1996 SCMR 201 (PLP)

Rules 5 and 6 of the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. "

5. Inquiry ,procedure.‑‑‑The following procedure shall be observed when a Government servant is proceeded against under these rules:‑‑ (1) In case where a Government 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 provided that any continuation of such leave or suspension shall require approval of the authority after every three months. (2) The authorised Officer shall decide whether in the light of facts of the case or the interests of justice an enquiry should be conducted through an Enquiry, Officer or Enquiry Committee. If he‑ so decides, the procedure indicated in rule 6 shall apply. (3) if the authorised Officer decides that it is not necessary to hove an enquiry conducted through an Enquiry Officer or Enquiry Committee, he shall‑‑ (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. (4) On receipt of the report of the Enquiry Officer or Enquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Enquiry Officer or Enquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper". "

6. Procedure to be observed by the Enquiry Officer and Enquiry Committee.‑41) Where an Enquiry Officer or Enquiry Committee is appointed, the authorised Officer shall‑ (a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration; (b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person. (2) The Enquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross examine the witnesses against him. (3) The Enquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons therefor shall be reported forthwith to the authorised Officer. Normally no adjournment shall be for more than a week. (4) Where the Enquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the enquiry, he or it shall administer a warning; and if thereafter he or it is satisfied that the accused is acting in disregard of the warning he or it shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice. (5) The Enquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised Officer, submit his or its findings and the grounds thereof to the authorised officer Standing Order 15 (4) of West Pakistan Industrial and Commercial Employment Standing Orders) Ordinance, 1968: "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of .the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of. dismissal and, the employer shall institute independent inquires before dealing with charges against a workman: Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."

9. A comparison of the above‑quoted provisions of the aforesaid Rules and Standing Order 15 (4) indicates that the provisions of Rule 39 of the Rules and Rules 5 and 6 of the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to as Rule 5 or 6 as the case may be) are more or less couched in the same language except that there are minor variations .and absence of provision in Rule 39 similar to that of sub‑rule (3) of 13 Rule

6. It may be pointed out that sub‑rule (1) of Rule 39 and clause (a) of sub‑rule (1) of Rule 6 envisage the issuance of the charge‑sheet to the accused employee. Above clause (a) . of sub‑rule (1) of Rule 6 also contemplates that the charge should be; accompanied with the statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. The above portion is missing in sub‑rule (1) of Rule 39 of the Rules. It may further be pointed out that clause (a) of sub‑rule 0) of Rule to and clause (b) of sub‑rule (1) of Rule 6 are identical in as much as both provide that the accused employee would be required to put in written statement and to state the same time whether he desired to be heard in person. It is envisaged that above reasonable time shall not be less than seven days or more than fourteen days from the day the charge‑sheet has been communicated to him. It may further be observed that clause (b) of sub‑rule (2) of Rule 39 is pari materia with sub‑rule (2) of Rule 6 which empowers the Enquiry Officer or the Enquiry Committee, as the case may be, to enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused employee as may be considered necessary. It also confers a right on the accused employee to cross‑examine the witnesses examined by the Enquiry Officer in support of the charge. It may be mentioned that clause (c) of sub‑rule (2) of Rule 39 is identical with sub‑rule (4) of Rule 6 as both empower the Enquiry Officer or the Committee, as the case may be, if he or it is satisfied that the accused employee is hampering or attempting to hamper the progress of the enquiry, he or it shall administer a warning, and if thereafter he or it is satisfied that the accused employee is acting in disregard of the warning, he or it shall record a finding to that effect and to proceed to complete the enquiry in such manner as he or it thinks best suited in the circumstances to do substantial justice. The words "suited to do substantial justice" are missing in clause (c) of sub‑rule (2) of Rule 39 as the words employed therein are "he or it thinks best in the circumstances". It may be observed that sub‑rule (3) of Rule 39 and sub‑rule (5) of Rule 6 both provide for the submission of the report by the Enquiry Officer or the Enquiry Committee but the wording of the above two provisions are substantially different inasmuch as in sub‑rule (3) of Rule 39, it has been provided that the report together with the employee's statement shall be laid before the authority ordering the enquiry which shall consider the matter and award such punishment as it deems proper, if it is competent Authority itself under Rule 37 of the Rules, otherwise lay the said report before the‑competent authority with its recommendations and that the decision of the competent Authority shall be conveyed in writing to the employee concerned. It may be pointed out that. sub‑rule (4) of Rule 5 more or less identical with certain variations to above sub‑rule (3) of Rule 39, as the former envisages that if the authorised Officer upon receipt of the enquiry report wishes to impose a minor penalty, he can do so himself, but in case he wants to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused official, the explanation of the accused, the findings of the Enquiry Officer or Enquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. It may further be pointed out that sub‑rule (5) of Rule 6 prescribes the period of 10 days or such longer period as may be authorised by the authorized officer from the date of conclusion of the proceedings for submission of the report by the Enquiry Officer or the Enquiry Committee, but there is no suchtime limit provided in Rule

