BASHARAT ALI Versus DIRECTOR, EXCISE AND TAXATION, LAHORE

AJMAL MIAN, ACTG. C.J. ‑‑‑This is an appeal with the leave of this Court against the judgment dated 31‑12‑1990 passed by the Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, in Appeal No.313/913 of 1988, filed by the appellant challenging his dismissal from service in the Excise and Taxation Department on the ground of misconduct arising out of temporary embezzlement of the amount of Rs.9,990 allegedly handed over to him for depositing in the Government Treasury by one Shahid Mahboob Malik, allowing the same partly by substituting the order of dismissal by removal from service.

2. The brief facts are that the appellant was serving as a Junior Clerk in the Excise and Taxation Department, Faridkot Road Office, Lahore. The appellant was issued a show‑cause notice dated 9‑6‑1987, in which it was alleged that he received Rs.9,990 from aforesaid Shahid Mehboob Malik for depositing them in Government Treasury but misappropriated the same and produced a forged receipt. It was further alleged that upon discovery of the aforesaid forgery, the appellant arranged the said amount and deposited the same in the Government Treasury. The aforementioned show‑cause notice was contested by the appellant inasmuch as he filed a reply dated 24‑6‑1987. However, the department, without holding any regular enquiry and adopting a summary procedure, dismissed the appellant from service, Since he failed to get any redress from the department, he filed the aforesaid appeal before the Tribunal, which was disposed of in the above terms.

3. The appellant, being aggrieved by the aforestated‑ judgment of the Tribunal, filed Civil Petition for Leave to Appeal No.563/L of 1991. It may be observed that in the impugned judgment it was stated that the appellant's counsel had conceded the factum of temporary embezzlement of the above amount before the Tribunal. Alongwith the aforesaid petition, an affidavit of the Advocate concerned was filed, averring therein that he had not in fact conceded the above fact. This Court, instead of hearing the aforementioned petition for leave to appeal, referred the matter to the Tribunal by an order dated 12‑2‑1992 with the direction to the Tribunal to clarify the above controversy. In response to the above order, the Tribunal submitted its order dated 21‑2‑1994 to this Court (at pages 100 and 101 of the paper book) inter alia stating therein as under:‑‑

"2. While arguing before this Tribunal learned counsel for the appellant explained that what he had said was only an argument, in the alternative that if the Tribunal came to the conclusion that there was any embezzlement, it was temporary and that the penalty of dismissal from service was too harsh.

3. The learned D.A. in reply did not raise any objections to the above interpretation of the order dated 31‑12‑1990.

4. On what has been stated before the Tribunal today, it becomes clear that the learned counsel for the appellant made no concession. However, it was his argument in the alternative that if we believed that there was any embezzlement, the same was temporary and that it did not call for the most harsh penalty of dismissal from service.

5. The above finding has reported to the Supreme Court as per their direction."

4. Leave to appeal was granted to consider the question, whether in the present case the department was justified on the basis of the material available only record to dispense with regular enquiry.

5. In support of the above appeal Mr. Hamid Khan, learned Advocate Supreme Court for the appellant, has vehemently contended that since the allegation in the charge‑sheet against the appellant was a serious charge of embezzlement of public money, which was emphatically denied by the appellant, the respondent department could not have resorted to sub‑rule (3) of Rule 6 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, hereinafter referred to as the Rules, and dispensed with the regular enquiry.

On the other hand, Mr. Ehsan Sabri, learned Assistant Advocate- General, Punjab, has urged that the dismissal order, which was substituted by the Tribunal by removal order was in accordance with law.

