SHAFIULLAH KHAN Versus THE GOVERNMENT OF WEST PAKISTAN THROUGH SECRETARY, AGRICULTURE, LAHORE AND 3 OTHERS

MUHAMMAD AFZAL CHEEMA, J .‑This writ petition filed by Shaft Ullah Khan petitioner under Article 98 of the Constitution is directed against the order of the Director of Agriculture, Peshawar, respondent No. 3, whereby he dismissed his appeal against the order of the Superintending Engineer, Agriculture Machinery, Peshawar, dated the 12th of October 1967, removing him from Government service as also directing the recovery of a sum of Rs. 270 from him on account of pecuniary loss suffered by the Government.

2. The relevant background of the case is that in the year 1964, Shafi Ullah Khan petitioner was posted as a Training Instructor at Tarnab Farm, Peshawar, and was also in‑charge of the Tractors' Unit in addition to his ordinary duties. On the 17th of March 1967 he was served with a charge‑sheet (Annexure A) alongwith a statement of allegations wherein the following two allegations were leveled against him:

Firstly on the 20th of April 1964, he had shown in the relevant register that Tractor No. T‑35 had plied for 11I hours of which entry regarding eight hours indicated performance of official work whereas nothing was recorded in respect of the remaining 3J hours. Furthermore, the nature of the official work performed was not specified either. The total loss allegedly suffered on this account at the rate of Rs. 15 per hour, worked out at Rs. 172.50. Exception was also taken to the entries in the Weekly Progress Report in his own hand which should have been done by the Operator.

Secondly, on the 7th of May 1964, Tractor No. T‑2 was shown to have been engaged in the work of Sh. Ata Mohammad, Drilling Supervisor, Tarnab Farm, for six hours as also for bringing Rie Machine which took half an hour. The signatures of Sh. Ata Mohammad in the relevant existing column were denied by him and furthermore the Rig Machine purported to have been transported was actually found to be working at site on the same day. This resulted in a pecuniary loss of Rs. 97.50 to the Government at the rate of Rs. 15 per hour, in addition to the forgery resorted to by the petitioner.

3. The petitioner was required to submit his explanation within ten days of the receipt of the charge‑sheet and to show cause why disciplinary action, including dismissal and recovery of the amount allegedly misappropriated, should not be taken against him. He was also desired to indicate if he wanted to be heard in person. On receipt of the above charge‑sheet, the petitioner submitted his reply, dated the 2nd of April 1967 (Annexure B). In answer to the first charge he stated therein that the progress report was signed by the petitioner with the consent of the then Agricultural Engineer in good faith; that the tractor was employed on interdepartmental work; that the unexplained duty of three hours pertained to the time consumed in journey for fetching the plough and that though the entry could not be made in the duty order owing to an omission the duplicate copy, however, contained this entry. As regards the second charge, the explanation offered was that the work was carried out by the tractor‑driver who should have obtained the signatures of the person concerned and as such was responsible for this omission. It was further stated that the Progress Report/Duty Order in question had been perused by the Agricul tural Engineer and countersigned by him. It was regretted that the matter had been raked up after three years. Personal hearing was also demanded. Having considered the reply, the Superintending Engineer, respondent No. 2, appointed Mr. Ghulam Safdar Khan, Agricultural Engineer, Peshawar, as the Inquiry Officer under rule 8 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 to look into the charges against the petitioner directing him to submit his report within a week's time. The Inquiry Officer vide his report (Annexure D) found that the charges leveled against the peti tioner stood established and that he was guilty of misconduct in terms of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. In the course of the inquiry, the petitioner was afforded an opportunity to make a verbal statement and answers to the incriminating questions are contained in Annexure D wherein he reiterated the stand taken by him earlier. He once again disowned the responsibility for filling of the Duty Orders and in regard to the first allegation specifically mentioned the name of Mr. Sher Mohammad Khan, Agricultural Engineer, Peshawar, in compliance with whose verbal orders he had allegedly employed Tractor No. T‑35 in the premises of the Tarnab Workshop. He denied the allegations of forgery. On the basis of this report, dated the 19th of August 1967 (Annexure D on the record), a regular notice was issued to the petitioner to show cause why he should not be removed from Government service and further why a sum of Rs. 270 on account of the pecuniary loss suffered by the Government should not be re covered from him. He was called upon to show cause within a week of the receipt of the notice. Cause was shown by the petitioner vide his reply Annexure F, wherein in regard to the allegations contained in the first charge it was reiterated that the job had been executed on the verbal orders of Mr. Sher Mohammad Khan, the then Agricultural Engineer, Peshawar. It was further requested that the latter was shortly expected to arrive and as such the matter be kept pending till his return. As regards the second allegation, the position taken up was that from the 7th of May 1964 to the 19th of May 1964 the petitioner was away from the headquarters as indicated by letters No. 2852 63, dated 5th May 1964, and No. 6648‑51/1‑40‑P. F. dated 22nd September 1964. Having found the explanation unsatisfactory vide his order dated the 12th of October 1967 (Annexure G) the Superintending Engineer removed the petitioner from service with a further direction for the recovery of a sum of Rs. 270 from him on account of the pecuniary loss suffered by the Govern ment. As stated earlier, he preferred an appeal before the Director of Agriculture, Peshawar, which was dismissed vide the impugned order (Annexure I) admittedly without affording an opportunity to the petitioner of being heard, which has given rise to the present writ petition.