39. It may also be stated that proviso to sub‑rule (3) of Rule 39 is missing in Rule 6 but in pith and substance we find the same in sub‑rule (3) of Rule 5 with certain additions and variations. Adverting to clause (4) of Standing Order 15, it may be pointed out that the wording of the above clause is different from the aforesaid two provisions of the Rules discussed earlier. It envisages that no order of dismissal shall be made unless: (i) written notice of alleged misconduct is given to the workman within one month from the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer; (ii) the workman is given an opportunity to explain the charges against him; (iii) the employer shall institute independent enquiries before dealing with the charges against a workman; and (iv) before passing dismissal order, approval of the employer (which will include the Manager as per section 2 (c) of the I.R.O.) shall be obtained. ;

10. We may observe that the paramount object of framing of the above rules and the enactment of clause (4) of Standing Order 15 seems to be to provide a fair and reasonable opportunity to an accused employee to defend himself against the charge brought against him by his employer in order to ensure adherence of the principles of natural justice. This will implicitly include the right to have a copy of the charge‑sheets with all material particulars relating to allegations on the basis of which charges are founded, to have reasonable time to submit a reply to the charge‑sheet, to participate in an enquiry proceeding, to examine the documentary evidence produced in support of the charges, to cross‑examine the witness, produced by the employer and to produce oral and/or documentary evidence in rebuttal to the evidence produced in support of the charges. If an accused employee is provided opportunity as above, it will be difficult for him to urge that such an enquiry was not fair or that it was violative of the principles of natural justice. However, it may be pointed out that if an Enquiry Officer or an Enquiry Committee relies on the facts which were not part 'of the statement of allegations in support of the charge or based his or its finding on the material which was not brought to the notice of the accused employee,' any adverse order pursuant to such a finding shall not be sustainable in law. The question, whether an accused employee is entitled to a copy of the enquiry report in order to enable him to submit his comments/explanation to the .same, depends on the language employed in the relevant provision of the statute or the rules involved and also on the factum, whether omission to supply the same has caused him material prejudice.

11. It will not be out of context at this juncture to point out that the learned Punjab Labour Appellate Tribunal on the basis of the language used in sub‑rule (3) of Rule 39, namely, that the report will be accompanied with the statement of the employer, has concluded that the statement referred to therein is statement in reply to enquiry report after the receipt of the same. The above view has been concurred with by the learned Judge in Chambers. In the case of Syed Mir Muhammad (Supra) this Court while interpreting sub‑rule (4) of Rule 5 (i.e. of the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, which is in pith and substance more or less same as above sub‑rule (3) of Rule 39 as pointed out hereinabove in para.9. has taken the same view which has found favour in the instant case by the two Courts below. It may be instructive to reproduce the relevant portion of the judgment which reads as under:‑‑ "When the Enquiry Officer or the Committee has submitted its report to the authorised Officer, the matter is governed by sub‑rule (4) of rule 5, which is, in fact, a composite rule, dealing with both the situations, namely, where an inquiry is held or where it is dispensed with. This sub‑rule is in the. following terms:‑ `On receipt of the report of the Enquiry Officer or Enquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Enquiry Officer or Enquiry 'Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.' It will be seen that in a case where it is proposed to impose a major penalty as a result of a formal inquiry, the Authority is required before passing, orders to take into consideration the following: - (a) the charge and statements of allegations served on the accused; (b) the explanation of the accused; (c) the finding of the Enquiry Officer or Enquiry Committee; and (d) the recommendations of the authorised Officer regarding the penalty to be imposed. The explanation of the accused referred to in sub‑rule (4) of rule 5 cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub‑rule (1) of rule 6; as at that time. all the circumstances and evidence to be marshalled against him during the course of the inquiry are not within his knowledge; and he would acquire knowledge thereof only when the evidence has been led and the Enquiry Officer or Committee has formulated its findings. A proper explanation of the accused Officer in such a case can only be. furnished if he is supplied a copy of the Enquiry Report so as to offer his comments in regard to the findings recorded therein, and the action proposed to be taken against him on their basis." It will not be out of context to. point out that the Bench which rendered the above judgment comprised Anwarul Haq, CJ. Muhammad Haleem and Nasim Hasan Shah, JJ. (as they then were). The ratio decidendi of the above judgment is attracted to the case in hand. In this view of the matter, the view found favour with the Courts below seems. to be in consonance with the above judgment rendered by this Court in the case of Syed Mir Muhammad (Supra) and, therefore, does not call for interference. The omission to supply a copy of the enquiry report to respondent No.l has caused him material prejudice. The show‑cause notice and the charge‑sheet were sent to respondent No.l at Saudi Arabia. There is nothing on record to indicate that the same were received by him. He reported for duty on 10‑12‑1984 before the finalisation of the enquiry. He was not taken on duty. If he would have received a copy of the enquiry report, he would have a chance to submit his explanation at least once as the enquiry proceedings were ex parte. If an accused employee is entitled to a copy of the enquiry report under the rules, he does not forfeit his above right simplicitor for the reason that the enquiry proceedings were ex parte. The employer should make efforts to serve a copy of the enquiry report on the accused employee at his last address available on the employer's record. Once such efforts are made, non‑service of the same without any fault on the part of the employer will not render the, enquiry proceedings defective. ` The judgment in the case of A. Ghani Sayeed v. National Bank 'of Pakistan (Supra) does not seem to have correctly interpreted Rule 39 (3) of the Rules.

