2003 PLP (C (PLC(CS))

FAZALUR REHMAN KHAN, J.

This writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order dated 10-1-1996 passed by respondent No.1 whereby the petitioner was dismissed from service as Chief Officer (B-16), Municipal Committee, Lakki Marwat.

2. The brief facts, giving rise to this writ petition, are that while serving as Chief Officer, District Council, Bannu, the petitioner allegedly mis-appropriated an amount of Rs.24,48,

624. According to the allegations levelled against the petitioner, this amount consisted of the following:-- (i) Income Tax for Mutation fee for 1991-1992. Rs. 1,11,000 (ii) Income Tax of Export Tax for 1991-92. Rs. 2,55,000 (iii) Development Cess of Export Tax for 1991-92. Rs.12,75,000 (iv) Development Cess of Export Tax for 1992-93 Rs.8,07,624 Total Rs.24, 48,624

3. The petitioner allegedly received the above amount and he was required to deposit the same in Bank in account of the Council but he failed to do so. Accordingly, he was charged for the embezzlement of the above amount and to this effect, a charge sheet was framed by respondent No.1 as Chairman, Local Council Board, N.-W.F.P. in the capacity as "Authority" of the petitioner, by an order dated 23-2-1994. The charge sheet alongwith the statement of allegations of the same date was served on the petitioner, asking him to submit reply within 14 days of the receipt of the charge sheet and to intimate as to whether, he admits the charges and if not, what explanation or defence he would wish to offer and further, whether he desires to be heard in person. At the same time, Divisional Director, Local Government and Rural Development Department, Kohat was appointed as Inquiry Officer to the petitioner who, after conducting the inquiry, found the petitioner guilty of the charge, accordingly, he recommended the dismissal of the petitioner from service, in pursuance of which, the petitioner was not only dismissed from Service but criminal proceedings alongwith proceedings for recovery of the embezzled amount were ordered to continue, vide order dated 10-1-1996.

4. Against the foregoing order, the petitioner filed an appeal before Governor, N.-W.F.P., Peshawar. However, by a letter dated 9-4-1996, the petitioner was informed that his appeal under the law lies to respondent No. 1 and not to the Governor, N.-W.F.P., accordingly, the same cannot be heard. Hence, this writ petition.

5. We have heard the learned counsel for the petitioner as well as the learned Deputy Advocate-General for the respondents and have also perused the record.

6. In the writ petition, two objections have been raised firstly; that no proper opportunity was given to the petitioner by the Inquiry Officer in order to plead his case, as such, he has been condemned unheard and secondly, the impugned order was passed by respondent No. 1 in the capacity as Authority as well as Authorised Officer of the petitioner which is not warranted by law and liable to be struck down.

7. In the circumstances of the case, we will first take the second objection for decision and this objection carries weight. Perusal of the record shows that-respondent No. 1 not only charge sheeted the petitioner in the capacity of "Authority" but in the same capacity, he also dismissed him from service. The petitioner belongs to the Local Council (Provincial Unifiled Group of Functionaries) and is governed by N.-W.F.P. Local Council Servants (Efficiency and Discipline) Rules, 1980 (hereinafter called the rules) and the procedure for taking disciplinary action against a servant is prescribed in rules 5 and 6 thereof.

8. According to rule 5, where a servant is accused of subversion, corruption or misconduct, the Authorised Officer may require him to proceed on leave or with the approval of the Authority, suspend him and then he is required to decide as to whether in the light of the facts of the case or in the interest of justice, an inquiry should be conducted through an Inquiry Officer or an Inquiry Committee and if he decides that it is necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, then the procedure prescribed in rule 6 will be adopted.

9. Under rule 6, the Authorised Officer then will frame a charge and will communicate the same alongwith the statement of allegations to the accused requiring him to put in written defence and to state whether he desires to, be heard in person. In the event of the appointment of Inquiry Officer or Inquiry Committee, the procedure contained in rule 6(2) of the Rules is to be followed and on receipt of the inquiry report, the Authorised Officer will determine whether the charge against the accused has been proved. If proved, then the Authorised Officer has to determine as to whether a minor penalty as contained in rule 4(1)(a) of the Rules is to be imposed or, a major penalty as contained in rule 4(1)(b) of the Rules is to be imposed. If minor penalty is to be imposed, the Authorised Officer can do so himself but if the accused is to be seen with a major penalty, the explanation, after supplying him a copy of inquiry report, is to be obtained from the accused and the same alongwith the inquiry report and recommendation of the Authorised Officer will be forwarded to the Authority who will take such action as he would deem proper. From the foregoing, it is quite clear that the Authority and the Authorised Officer are quite a separate wind distinct entities each having separate functions to perform and the functions of one cannot be performed by the other but in the present case, we see that both the functions of Authority and Authorised Officer have been performed by one and the same person namely; respondent No.

1. It is now well settled that where the law requires a thing to be done in a particular manner, the doing of that thing in any other manner would be illegal and would vitiate the proceedings.

10. Besides, the N.-W.F.P. Local Council Servants (Efficiency and Discipline) Rules, 1980 are almost a copy and based on the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 and in the case reported in PLD 1981 SC 176 wherein the inquiry was conducted under these Rules but on submission of the inquiry report, explanation of the accused was not called for, the removal order of the accused was set-aside by the Hon'ble Supreme Court of Pakistan. In the case-in-hand, no such explanation of the petitioner has been called for, as such, on this score as well, the impugned order cannot be maintained. In view of our foregoing findings on the second objection, there is no need to go into the merits of first objection.

11. Accordingly, on the acceptance of this writ petition, we set-aside the impugned order and direct the respondents that the petitioner shall be reinstated in Service immediately. However, since the writ petition succeeds on technical grounds, the respondents, if so desire, would not be debarred from taking fresh action against the petitioner. But, before doing so, the Provincial Government of N.-W.F.P. would be well advised to clearly define/notify the Authorised Officer, Authority and the Appellate/Review Authority of the petitioner and then to take action against him according to law and facts of the case. M.B.A./858/P Petition accepted.