaintiff from service ultra vires, illegal, arbitrary and malicious? (2) Relief. The trial Court found issue No. 1 against the plaintiff‑appellant and dismissed the suit and the judgment of the trial Court was upheld by the Senior Civil Judge. The Courts blow came to the conclusion that the submission of representations direct to the authorities and absence from duty having been admitted there was no need for a formal enquiry. They did not examine the validity of the proceedings before the Enquiry Officer from any other aspect.

11. The learned counsel for the appellant contended before me that the observation of the Courts below that the appellant had admitted the charges levelled against him was not correct. He had actually denied the charges and it was incumbent upon the authority concerned to bring home to the appellant the misconduct with which he was charged. It was argued that the appellant was addressing his representations through proper channel but in view of the alleged hostility of his Immediate Officers against him had taken care to send advance copies to the higher Authorities. It was also asserted that Rules 116 and 117, Posts and Telegraphs Munual, Volume II, to which reference had been made did not contemplate the imposition of any penalty for submission of a representation directly to a higher Authority and it was maintained with reference to the language of Rule 111 (1) read with Rule 118‑A of the same Manual that the only circumstance with which such a course of conduct could be visited was that such a representation could be filed without any action on the part of the authority concerned. It was also submitted that the mention of Rule 41 in the charge‑sheet was inappropriate as the said rule dealt with deserters and the fact that he was dismissed with effect from the 16th of June 1956, clearly showed that he was not being treated as a deserter although he had admittedly not joined service after the 5th of December 1955, the date on which his medical leave expired.

12. There is force in the contention of the learned counsel but in my view the impugned order of dismissal suffers from defects of a more formidable character. Both the charge‑sheets contained the allegations that the appellant had used in his representations language derogatory to his superiors. The appellant denied this charge and asked that he should be confronted with the objectionable portions but no attempt was made to put the alleged "unparliamentary" language in the form of a charge. It was incumbent on the part of the Enquiry Officer to do so before proceeding to pronounce on the guilt of the appellant. So far as this aspect of the case is concerned the appellant was condemned unheard. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules lays down that an oral enquiry shall be held as to the charges which are not admitted and the accused officer shall be entitled to give evidence in person and to have such witnesses called as he may wish. The learned counsel for the appellant invited my attention to memorandum No. 13/7/51‑S.F.I., dated the 15th of September 1951, which contains the instructions regarding procedure for holding depart mental enquiries. In clause (b) of sub‑para. (3) of para. 6 of this memo. it is stated that the accused person should be asked as to whether he wishes to be heard in person or to call any witness. There is no reference in 'both the charge‑sheets to the right of the appellant to produce evidence in his defence. The charges were, therefore, initially defective and could not be made the basis of a valid order. Where penal consequences are to flow from certain proceedings it is incumbent on the tribunal concerned to intimate to the person who is to be affected by such proceedings of his rights in the matter and ask him specifically whether he would like to avail of these rights.

13. It has been stated above that the appellant had repeatedly expressed an apprehension that he will not have a fair deal from Mr. K. R. Babar, Divisional Engineer Telephones. According to the appellant the above officer was under the influence of Mian Ghulam Qadir, Assistant Engineer, who had reasons to be annoyed with him and it was for this reason that he was insisting that he will avail of his right to be personally heard before some other and higher authority. This request was turned down by Mr. K. R. Babar for the reason that only the punishing Authority could give a personal hearing. A perusal of Exh. D. 7 which is the record of the personal hearing of the appellant by Mr. K. R. Babar shows that the contention of the appellant that he was not permitted to avail of this right in the proper manner and was asked to restrict himself to answering the questions put to him was well founded. It is clear from Exh. D. 7 that this opportunity of personal hearing was not for the benefit of the appellant but was a sort of inquisitional proceeding wherein he was subjected to a barrage of questions both searching and incriminatory. There is no doubt that in the end of this process of catechism the appellant was asked whether he wanted to say anything else and the appellant added nothing except saying that his representation in this connection may be considered. In view of the fact that the Divisional Engineer Telephones had subjected the appellant to an unwarranted process of questioning and had definitely shown to him that he was not free to have his own say this question does not carry any value. The appellant was deprived of exercising a valuable right in a proper manner and I find that the proceedings were vitiated even on this account.

14. It is also obvious that no show‑cause notice as contem plated by Article 181 of the Constitution of 1956 was given to the appellant before the order of dismissal was passed. He was, therefore, not offered any reasonable opportunity as contemplated by the constitution. Reference in this connection may be made to the case of Ibrahim v. Federation of Pakistan (through the General Manager, N. W. R. Lahore) (P L D 1957 Lah, 915) Muhammad Ihsan Khan v. The Province of West Pakistan (P L D 1963 Lah, 295).

15. The learned counsel for the respondent argued that the second charge‑sheet was in fact a show‑cause notice. He based his submission on the circumstance that there was no apparent reason for framing a second charge‑sheet. There is no explanation on this record to show as to why a second charge‑sheet was issued but I cannot persuade myself to agree to the contention of the learned counsel. The language of both the charges is similar and both are described as charge‑sheets. There is no indication that the authority concerned had come to a provisional conclusion in regard to the imposition of a particular penalty. We cannot, therefore, treat the second charge‑sheet as a show‑cause notice.

16. The learned counsel for the respondent stated that the attitude of the appellant was that of a recalcitrant and that in spite of the failure of the dismissing authority to issue a show- cause notice no relief should be afforded to him. He based his argument on the failure of the appellant to report for duty after the 5th of December 1.955, and referred in this connection to the case of Muhammad Alam v. Pakistan (P L D 1965 Kar. 100). In that case notwith standing the violation of the constitutional guarantee, the present Chief Justice of the West Pakistan High Court refused to grant a decree in favour of the appellant because he had refused to join his post at Dacca on the ground that he had opted for West Pakistan. The circumstances of the present case are different from the one cited above. The appellant gave some explanation for his failure to join duty after the expiry of his leave. He maintained that after the submission of his conditional resignation he was never called upon to join duty. It is in the evidence of Fazalur Rehman (D. W. 2) that no explanation was called for from the appellant for his failure to join duty nor was he ever asked to report duty. The reminders of the appellant to know the fate of his resignation remained unanswered and it was only on the day that he was served with a charge‑sheet that he was informed about the rejection of his resignation. The fact that he was dismissed with effect from the 16th of June 1956, would also go to show that he was being regarded on duty before that date.

17. In view of what has been stated I accept this appeal and set aside the judgments and decrees of both the Courts below with the result that the appellant will be deemed to be in service from the 16th of June 1956. He will get his costs throughout from the respondent Government. K.M.A. Appeal accepted.