12. We may now revert to the other submissions made by the learned counsel for respondent No.l. His submission that since the dismissal order dated 10‑2‑1985 purported to be retrospective in effect i.e. with effect from 12‑5‑1983, the same was not sustainable, seems to have, force. He has referred to the case of Noor Muhammad v. The Member Election Commission, Punjab and others (1985 SCMR 1178) and the case of Mian Munawar‑ud‑Din v. The Federation of Pakistan through Secretary, Ministry of Federal Communication, Islamabad (PLD 1979 Lahore 699). In the first case this Court, while declining leave to appeal in an election matter which involved disqualification of the candidate, held that the order purporting to give retrospective effect to order of removal from service was patently unlawful and void and could not be given effect to. Reliance was placed on the case of Noor Muhammad v. Muhammad Abdullah and others (1984 SCMR 1578), the case of Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others (PLD 1964 Dacca 647) and the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236). Whereas in the above second case a learned Single Judge of the Lahore High Court, while dealing with a service matter, held that, the executive orders cannot be applied.. or enforced retrospectively.

13. Kh. Muhammad Farooq, learned A.S.C. appearing for the appellants, has candidly brought to our notice the following judgments:‑‑ (i) The Province of Punjab v. Khan Khaliq Dad Khan (PLD 1953 Lahore 295); (ii) Noor Muhammad v. The Member Election Commission, Punjab and others 1985 SCMR 1178; and (iii) Ali Khan v. Director of Schools and 2 others (1983 PLC (C.S.) 63). In the above cases also it has been held that the order of dismissal cannot operate retrospectively not the order of suspension. If this would have been the sole defect in the impugned order of dismissal, the Courts below or this Court could have modified the order by providing that the same would take effect from the date of service on respondent No.l. However, since the above impugned order has not been maintained on the above discussed ground, it is not necessary to modify the same.

13. As regards Mr. M. Asghar Malik, learned A.S.C. for respondent No.l's contention that since Enquiry Officer was not examined by the appellants, the enquiry report and consequential order of dismissal pursuant thereof were not sustainable. It may be observed that to reinforce the above submission he has referred to the case of Messrs Souvenir Tobacco Co. Ltd. v. Sindh Labour Court No.2 and others (1987 P.L.C. 605), in which a Division Bench of the High Court of Sindh (though shown as S.B. case in the above report) maintained the judgments of the Courts below and in which inter alia it was held that the omission to examine the Enquiry Officer in support of his enquiry report and to rebut allegations of partiality and misconduct was fatal. We may state that as a general proposition of law, it cannot be held that in every case in which Enquiry Officer is not examined in support of the enquiry report, the same would be fatal to the maintainability of the order passed pursuant to such an enquiry report. It will depend on the facts of each case. If there are serious allegations against the Enquiry Officer as to his'impartiali‑ty1E and in support of such allegations, the accused employee has brought some reliable material before the first Court, it becomes incumbent on the empl6yer to produce the Enquiry Officer in order to rebut the evidence brought on record as. to the partiality of the Enquiry Officer. In the instant case 'nothing has been brought on record to indicate even remotely that the Enquiry Officer in question was, in any way, prejudiced or partisan. In this view of the matter, it was not necessary to have examined the Enquiry Officer. '

14. Referring to Mr. M. Asghar Malik's submission that since this Court in an unreported judgment dated 15‑1‑1992 in the case of National Bank of Pakistan through General Attorney (Zonal Head) v. Punjab Labour Court No. 8 Multan and 2 others (Civil Appeal No. 304 of 1990)‑ has held that the National Bank Rules of 1980 had no statutory force for want of‑approval of the Federal Government, the action under the same' stood vitiated. "If may be mentioned that same view was taken by a Division 13ench,;of the High Court of Sindh in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal and 2 others (1990 PLC 593). Reference may also be made to .the judgment of this Court in the case of National Bank of Pakistan and another v. Punjab Labour Appellate. Tribunal and 2 others (1992 PLC. 415), in which it was held that 1980 Rules had no statutory force for want of prior approval of the Federal Government. This point was not taken by respondent No. 1 before the Courts below. It is not known as to whether after the above decision of this Court the appellants had obtained sanction/approval of the Rules from the Federal Government. We would, therefore, not like to comment upon the above contention.

15. The upshot of the above discussion is that the appeal is dismissed, but there will be no order as to costs. KBA./R‑6/S Appeal dismissed.