6. It may be observed that the appellant was served with a show‑cause notice dated 9‑6‑1987, wherein he was charged as under:‑‑

"That a sum of Rs.9,990 was received by you from Mr. Shahid Mahboob Malik husband. of owner of P.U. No.SW‑101R‑66 in cash, in spite of the fact you were not authorised to do so under the provisions of Punjab Urban Immovable Property Tax Act, 1968. You assured Mr. Shahid Mahboob Malik that you will deposit the amount in Government Treasury and delivered him the requisite bank receipt. According to the statement of Mr. Shahid Mahboob Malik, bank receipt showing payment of Rs.9,990 on 13‑5‑1987 in State Bank of Pakistan, Lahore was delivered to him. A photostat copy of this bank receipt was also given by you to Excise and Taxation Inspector incharge Mr. Hamid Masood for record. Later on, the scrutiny of record revealed that this bank receipt is forged one. Subsequently, you arranged the said amount and deposited Rs.9,990 in Government Treasury vide Bank Receipt No.23 dated 1‑6‑1987. Thus, in addition to the deliberate attempt of embezzlement of Government Revenue, your conduct in the matter is prejudicial to good order and service discipline. This tantamounts to misconduct on your part within the meaning of rules 2(i)(d) and 3(b) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. "

7. In response to the above show‑cause notice, the appellant submitted his reply alongwith an affidavit of Mr. Shahid Mahboob Malik, the relevant portion of which reads as under:‑‑

"At the very outset I deny the charge in toto. The factual position is that neither I received a sum of Rs.9,990 from the Property Owner namely Mr. Shahid Mahboob Malik, husband of the owner of property in question, nor I delivered him any fake/bogus or fictitious treasury receipt of the sum as alleged in the show‑cause notice. What has been placed before your good self is a self‑made story just to harm me. I only prepared the challan/P.T.10 Form and that too in routine. The challan form on which he received the bogus treasury receipt is not filled up with my handwriting. This simple argument can go to show that I am not in the picture. I am also appending herewith written statement from Mr. Shahid Mahboob Malik, the complainant, which will indicate that he did not meet me in any way. From that statement too, it will be clear that I neither received any amount for payment into the treasury nor issued the challan form."

8. In spite of the above categorical stand taken by the appellant, the competent Authority considered appropriate to dispense with holding of a regular enquiry and to take action against the appellant under Rule 8 of the Rules as under:‑‑

"I accordingly in exercise of the powers of an authority as provided under rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, impose upon Mr. Basharat Ali, Junior Clerk (under suspension) a major penalty of dismissal from service under rule 4(b)(iv) of the Rules ibid, as recommended by the Authorised Officer with immediate effect. The accused official be informed about the decision. Copies of the order should also be forwarded to all concerned quarters. "

9. Mr. Hamid Khan has relied upon the case of Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603), in which this Court reiterated the principle of law enunciated by it earlier in the case of Deputy Inspector‑General of Police, Lahore and others' v. Anis‑ur‑Rehman Khan (PLD 1985 SC 134) as under:‑‑

"6. In the Deputy Inspector‑General of Police, Lahore and others v. Anis‑ur‑Rehman Khan (PLD 1985 SC 134) it has been pointed out that in what circumstances recourse to the shorter procedure of show‑cause is justified. For resolving controverted questions of fact where evidence has to be recorded and opportunity of cross‑examination has to be given, the proper course is always to hold a full‑fledged inquiry.

Otherwise, the findings recorded, as in this case, will be based more on conjectures than on evidence/material available on record properly produced and accepted."

10. Besides the above two case, reference may also be made to the following additional cases on the point in controversy.

(i) Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440); in which the appellant who was, at the relevant time, acting as Head Clerk Phone Branch, Karachi, was suspended on the ground that he disobeyed the orders of his superior officer, which amounted to misconduct. In reply to the above charge, the appellant submitted his defence denying the allegation. However, A.D. Engineering‑II proceeded to examine the appellant by directing him to answer a questionnaire, which the appellant did. After that he was given a formal hearing, which followed with the order of compulsory retirement from Government service though he had put in 28 years' service. This Court, while allowing the appeal of the appellant, observed as under as to the infirmity in the departmental proceedings:‑‑

"6. In Government Servants (Efficiency and Discipline) Rules, 1973, 'misconduct' is defined. Rule 4 contemplates minor and major penalties. Compulsory retirement is included in major penalties. Rule 5 empowers authorised officer to direct enquiry against Government servant through an Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. If it is decided that there should be enquiry either by Enquiry Officer or Enquiry Committee then procedure laid down in Rule 6 is to be followed and the requirements enumerated therein are that charge shall be framed and Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross‑examine the witnesses and he can also produce witnesses in his defence. It appears that in the instant case this procedure as such was not followed in letter and spirit and witnesses were not examined in support of the charge. It was necessary for that reason that ultimately major penalty has been imposed upon the appellant. The manner in which enquiry proceedings were conducted by way of questionnaire without examination of witnesses in support of charge or defence cannot be approved as it is not consistent with requirements of Rule 6 of the abovementioned Rules."

