MUHAMMAD NAZIR CHAUDHARY Versus GOVERNMENT OF PAKISTAN
CH. HASAN NAWAZ (MEMBER). ‑‑‑Minor penalty of `censure' was imposed against the appellant, serving as Divisional Engineer, Inspection (Phones), Central Telecommunication Region, Lahore, by Secretary, Communications in the capacity of Authorised Officer by order dated 21‑3‑1988 (Annexure‑K) in consequence of proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973.
2. After observance of statutory formality regarding departmental appeal, the appellant challenged the validity of this order is the present appeal under section 4 of the Service Tribunals Act, 1973, which is the subject of disposal in this judgment.
3. We are of the considered view that the material on the record does not make it possible to sustain the impugned order. There is nothing either in the Inquiry Officer's report or in any other document to establish that the appellant has been guilty of the charge made against him. These are the reasons in support of the conclusion arrived at by us.
4. The appellant was served with a charge‑sheet dated 6‑7‑1985. Material portion of charge‑sheet dated 6‑7‑1985 served upon the appellant is to the following effect:
CHARGE-SHEET
Whereas you Mr. Muhammad Nazir Chaudhry while working as Divisional Engineer, Telephones (Ext) C.III, Lahore under the General Manager, Lahore Telephone‑' Region, Lahore have been found to have committed during your tenure from 29‑1‑1981 to 1‑8 1983 serious breach of discipline in sanctioning a large number of telephones in total disregard of the waiting list. You gave telephone connections to junior applicants while ignoring many‑others who were senior to them. In doing so you have acted in contravention of the rules,, and without any power or authority vesting in you.
And whereas you the said Mr. Muhammad Nazir Chaudhary failed to keep the appropriate record of the different applications for new telephone connections. This again is a misconduct which reflects your mala fides.'
And whereas from the facts and circumstances it appears that you are prima facie guilty of misconduct." '
5. The charge‑sheet was accompanied by the following statement of allegations: '
"STATEMENT OF ALLEGATIONS
Mr. Muhammad Nazir Chaudhry while working as Divisional Engineer, Phones Telephone (Ext) C.IH, Lahore under the General Manager, Lahore Telephone Region, Lahore during the period from 29‑1‑1981 to 1‑8‑1983 has been found to have committed serious indiscipline in sanctioning the new telephone connections during his posting as Divisional Engineer Phones (Ext.) C‑III, Lahore.
(2) He sanci6ned a large number of telephones in total disregard of the waiting list by giving telephone connections to junior applicants while ignoring many others who were senior to them.
(3) In doing so he has acted in contravention of the powers or authority vesting in him.
(4) A list of telephones sanctioned/installed out of turn and those by‑ passed in the Brandreth Road, Lahore/C‑82 is annexed as Annexure 'A.
(5) He failed to keep the appropriate records of different applications for new telephone connections.
(6) From the above facts and circumstances it appears that Mr. Muhammad Nazir Chaudhary is prima facie guilty of misconduct and in the event of his being found guilty the punishment of dismissal under the Government Servants (Efficiency and Discipline) Rules, 1973 will be called for."
(Sd.)
(F.K. Bandial)
Secretary Communications"
6. As we have' seen, the 'charge is that "the appellant is found to have committed serious breach of discipline in sanctioning large number of telephones in total disregard of the waiting list, while working as Divisional Engineer, Phones (External) Circle III, Lahore for the period from 29‑1‑1981 to 1‑8‑1983 under the General Manager, Telephones Region, Lahore. The charge further stated that he gave telephone connections to junior applicants while ignoring many others who were senior. to them and that in doing so he acted without any authority in contravention of the rules. The statement pf allegations appended with the charge‑sheet added that a list of telephones sanctioned/installed out of turn with those bypassed in the Brandreth Road area Lahore/C‑82 is annexed at Annexure A.
7. It is an admitted fact that a Board was constituted through Circular No. Eng/G‑58/KW/18, dated 19‑11‑1979 issued by General Manager, Telecommunication Region, Lahore and powers for sanctioning of the new telephone connections and shift cases were delegated to this Board as a result of decentralization of powers. This circular was amended by letter dated 2‑1‑1980 empowering Divisional Engineer, Phones (External) to sanction new telephones and shift cases in the area of his jurisdiction. It is also admitted that the appellant was the Chairman of this Board. We are of the opinion that, even if any irregularity was committed, the responsibility was collectively that of the Board and of not the appellant alone who acted as its Chairman. This being so, we are inclined to how that charge‑sheet fixing the responsibility of alleged irregularity on the appellant alone is not in order. It suffers from a very serious defect, in that it causes the impression, right from the very outset, that the appellant alone has been responsible for the commission of this irregularity. We feel that there is a basic difference between the decision of an individual and that of a Board. The decision of a Board not only divides the responsibility, but also at cast mitigates the rigour of the offence and takes away the element of arbitrariness from an act. In this view of the matter, we are inclined to hold that the charge‑sheet and the, statement of allegations suffer from 'inherent defect causing adverse aspersion upon the proceedings which followed.
