1989 PLP (C (PLC(CS))

(ii) Rigorous imprisonment for one year. (iii) Fine of Rs.21acs. Appellant moved an appeal against the said order to the Deputy Martial Law Administrator, Zone `B', Peshawar who modified the order of the Summary Military Court by remitting unexpired portion of imprisonment and fine of Rupees One lac and :.::tong aside the sentence of dismissal from service. Subsequently respondent No. 1, on the strength of the above sentence, ordered his dismissal from service and his appeal to respondent No. 2 being without any fruit per communication to him of the result on 8-12-1987, he has moved the Tribunal through the present appeal on the grounds that the impugned order is illegal, ultravires of the law and rules, without jurisdiction and mala fide. Respondents were bound to initiate enquiry against him, keeping in view the charges. He was on the other hand neither charge-sheeted nor served with show-cause notice. The punishment of dismissal from service was withdrawn by the appellate authority after reviewing the order of Summary Military Court. Respondents refuted the claim of the appellant on the grounds that the appeal is time-barred and that no enquiry was essential against the appellant as he was convicted by a competent Court in a case of moral turpitude. Learned counsel for the appellant argued that the impugned action was illegal, without jurisdiction, mala fide, void ab initio and against the principles of natural justice. No charge-sheet/show-cause notice was served upon the appellant. Departmental enquiry was necessary to probe into the allegations. The power of authority is not un-restricted and unlimited in dispensing with the enquiry proceedings. He has to give cogent reasons for the same. The sentence awarded by the Summary Military Court can in no way be treated as a sole criteria for awarding the maximum punishment of dismissal from service. On the other hand learned Special Government Pleader argued that appellant was involved in an offence of moral turpitude, therefore, he was not entitled to the protection in the shape of a regular enquiry in the matter. We have given our anxious thought to the arguments advanced by the learned counsel for the parties and have come to the conclusion that the sentence by a Court and that too a Military Court cannot serve as a guideline/sole factor in dispensing away with the service of show-cause notice/enquiry. It is obligatory upon the authority to initiate enquiry against a government servant in a case involving misconduct and moral turpitude. The criteria to conduct departmental enquiry differs than the criminal prosecution of an individual. No one should be condemned unheard is the golden principle of law and it is to be followed in every case where the rights of a person are adversely affected, notwithstanding the fact that a statute or law does not contain the above proposition. A perusal of the impugned order dated 15-10-1983 would show that the appellant was dismissed by respondent No. 1 vide order which goes as under: -- "Whereas Mr. Ghulam Murtaza S.E.T, NPS-16 (Gazetted) Government Middle School, Sheikhul Bandi, Abbottabad was found guilty in the trial of case F.I.R. No. 23 dated 23-9-1982 under sections 161/420/109, P.P.C.-5(2) P.C. Act, 1923, Post Office Act, 1977 P.S. A.C.E. Abbottabad, and awarded sentence by the President Summary Military Court No. 47 c/o Martial Law Divisional Office Hazara Division, Abbottabad on 7-2-1983. Now, therefore, in exercise of the powers conferred by rules 3 of the N. -W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, read with 8(a) the Authority is pleased to order the dismissal from service of Mr. Ghulam Murtaza with immediate effect." The N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 Rule 3 deals with the grounds of penalty. Rule 5 prescribes the procedure for enquiry and rule 8 deals with the circumstances in which the authority is competent to dispense away with the enquiry proceedings. It has got two portions: (a) "where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment; or" (b) "where the authority competent to dismiss or remove a person from service, or to reduce a person in rank, is satisfied that for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause." The purpose to quote the said rules was to see as to whether respondent No. 1 has applied the rules correctly or not. In the instant case not rule (a) but rule (b) was applicable in order to dispense away with the enquiry proceedings. An authority is bound to give the cogent reasons for not initiating the enquiry against a Government servant or the non-issuance of the show-cause notice, so that an aggrieved Government servant should be able to know how to defend himself. If the authorities are needed, these are N L R 1984 Service 114, Lahore, N L R Service 54 S C of Pakistan and N L R 1984 Service

18. The Ratio decidendi of the above authorities is that the principles of natural justice must be followed in every circumstances and if the same was not adhered to, the proceedings were declared as illegal and un-warranted. On the basis of the above. we have come to an irresistible conclusion that since the appellant was not served with a show- !' cause notice, great injustice was done to him which warrants our interference in the matter. The result is that the appeal is accepted. The period between the dismissal of the appellant and the announcement of the judgment shall be treated as leave without pay. If the authority likes he can initiate de novo enquiry against the appellant. Parties are left to bear their own costs and file be consigned to the record room. A.A./104/Sr. N Appeal accepted.