4. Learned counsel for the petitioner raised the following contentions before us :‑

(1) That no evidence, whatever, was recorded during the so‑called oral inquiry which was clearly in violation of the mandatory provisions contained in rule 6 (iv) (c) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, and that no record was prepared of the proceedings which also amounted to an infringement of rule 6 (iv) (c) ibid. Reliance was placed in this regard on Mohammad Anwar v. Government of Pakistan P L D 1962 Lah. 443 and Mohammad Ihsan Khan v. Province of West Pakistan P L D 1963 Lah. 295.

(2) That the petitioner was not afforded an opportunity of leading evidence in defence which caused serious prejudice to him.

(3) That the so‑called denial of Mr. Ata Mohammad disowning his signatures took place behind the petitioner's back without affording him an opportunity of cross‑examining him.

(4) That neither the driver nor Mr. Sher Mohammad Khan, Agricultural Engineer, were examined by the Inquiry Officer.

(5) That the last impugned order was not a speeking order having been passed behind the back of the petitioner and without affording him an opportunity of being heard which besides being in flagrant violation of the statutory provisions contained in the relevant rules is also contrary to the principles of natural justice. Reliance was placed on Chief Commissioner, Karachi v. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 and Fazal Din v. Commissioner P L D 1968 Pesh. 30."

5. While frankly conceding the position that the Director of Agriculture should have issued a notice to the petitioner and heard him before passing the impugned order particularly when the latter was to be visited by the extreme penalty of removal from service, the learned Advocate‑General suggested that the last impugned order be set aside and the case be remanded to the Director of Agriculture for deciding it afresh after hearing the petitioner. It was next contended that an oral inquiry was clearly envisaged by rule 6 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 which obviously implied that the maintenance of a record was not an essential legal requirement and that there had been no violation of the principles of natural justice in the circumstances when the petitioner was twice afforded an opportunity to explain his position, prior to the institution of the inquiry in the first instance and then sub sequent to its completion. It was next argued that since the peti tioner never applied for summoning of defence witnesses, the Inquiry Officer or for that matter the punishing authority was under no obligation to do so suo motu.

6. The first point that falls for determination is whether the inquiry was conducted in accordance with the relevant rules or, in the alternative there had been some infringement of the rules having a statutory force. Under the rules, the mode or procedure or inquiry is to be determined by the penalty with which the Government servant is to be visited. Rule 3 deals with different grounds of penalty of which ground (b) deals with misconduct with which we are concerned in the instant case. Rule 4(1)(c) refers to the recovery of any pecuniary loss caused to Government by negligence or breach of orders on the part of a Government servant, and the relevant proce dure is dealt with under rules 6. Rule 4(1)(f) refers to removal from service. Under sub‑rule (2) of rule 4, the above‑mentioned two penalties have been classified as major penalties whose mode or procedure of inquiry is dealt with in rule 6(iv)(a) to (e). Sub‑rule (2) ibid dispenses with the application of the above procedure where an accused is dismissed or removed from service or reduced in rank on ground of conduct which led to his conviction on a criminal charge or where the competent authority for reasons to be recorded is satisfied that it is not reasonably practicable to give the accused an opportunity of showing cause. The relevant provisions of rule 6(iv)(a) to (e) are reproduced below: --‑

"(a) In cases calling for a major penalty, the authority hav ing power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it is based and of any other circum stances which the authority proposes to take into consideration when passing orders on the case.

(b) The authority shall require the accused, within a reason able time, which shall not be less than seven days nor more than fourteen days from the day the charge has been com municated to him, to put in a written defence, stating at the same time whether he desires to be heard in person.