8. As already pointed out before, a list of ' telephones sanctioned/installed out of turn and those bypassed was attached as Annexure A with the charge‑sheet and the statement of allegations. It is, therefore, to be read as the part of the charge‑sheet. This fist consists of two statements. One is in respect of out of turn sanctioned telephones with 'their registration numbers and the date 'of applications. It specifies the telephone numbers and dates on which they were installed. The second 'statement is a list of bypassed telephones, 20 in number with their registration numbers and the dates of: applications.
9. This is the relevant portion of the report of the Inquiry Officer who has been impleaded as respondent No. 5 in the appeal. "The allegations against the accused are that he did not sanction 20 senior cases while junior cases were sanctioned by him as given in the Annexure A of the charge‑sheet. All 'the 20 senior cases which are alleged to have been ignored by the accused have been examined. Out of these 20 cases, only 4 cases are shown as pending cases in the list of unsanctioned registered demand of Zone 13 Brandreth Road area intimated by the office of the General Manager, L.T.R., Lahore to the Divisional Engineer, Telephones Central‑IV after decentralisation of powers and delegation 6f powers for sanctioning of new telephone connections to the sanctioning board."
10. This is the material part of his' findings: "Out of 20 cases mentioned in the charge‑sheet alleged to have been by‑passed during process of sanctioning by the accused, 16 cases were actually sanctioned by the office of General Manager, 'L.T.R., Lahore prior to handling over of sanctioning powers to the Divisional.' Engineer, Telephones in Lahore Telecom. Region in Central Exchange Area vide No. ENG/G‑58KW/18, dated 27‑11‑1979 (Annexure `C'). Only one case LH‑15444 mentioned in the list of un-sanctioned cases of Zone. .: 13 Branderth Road area at serial No. 143 was processed for sanction by the accused. Thus out of twenty cases only three cases LH‑17388, LH‑17442 and LH‑17455 were not processed for sanctioning although these cases were mentioned at serial Nos. 172, 475 and 476, in the list of unsanctioned cases of Zone 13 Branderth Road area".
11. We may also quote with advantage his observations about the charge sheet. They are to the, following effect: "it is not understood as to how sixteen cases as stated above, which already stood sanctioned, and are not mentioned even in the list of pending cases Zone No. 13 Branderth Road area are mentioned in the charge‑sheet as by‑passed cases while the seventeenth case LHR‑15444 mentioned in the list of unsanctioned cases at serial No. 443 had been processed for sanctioning. Clearly there is some serious lapse in the preparation of basic data for framing the charge‑sheet."
12. Nothing can be more clear to show that the charge‑sheet, apart from the defect already pointed out, is in general terms and does not give a true picture of what the appellant was alleged to have done. The charge7sheet is not specific, which is also a very material defect, clearly bringing about a situation where the appellant cannot be said to have been given sufficient notice of what he was alleged to have done. The result was that under the circumstances, he was not, in any manner whatsoever, afforded an opportunity in accordance with the requirement of rules to explain his position. We do not feel any, hesitation in saying that the disciplinary proceedings have resulted in miscarriage of, justice, which is also established from the fact that the allegations made in the charge‑sheet have been found by the Inquiry Officer to be factually incorrect, with the exception of three last cases of the list of by‑passed telephones.
13. About these telephones it has been observed by the Inquiry Officer that they were not sanctioned in accordance with their seniority and certain applications later in date were sanctioned. Even if it be assumed that the allegations made against the appellant were correct to the extent of these applications, no serious offence appears to have been made out, moreso when the decisions regarding new connections were made collectively by the Board. We may add to it the circumstance' emanating from the fact that the Board sanctioned large number of telephones. If this was the case, it is not possible to attribute any motive to them for disregarding these three old applications and this might as well be the result of oversight or genuine omission. It may be mentioned that presence of any motive has not been alleged even in the charge‑sheet.
14. Another factual mistake was pointed out by the Inquiry Officer in the statement (Annexure A). It was that out of twenty cases alleged to have been sanctioned out of turn, one case LH‑17929, dated 13‑3‑1973 was sanctioned and installed before the appellant's posting as Divisional Engineer, Telephones (External), Lahore.
15. It will be worthwhile to take notice of the appellant's defence‑set up in his explanation in writing. Gist of his case is that these cases were never put up before the Board and that the files of these cases were never received in his office and could not accordingly be considered by the Board for decision. It was pleaded that had the files been available during his period, the applications would certainly have been sanctioned, particularly when eight thousand (8,000) new telephone connections were sanctioned during his period by the sanctioning Board. Even if the number of newly‑sanctioned telephone connections was not as large as indicated by the appellant, there was substance in the, contention that the Board could not have ignored these three cases if they had been, put up before them. As already mentioned before, no motive was alleged in the charge-sheet, and the record does not show that either the appellant or any other member of the Board had any motive for ignoring these three cases when large number of other connections, were sanctioned.
