2005 PLP (C (PLC(CS))

(i) No detailed departmental enquiry was held to determine the factual position, especially when the appellant had denied all the charges leveled against him in the Statement of Charges enclosed with the show‑cause notice dated 30th March, 2001 in his defence reply dated 12‑4‑2001. Similarly he has vehemently denied the charges once again in his representation/departmental appeal dated 18‑5‑2001 against the impugned order dated 30‑4‑2001. (ii) No proper, personal hearing was granted to the appellant, except the one indication of personal hearing given to him on 30‑4‑2001. It is the same date on which the impugned order was issued. Grant of personal hearing to the appellant on the same day on which he was, removed from service reflects the premeditated mind set of the respondent department. Giving him the same date for personal hearing on which the appellant was removed from service, the department tried to fulfill the legal requirement at the last moment, which is not in the true sprit of the mandatory requirement. The respondent department thus grossly violated the principle of Audi Alterm Partem. (iii) Charge at serial No.(d) of the Statement of Charges enclosed with Show‑Cause Notice dated 30‑3‑2001 served to the appellant is the same as mentioned at serial No.(a) of the Statement of Allegations annexed with the Charge‑sheet issued to the appellant on 27‑11‑2000 which was thoroughly investigated through an enquiry proceedings, culminating in the exoneration of the appellant of all the charges including the one now listed at (d) in the Show‑Cause Notice dated 30‑3‑2001 vide Notification dated 1‑3‑2001. Obviously, the repetition of the same charge in the Show‑Cause Notice dated 30‑3‑2001 smacks of mala fides on the part of the respondent department as argued by the learned counsel for the appellant. (iv) Copy of the enquiry proceedings conducted on the charges leveled against the appellant vide charge sheet dated 27th November, 2000 was not given to the appellant, enabling him to know the reasons for repetition of the same charge in the show‑cause notice dated 30‑3‑2001 and the circumstance's leading to its exoneration vide Notification of 1‑3‑2001. It strengthens our belief that the copy of the earlier enquiry proceedings conducted against the appellant was not supplied to him as the intention was to repeat the same charge against him in future so as to keep him ignorant for the reasons of the appellant's exoneration of this charge in the past vide Notification of 1‑3‑2001. (v) No tangible and substantial reasons were recorded by the respondent department for dispensing with the enquiry proceedings as stipulated in section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000. It means that no sufficient documentary evidence against the accused was available, with the department. This action of the respondent department grossly violated the law referred to above. (vi) The impugned order dated 30‑4‑2001, was not an exhaustive and speaking order, which breached the inalienable right of the appellant to know the reasons for his compulsory retirement from service.

4. It is evident from the above that the respondent department committed myriad legal and procedural infirmities in the disciplinary proceedings conducted against the appellant in violation of the consistently held view of the superior judiciary, including the apex Court that the proceedings should be as per law and free from legal lacuna so, as to meet the ends of justice.

5. During the course of the arguments the learned counsel for the respondent department conceded that no departmental enquiry was conducted by the department but submitted in the same breath that it was not considered necessary to hold the enquiry due to incriminating evidence available against the appellant. However, no reason or basis was recorded for dispensing with the enquiry proceedings in compliance with the provision of section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 as referred to above. The learned counsel also contended that the appellant was compulsory retired from service as a result of disciplinary proceedings commenced with the Show‑Cause Notice dated 30‑3‑2001 and the major penalty of compulsory retirement from service imposed on him was nothing to do with the charge‑sheet served to the appellant on 27th of November, 2000. However, he could not give a satisfactory reply to the observation that why a charge at serial No.(d) of the Statement of Charges annexed with Show‑Cause Notice of 30‑3‑2001, investigated during a previous enquiry initiated in the wake of charge‑sheet of 27‑11‑2000 and eventually dropped, inter alia, due to the exoneration of the appellant vide Notification of 1‑3‑2001 was again included in his Statement of Charges enclosed with the show‑cause notice .dated 30‑3‑2001.

6. Based on the afore‑mentioned discussion, the impugned order dated 30‑4‑2001, of compulsory retirement of the appellant is set aside and in consequence thereof the appellant is reinstated into service with effect from the date of his compulsory retirement i.e. 30‑4‑2001. The respondent department is further directed to initiate fresh disciplinary proceedings against the appellant within 4 (four) months of the date of this order as per law, removing the legal and procedural infirmities as detailed above. Back-benefits and appellant's further retention in service will depend on the findings of the de novo disciplinary proceedings as directed.

7. Short order accepting the appeal was announced in the open Court on 16‑12‑2002. Detailed reasons as above for accepting the appeal are given in this order.

8. The appeal accordingly, stands disposed of in the terms indicated above.

9. No order as to costs.

10. Parties be informed. H.B.T./101/FST Order accordingly.