1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑For disposal in this judgment, we have got an appeal under section 4 of the Service Tribunal Act, 1973 filed by the appellant against the order of his removal from service (Annex. D) passed by respondent No. 1 on 9‑1‑1984, when he was serving as S.B. Clerk in Lahore Cantt. Sadar Bazar, Post Office.

2. These are the facts in the background." On 8‑5‑1983, the appellant who was served with a Memo. (Annex. A) which in fact, purports to have been a charge‑sheet containing the following allegations: (i) Fraudulent withdrawal of Rs. 5,000 from S.B. Account No. 26811 on 23‑11‑192, by forging the signatures of the deceased depositor. (ii) Signing the documents in place of the S.P.M. incharge when the S.P.M. was also on duty. (iii) Making transaction without the production of S.B. Pass Book. (iv) Erasing and disfiguring the entries in S.B. Ledger. (iv) Misconduct.

3. He was called upon to show‑cause why major penalty of dismissal from Government service may not be imposed against him and directed to submit his statement in defence within ten days of tile receipt of the memorandum. He was asked to state if he wanted to be heard in person.

4. He submitted his explanation in writing (Annex. B) where all the allegations were denied. He pleaded that his involvement in the matter was the result of a conspiracy.

5. On 15‑5‑1983, Saber Hussain Shah, Assistant Superintendent, Post Offices (South Division), Lahore was appointed as Inquiry Officer to conduct an inquiry into the allegations against tile appellant (Annex. C). He submitted a report after completion of his proceedings, where-after on 9‑1‑1984, the appellant was removed from service in consequence of the disciplinary proceedings (Annex. D). His departmental appeal (Annex. E) filed on 5‑2‑1984, was dismissed by respondent 2 oil 20‑10‑198‑1 (Annex. F) with, tile, observation that there was no reason for reversing the order of removal froth service:

6. Rule 5(1)(ii) provides that the Authorised Officer ‑shall decide whether in the light of facts of tile case or in the interests of justice, ail inquiry should be conducted through an Inquiry Officer or Inquiry Committee and that if he so decides, tile procedure indicated in Rule 6 of the Rules, shall apply. Rule 6 (1) of the Rules, lays down that the Authorised Officer shall frame a charge and Communicate it to till; accused together with the statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.

7. As already noticed the appellant was served with Memo dated 8-5-1983, containing certain charges against him. This document has also been termed as a letter. However, regardless whether it is a letter or a memo in form, we may take it as a regular charge‑sheet within the meaning of rule 6(1) of the Rules, However, this charge‑sheet was nut accompanied by a statement of allegations explaining the charge and of any other relevant circumstances, which were proposed to be taken into consideration. This undoubtedly constituted a basic and material irregularity in the proceedings of the Authorised Officer, with the result, that it can be asserted without fear of contradiction that the appellant did not have a fair deal. In any case, it was a material irregularity which vitiated the proceedings.

8. Then, the record betrays another material irregularity. It becomes available from the fact that the appellant was not served with a final show‑cause notice. He was provided with a copy of the report of the Inquiry Officer, by means of letter dated 1‑11‑1983. All it said was that a copy of the report was being despatched and that the appellant should submit further explanation within seven days of its receipt. This certainly did nut serve the purpose of second show-?cause notice, where the circumstances appearing during the course of inquiry against him should have been spot‑lighted to afford him an opportunity to render an explanation. Since this was nut dune, I have no doubt in my mind that the appellant was not afforded an opportunity to explain his position. The service of final show‑cause notice was necessary in the interests of justice and in its absence, it is extremely difficult to say that the appellant was afforded an adequate opportunity to defend himself. The respondent failed to fulfil an important requirement which has caused a material irregularity in their proceedings, as has resulted in miscarriage of justice.

9. This second show‑cause notice was all the more necessary in view of the Inquiry Officer's finding to the effect that "the entire proceedings look like "rigmarole" and nothing can be said conclusively" and that "the above factors made the matter doubtful and the charges cannot, therefore, be in my opinion, proved conclusively". The report also shows that the Inquiry Officer was inclined to give the appellant a benefit of doubt, in view of the fact that the payment was made on production of S.B. Pass Book. It was observed by him that M/s. Muhammad Aslam Bhatti, Mazhar Iqbal and Hameed Khan, Clerks of the Post Office were directly involved in the case and that they got arranged the payment and knew actual position of the case.

10. Irrespective of this report, however, the competent authority passed order of removal against the appellant, evidently by taking into account certain other circumstances. The reliability or otherwise of those circumstances apart, one thing is quite clear. It is that the appellant should have been served with a second show‑cause notice, when certain other circumstances were being relied upon in support of an order of removal. It was the bounden duty of the competent authority to point out those circumstances in the second show‑cause notice to enable the appellant to explain his position. As already observed before, this necessary formality was not fulfilled and the result was that the appellant could not get proper opportunity to defend himself against the action proposed to be taken against him.

11. For these reasons, it is held that the disciplinary proceedings in this case were vitiated on account of the existence of certain material irregularities. The shall be reinstated in service with immediate effect. The respondents will, however, be at liberty to start disciplinary proceedings against him afresh on the same charge and to determine, on the conclusion of fresh proceedings, as to how the period intervening between the appellant's removal from service and reinstatement is to be treated. No order as to costs.

12. Parties to be informed. A,A./446/Sr. F Order accordingly.