16. Furthermore, there is nothing either in the inquiry report or any other document on the record to proye that the files of these cases had been received in the appellant's office and they were put up before the Board for disposal. As we see from the report, during the earlier days of decentralization of powers, the' Divisional Engineer, Phones Circle IV and Divisional Engineer, Phones (External) used to collect files of the concerned area from the Assistant 'Director (Contract) for sanctioning of pending cases: At a later date, however, much of the record of pending cases was transferred to the concerned Divisional Engineers. It has been stated in the report that the files of these three cases were delivered in the office of the appellant on 29‑5‑1982. There is, however, no reliable evidence in support of this assertion. The Inquiry Officer has referred us to Annexure‑C in support, about which the appellant has explained that it is only an unsigned piece of paper. It is also in the report that during the process of inquiry these files were obtained from the office of the Contract Officers Phones, which also indicates that the files of these cases were not sent to the appellant's office to be put up before 'the Board.
17. Reference may also be made, with advantage to the inquiry Officer's report where he said that while sanctioning new telephones "due regard was not given to the list of unsanctioned cases of Zone 13 Brandreth Road area and although the files were available in the Contract Branch, these three cases viz. LH‑17388, LH‑17442 and‑ LH‑17455 could not be sanctioned". It was further stated in the report that obviously the responsibility besides other members of the sanctioning Board also lies on Mr. Muhammad Nazir Chaudhary, Divisional Engineer, Phones (External) Chairman of the Sanctioning Board, besides he had additional responsibility of maintaining record of the unsanctioned cases. These observations lead us to three inferences: First, the files of these cases remained in the Contract Branch and were never transferred to the appellant's office. Second, the conclusion drawn by the Inquiry Officer is only speculative in nature. The third is that while cooping to this speculative conclusion, he has been influenced by the allegation that it was the appellant's "additional responsibility" of maintaining record of the unsanctioned cases.
18. We might as well' mention that one of the charges‑against the appellant is that he failed to keep appropriate record of different applications for new telephone connections and that this amounted to misconduct, "which reflected his mala fide". It. does not, however, appear from the Inquiry Officer's report, that he had any rule or instruction to show that maintenance of record of new applications was the responsibility of the appellant. He has pleaded in his explanation that this record' was maintained in the General Manager's Office. In any case, there is no reliable evidence of the fact that he failed to maintain this record.
19. It may be mentioned as a material fact that there are numerous documents on the record to ‑show that the appellant had been requesting the department to provide him with copies of certain relevant documents to enable him to prepare his explanation. Although, certain documents are shown to have been provided, the record gives us sound reasons to believe that he was not provided with all the necessary documents. This being so, it hardly requires art emphasis that he was not in a position to render an adequate explanation. This also shows that adequate opportunity of defence was denied to him.
20. It will be in place to make a mention of final show‑cause notice dated 21‑4‑1987. This was also in general terms, in that it said that the appellant was charged "to have committed serious indiscipline in managing the affairs of sanctioning of new telephone connections vide charge‑sheet conveyed under the Ministry of Communications Memo., dated 6‑7‑1985". This was certainly not the charge brought against the appellant on 6‑7‑1985. The final show‑cause notice clearly betrays an effort to generalise the charge.
21. Further, ‑final show‑cause notice dated 21‑4‑1987 says that the appellant was held "guilty of the charges as mentioned in the charge‑sheet". In his report by the Inquiry Officer this, as already mentioned in the preceding paragraphs, is factually incorrect, because the allegations contained in the charge‑sheet and the statement of allegations were not proved in totality even in accordance with the Inquiry Officer's report. The result is that the final show‑cause notice did not reflect the position emerging out of the Inquiry Officer's report, which was another serious defect vitiating the proceedings.
22. For these reasons, the appeal is accepted arid the impugned order of 21‑3‑1988 (Annexure‑A) is set aside.
23. Another relief sought by the appellant is that "non‑payment of salary for thirty‑two months, and compulsory waiting for thirty‑eight months, non writing of ACRs may be declared as illegal, unlawful, mala ride, inhuman, without jurisdiction and the respondents be directed to remit the pay for the last thirty‑two months". Another prayer is‑that the "conduct of the respondents especially respondents Nos., 3 and 4 for initiating false, frivolous and unfounded case relating to proceedings and abuse of his powers, damages to the appellant may be declared as illegal and mala fide".
24. We feel that these prayers do not deserve any analysis and it would be sufficient to say that they are not within the scope of his departmental appeal to the competent Authority, besides being vague and uncertain. The appeal is, therefore, dismissed to the extent of these two prayers, with the observation that the ‑department are bound to make payment of appellant's salary in accordance with law, and‑ that he is entitled to all consequential benefits. There will be no order as to costs. Parties may be informed accordingly.
H.B.T./703/Sr. F Appeal accepted.