(c) If the accused so desires, or if the authority so directs, an oral inquiry shill be made by an Inquiry Officer to be appointed under rule 8 at which oral evidence shall be heard as to such of the allegations as are not admitted, and the accused shall be entitled to cross‑examine the witnesses against him, to give evidence in person and to have such witnesses called for the defence as he may wish ; provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a particular witness or to summon or admit particular evidence.

(d) No person who is called upon to produce his defence as to charges which form the subject‑matter of an inquiry against him shall be allowed to engage counsel Provided that if the charge or charges are likely to result in the dismissal of such person he may, with the sanction of the Enquiring Officer, be represented by counsel Provided further that if in an enquiry, counsel is engaged on behalf of any Department of Government, the person against whom the charges are being inquired into, shall be entitled to engage counsel.

(e) The proceedings shall contain a sufficient record of the evidence led at the Enquiry and the Inquiry Officer's report of his findings and grounds thereof."

Rule 8 deals with the appointment and procedure of Inquiry Officer and reads thus :‑

"(1) Where a Government servant is proceeded against under clause (a), or clause (b) or clause (c) of rule 3, and the authority decides that the allegations against him, if proved, call for a major penalty, the authority shall appoint an Officer, senior in rank to the person proceeded against to be Inquiry Officer and to conduct the proceedings against him.

(2) The Inquiry Officer shall hear the case from day to day, and no adjournment shall be given except for reasons to be recorded in writing. Every adjournment, with reasons therefore, shall be reported forthwith to the authority. No adjournment ordinarily shall be given for more than a week.

(3) If the Inquiry Officer is satisfied that the Government servant proceeded against is hampering or attempting to hamper the progress of the inquiry he shall administer warning to him, and if thereafter he is satisfied that the accused is acting in disregard of the warning he shall record a finding to that effect, and proceed to complete the inquiry in such manner as he thinks best fitted to do substantial justice.

(4) The Inquiry Officer shall, within ten days of the conclu sion of the proceedings or such longer period as may be allowed by the authority, submit his findings and the grounds thereof to the authority."

Since the petitioner was proceeded against under clause (b) of rule 3 and the authority concerned had decided that the allega tions against him, if proved, called for a major penalty, the relevant rules governing the mode or conduct of inquiry were rules 6 and 8. In the instant case, a charge was framed against the petitioner by the competent authority and communicated to him with a statement of the allegations forming its basis. As envisaged by rule 6(vi)(a) he was required to put in his written defence and also to indicate his option to be heard in person in compliance with rule 6 (iv) (b). An oral inquiry, as envisaged by rule 6(iv) (c) could be resorted to (f) if the accused desired or (ii) if the authority so directed. Although the expression "oral inquiry" has not been defined in the rules yet it would presum ably be detractive and derogatory from a normal departmental inquiry which envisages the preparation of a detailed record of the entire proceedings from start to finish. Nevertheless, it does not completely dispense with the maintenance of a record as clearly envisaged by rule; (iv) (e) which refers to maintenance of "sufficient record of the evidence led at the inquiry. Further support is lent to this view by the provision contained in rule 6(iv) (c) relating to oral evidence to be led in respect of un-admitted allegations and the right of the accused to cross‑1 examine the witnesses. It would not be out of place to refer in this context a D. B. authority reported as Mian Muhammad Hayat S. E. v. Government of West Pakistan and others (P L D 1964 Lah. 264), where in their Lordships bad an occasion to examine the contention whether rules 6 and 8 envisaged two different inquiries at different stages or whether only one inquiry was contemplated by them. Their Lordships observed as follows: --‑

"Reading rules 6 and 8 together, no doubt is left in our mind that there is only one formal inquiry contemplated by the rules, and it is fallacious to argue that these rules contemplate two successive inquiries before the same forum. It is immaterial, therefore, whether this inquiry is described as one under rule 6 (iv) (c) or rule 8 of the Rules."

