SOHRAB KHAN KALWAR Versus SECRETARY TO THE GOVERNMENT OF SINDH,DEPARTMENT OF FOOD

1. ANWARt1L HAQ, C. J.-This appeal, by the leave of the Court, is directed against an order made by the Sind Service Tribunal on the 2nd of July 1977, by which an order made by the Provincial Government of Sind for the removal of the appellant from service as Rationing Controller, Karachi, has been upheld.

2. The appellant was appointed in the Food Department on the 1st of May, 1971, and was working as Rationing Controller in Karachi when he was suspended on the 12th of July, 1975, on the allegations, inter alia, that he was receiving .illegal gratification from certain owners of Flour Mills. A preliminary inquiry held by the Director of Food, however, showed that the allegations against him were not proved, and, accordingly, the matter was submitted to the Food Minister, who remarked that it was strange that the owners of the Flour Mills were not coming forward to give evidence while they had complained before him that the appellant was demanding add receiving illegal gratification from them on a monthly basis. The Minister therefore directed that the evidence of the Members of the Flour Mills. Association be recorded in his presence. It appears that in the statements made by the Members of the Flour Mills Association in the absence of the appellant, certain incriminating facts were put forward, on the basis of which a regular charge-sheet was framed against the appellant on the 23rd of July. 1975, and the Director of Food was appointed as tin Inquiry Officer under rule 5(2) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. This Officer submitted his report on the 9th of August, 1975, stating that the Members of the Flour Mills Association were not prepared to give evidence in the open. In the circumstances, the Inquiry Officer suggested that the appellant be proceeded against under the alternative procedure envisaged by rule 5(3), namely, without any formal inquiry.

3. This proposal was accepted by the Authorised Officer and a show-cause notice was thereupon issued to the appellant on the 19th of August, 1975, inquiring, inter alia, whether the appellant would like to be heard in person. The appellant submitted his reply to the charge-sheet, denying the allegations, and claiming a personal hearing. The reply was submitted on the 31st of August, 1975, and on the 4th of September, 1975, an order was made by the Provincial Government removing the appellant from service.

4. The appellant filed a representation against this order, but the same was rejected by the Chief Minister on the 1st November, 1975. As already stated, his appeal was also dismissed by the Service Tribunal.

5. It is contended by Mr. Muhammad Ali Saeed, the learned counsel for the appellant, that the entire proceedings against the appellant were vitiated by males fides, as the Food Minister at the relevant time was determined to throw out the appellant from service at any cost, even though the so-called complainants, namely, the Members of the Flour .Mills Association had refused to come forward and depose against the appellant at the formal inquiry, conducted by the Director Food. He next submits that, in any case, when the Inquiry Officer had reported that there was no evidence in support of the charges framed against the appellant, there could have been no question of proceeding against the appellant under the alternative procedure envisaged in rule 5(3). The learned counsel next contends that once the Authorised Officer had exercised the option of holding a formal inquiry against the appellant, he had no power or authority to resort to the alternative procedure of dispensing with the inquiry ; that, in any case, the inquiry could have been dispensed with only if the Authorised Officer had recorded his opinion that it is not necessary to hold an inquiry in this case, an opinion, which he could not have recorded as he had already decided that a formal inquiry was necessary to establish the charges framed against the appellant. Finally, the learned counsel contends that in the show-cause notice served upon the appellant on the 19th of August, 1975, in terms of rule 5(3) of the aforesaid rules, the appellant was clearly asked whether he wanted to be heard in person, to which he had replied in the affirmative, but without recording any reason whatsoever this opportunity was denied to the appellant by the authorised officer, with the result that the appellant did not have a chance to show that the allegations against him were false and malicious.

6. We find that there is no material on the record to come to a finding that the Food Minister at the relevant time in the Sind Government was actuated by any malice against the appellant. This allegation has been rightly negatived by the Service Tribunal, and it is significant that no such allegation . was made by the appellant in the representation submitted by him to.Ehe Provincial Government against the order of his removal from 'service. There is thus no merit in.this particular plea.

7. As to the contention that once tile Authorised Officer had decided under sub-rule (2) of rule 5 of the. Sind Civil Servants (Efficiency and Discipline) Rules, 1973, that this was a fit case for holding a formal inquiry into the charges framed against the appellant, he could not recall that order and instead adopt the alternative procedure envisaged by sub-rule (3) of th same rule, we find that it is an established principle of law, as observed b this Court in Shahbaz v. The Crown (PLD1956FC46) that Government must, in the natur of things, possess power to recall its orders, apart from the provision contained in this behalf in the General Clauses Act, namely, section 21 o the General Clauses Act (X of 1897) or section 20 of the West Pakistan General Clauses Act of 1956. In fact, existence of such, power is necessary in the case of all authorities empowered to pass orders under statutes o regulations. It was further observed in that case that locus poenitentiae, i.e. power of receding till a dicisive step is taken, is left with the Government only if the order has not been carried into effect. Till then, there is no reason to restrict the power to modify or cancel such an order. It appears. to us, therefore, that, in appropriate circumstances, the Authorised Officer, must retain the power to recall an order made under sub-rule (2) of rule 5, and instead adopt the alternative procedure envisaged by sub-rule (3) thereof, namely, to dispense with a formal inquiry, and to proceed with the matte simply by serving a charge-sheet upon the accused civil servant, and giving him an opportunity to show cause against the .proposed action. It is, of course, necessary that the record must show that there were circumstance present in the case, which compelled the Authorised Officer to recall his earlie order directing the holding of a formal inquiry ; and he must further fulfil all the requirements contemplated by sub-rule (3).

8. Now, in the present case, the Inquiry Officer had reported that he could not proceed with the inquiry as the Members of the Flour Mills Association had refused to give evidence in public, and had insisted that they would make their statements only in camera, meaning presumably that they would depose only in the absence of the appellant. As such a procedure was no permissible under rule 6 of the rules, therefore, the holding of the inquiry obviously stood frustrated, and the Authorized Officer was within his power, to reconsider the entire situation and to wall the earlier order he had ma in terms of sub-rule (2).

9. In these circumstances, the Authorised Officer was apparently justified in coming to the conclusion that it was not necessary to have an inquiry conducted through an Inquiry Officer, and to proceed in terms of sub-rule (3). This rule contemplates that the Authorised Officer shall inform the accused civil servant in writing of the action proposed to be taken in regard to him, and the grounds of action ; and to give him a reasonable opportunity of showing cause against that action. We have already stated that in the charge-sheet served on the appellant under sub-rule (3) of rule 5 on the 19th of August, 1975, the appellant was clearly required to state whether h wanted to be heard in person, and in his reply he had answered this question in the affirmative. Irrespective, therefore, of the question whether a persona hearing is a mandatory requirement under sub-rule (3), it is clear that in -the present case the option given to the appellant in the matter of personal hearing could not be denied to him without sufficient cause. As already stated, there is no indication on the record that the Authorised Officer was conscious of his obligation arising under the show-cause notice served b him on the appellant. As a result, the appellant was clearly deprived of the opportunity to show that the allegations against him were without foundation.

10. On this view of the matter we consider that the order of removal from service passed by the Provincial Government against the appellant stands vitiated. We, accordingly, declare this order to be without lawful authority and of no legal effect.

11. The proceedings against the appellant are remitted. to the Authorised Officer for proceeding afresh under sub-rule (3) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, for giving a personal hearing to the appellant in connection with the charges framed against him, and then submitting his case to the appropriate authority for final orders in tht light of the submissions made by the appellant.

12. The appeal is accepted to this .extent, and the parties are left to bea their own costs. s. A. H. ? Appeal accepted Case remanded.