(ii) Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222);

This is a judgment rendered by a Full Bench of this Court comprising five Judges headed by the then learned Chief Justice, to which one of us (Ajmal Mian, J.‑‑ who happened to be a Member of the Bench and the Judge who authored the judgment), and in which the following observations were made on the point in issue:‑‑

"5 ..The question, whether any major punishment can be imposed upon a civil servant without holding an enquiry, depends on the facts of each case. Clause (iii) of sub‑rule (1) of Rule 5 of the Rules empowers the Authorised Officer to dispense with the enquiry but he is required (by an order in writing) to inform the accused 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 the proposed action.

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8. The ratio of the above case seems to be that under Rule 5(1)(iii) of the Rules, an authorised officer has discretion to decide, whether in a disciplinary proceeding against a civil servant in response to his reply to the charge‑sheet, a regular inquiry should be held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full‑fledged inquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross‑examine the witnesses. In such a matter if findings of fact are recorded without recording any evidence, the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned. "

(iii) Ghulam Muhammad Khan v. Prime Minister of Pakistan and others (1996 PLC (C.S.) 868); in which one of us (Ajmal Mian, J.), who happened to be a Member of the Bench and the Judge who authored the judgment, reiterated the above principle in the following words:‑‑

"5. It has been consistently held by this Court that there is a marked distinction between Rule 5 and Rule 6 of the Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter Rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross‑examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawab Khan and another v. Government of Pakistan through 'Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 2,1'2) .

11. By now it seems to be a well‑Settled principle of law that the question, as to whether a regular inquiry is to be held in a case of misconduct against an accused civil servant/employee or not, will depend on the facts of each case. We may observe that while considering the above question we should keep in mind; the fact that the concept that no person should be condemned unheard (i.e. audit alteram partem) has acquired new dimensions with the passage of time. Nowadays the Courts apply the above cardinal principle of jurisprudence more liberally even to the cases in which there is no statutory requirement of personal hearing. Furthermore, the right of personal hearing does not mean simpliciter hearing, but it should be fair. What is a fair hearing, it will depend on the facts of each case. There cannot be any general criterion of universal application.

If the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular inquiry cannot be dispensed with. In such a case, the initial burden is on the department to prove the charge, which cannot be done without producing evidence. If the witnesses are examined in support of the charge by the department before the Inquiry Officer, the accused civil servant/employee has the right to be present at the time of examining of such witnesses and has also the right to cross‑examine them to demonstrate that they are not telling the truth. He has further right to produce j evidence in rebuttal. The department has the right to cross‑examine the accused civil servant/employee if he makes a statement in defence and to cross‑examine other witnesses who may appear on his behalf. However, we may clarify that a departmental disciplinary proceeding cannot be equated with a legal proceeding in a Court of law. The technicalities, which are the hallmark of the latter, cannot be pressed into service in judging the legality of the former proceedings. There may be some technical lapses on the part of an Enquiry Officer while conducting the disciplinary proceedings but if such lapses have not caused any material prejudice to the accused civil servant/employee, the same will not vitiate such proceedings or the order passed in consequence thereof.

12. In the present case as highlighted hereinabove in para. 7, all along the appellant had denied the factum of having embezzled Rs.9,990. In this view of the matter, the procedure adopted in holding the enquiry by the department was not warranted by law and was contrary to the law as enunciated by this Court in the above reports. We would, therefore, allow the instant appeal, set aside the impugned judgment of the Tribunal as well as impugned order of the department and would order the reinstatement of the appellant with full back benefits subject to the right of the department to ascertain, as to whether during the period commencing from the date of dismissal from service till his reinstatement, the appellant was engaged in any gainful employment. However, there will be no order as to costs.

M.B.A./B‑2/S Appeal allowed.