7. It appears to us that in the instant case both 'the competent authority appointing the Inquiry Officer as well as the latter himself were completely misled by the expression "oral inquiry" used in the above rule having thus completely by‑passed the other relevant provisions. Admittedly, no witness was examined in the presence of the petitioner in support of the allegations so as to afford him an opportunity of cross -examining them. There is thus no escape from the position that the proceedings were conducted in utter violation of the provisions contained in the rules which recognised the entitlement of the accused to cross‑examination of witnesses. Again, it cannot be disputed that no record whatever was prepared of the inquiry proceedings particularly of the evidence led at the inquiry as envisaged by rule 6(iv) (e) referred to above. As a result of the above discussion, we have no hesitation in saying that the inquiry, was not conducted in accordance with the rules which have a statutory force, that no witnesses were examined in the presence of the petitioner in support of the allegations against him where by he was denied the right of cross‑examination and finally no record of the evidence was maintained, and on that score alone the inquiry proceedings culminating in the impugned order should be quashed. There is, however, yet another aspect of the matter which also leads to the same conclusion. A perusal of the statements of defence submitted by the petitioner in the first instance and in reply to the show‑cause notice subsequently, clearly shows that in answer to the first allegation chronologically speaking which was mentioned as the second charge in the charge‑sheet the petitioner had raised a specific plea placing the responsibility squarely on the shoulders of Mr. Sher Mohammad Khan, Agricultural Engineer. In his reply Annexure J, he had specifically requested the Superintending Engineer that the true position may be verified from Mr. Sher Mohammad Khan, who was not available in the first instance and had come back from his training abroad. Likewise, no efforts were made either to get the disputed entries, namely, the alleged signatures of the petitioner and those of Mr. Ata Mohammad, examined by an Handwriting Expert so as to prove the allegations of forgery against the petitioner. On the contrary, in paragraph 4 of the written statement submitted on behalf of the respondents, the allegations of forgery against the petitioner were merely repeated in the following words:

"The forged entry in question was clearly in the Hand writing of the petitioner therefore sending the signature of Ata Mohammad to the Handwriting Expert was not considered necessary."

No doubt it was the petitioner's responsibility to apply for summoning the witnesses he wanted to examine in defence which he obviously did not do yet this omission on his part does not absolve the Department of its obligation to prove the allegations to the satisfaction of the legal requirements, Lastly, coming to the impugned order itself it may be observed that earlier in the un-amended rule 14, dealing with appeals, there was no specific provision in regard to the petitioner's right of being heard before the appellate authority. Even so, in the absence of a provision to the contrary, such a right could be read into the rule on principles of natural justice as held by their Lordships of the Supreme Court in University of Dacca v. Zakir Ahmad (P L D 1965 S C 90). Same view was held earlier in Fazal Din etc. v. Commissioner, etc. (P L D 1968 Pesh.30), a Full Bench authority in which the judgment was delivered by our learned brother Sardar Muhammad Iqbal, J. Reliance was placed on Rex v. Bath Compensation Authority ((1925) 1 K B 685) and Rex v. Licestor Justices ((1927) 1 K B 557). In this regard, in this latter authority, it was observed by their Lordships of the Full Bench as follows:

"The principle laid down by this decision is that the principles of natural justice are applicable unless it is clearly provided otherwise by a statutory provision."

8. The rule itself was, however, subsequently amended on the 10th of April 1964, and now reads as follows :‑

"14.‑(1) A person on whom a penalty is imposed shall have such right of appeal as may be preserved in the service rules applicable to him Provided that where the penalty is imposed by order of the Governor, there shall be no appeal but the person on whom the penalty is imposed may apply for a review of the order.

(2) Notwithstanding anything contained in the service rule, applicable to the Government servant concerned, in all cases in which it is not necessary, to consult the West Pakistan Public Service Commission, the appellate authority shall afford to the appellant at the final stage an opportunity of being heard in person."

As stated at the outset, learned Additional Advocate‑General frankly conceded that on that score alone the impugned order could not be sustained and as such was of no legal effect.

9. In the above conclusions arrived at by us we are also fortified by authorities.

In Muhammad Mohsin Siddiqi v. Government of West Pakistan (P L D 1964 S C 64), which is a well‑known authority on the point, the facts were that the petitioner Muhammad Mohsin was dismissed for insolence to the Sessions Judge under whom he was working. The learned Sessions Judge framed charge, held an inquiry and ultimately dismissed the petitioner. The Administration Judge of the High Court also dismissed the appeal and a second appeal taken to the Government met the same fate. Mr. Mohsin Siddiqi then filed a writ petition in the High Court which was also dis missed, but their Lordships of the Supreme Court quashed the entire proceedings with the following observations: --‑

"The whole proceeding in a departmental inquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, Judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in then as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the inquiry and the report thereon in other hands and in such a case the officer who is the offended com plainant must give his evidence in support of the complaint before such officer."

This authority was followed by a Division Bench of this Court in Mrs. Saeeda Tasnim Ara v. Province of West Pakistan and others (P L D 1967 Lah.1112).

10. The upshot of the discussion, therefore, is that the inquiry proceedings as also the impugned order are wholly unsustainable being in clear violation of the statutory provisions contained in the relevant rules. The inquiry proceedings, which form the basis of the impugned order, are therefore, quashed with the result that the order also automatically collapses and becomes non‑existent. The writ petition is accordingly allowed with no order as to costs.

S. Q.

Petition accepted.