Sardar ABID HUSSAIN Versus SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD

QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER:--- While the appellant had been serving the National Institute of Child Health, Karachi as Aid Nurse, he was removed from service vide order dated (sic) Karachi under Removal from Service (Special Powers) Ordinance, 2000. He preferred departmental appeal dated 14-7-2003, which remained un-replied; hence he filed the present appeal before the Tribunal on 18-9-2003.

2. The proceedings against the appellant started on a complaint by Muhammad Anwar, father of one child patient namely Shoaib, who was admitted in Burnt Unit of the said Institute and said to have died due to gross negligence on the part of the appellant, who was Aid Nurse on duty at the relevant time looking after child patient Shoaib. Consequently, a preliminary inquiry in the matter was held wherein about 14 witnesses were examined and on the basis of the inquiry report following show-cause notice dated 3-6-2003 was issued to the appellant:--

"1. Whereas a complaint received from Mr. Muhammad Anwar (Father of patient Shoaib) by Ministry of Health, Islamabad regarding death of his child who was admitted in Burnt Unit of this Institute. As per directives of Ministry of Health an enquiry committee was constituted to enquire about the case. In the light of enquiry report it is proved that the above mentioned patient died due to your gross negligence. This is highly objectionable and against the rules.

2. Whereas from the facts mentioned above & as per instruction of the Ministry, there is sufficient ground that disciplinary action should be taken against you under Removal from Service (Special Powers). Ordinance, 2000 and (Amendment), Ordinance 2001 in view of the alleged 'Misconduct ' .

3. Whereas it is not necessary to have further enquiry conducted through an enquiry officer or committee. due to prima facie of the charges."

The appellant replied the show-cause notice denying the allegations against him. The reply of the appellant did not find favour with the respondents; hence the penalty of removal from service was imposed upon the appellant vide order dated 17-6-2003. The appellant filed departmental appeal against the penalty imposed upon him, but having received no reply of his departmental appeal, he filed this appeal, as mentioned above.

3. We have heard the learned counsel for the parties and perused the record including the written comments filed on behalf of the Respondents.

4. The learned Counsel for the appellant assailed the disciplinary proceedings against the appellant on the ground that in the preliminary enquiry the appellant was not associated and no chance of cross examination of the witnesses was given; that in the show-cause notice regular inquiry was dispensed with although in view of the denial of the appellant of the serious allegations against him, regular inquiry was absolutely necessary to pin down the appellant and hold him responsible for the death of child patient Shoaib, but that was not done; hence, in view of the various authorities of the apex Court, the disciplinary proceedings against the appellant were illegal in as much as he was deprived of putting up his defence. The learned counsel further pointed out that no opportunity of personal hearing was given to the appellant and he was not personally heard and, therefore, he was condemned unheard in violation of the principles of "audi alteram partem". In support of his contentions, learned Counsel for the appellant relied on 2004 SCMR 316, 2005 PLC (C.S.) 1574, PLJ 1997 SC 353, 2002 PLC (C.S.) 1083 = 2002 SCMR 1034, 2004 PLC (C.S.) 959 and 2003 PLC (C.S.) 365. The learned counsel, therefore, urged that the appeal be allowed and the impugned order of removal of the appellant be set aside with direction to the respondents to reinstate the appellant in service from the date he was removed from service with full back-benefits.

5. The learned Counsel for the respondents stated that the action against the appellant was taken after a very plausible inquiry of 14 persons and he was afforded a chance of explaining his position. The learned counsel justified the action of the respondents for imposing major penalty upon the appellant of his removal from service.

6. We have carefully considered the above arguments of both sides as also the authorities cited at the bar. It is an admitted position in this case that the appellant was not associated in the preliminary inquiry and he was not given a chance of cross-examining the witnesses examined in the preliminary inquiry; hence in view of the authorities cited by the learned Counsel for the appellant no reliance can be placed upon such an inquiry for penalizing the appellant. So far as the show-cause notice is concerned, regular inquiry was dispensed with in it but in view of the denial of the serious allegations 'of fact by the appellant, it was incumbent upon the respondents to have held a regular inquiry into the allegations in view of the various authorities of the Hon'ble Supreme Court, as mentioned above. The respondents had admittedly not held a regular inquiry into the allegations levelled against the appellant and for that no plausible explanation is available on record. The appellant has been penalized under Removal from Service (Special Powers) Ordinance 2000 under section-3 of which after regular inquiry a show-cause notice was to be issued to the appellant for imposing the major penalty of removal from service upon the appellant. Since no regular inquiry was held into the allegations against the appellant, there was no second show-cause notice issued by the respondents. Lastly, the appellant was also not personally heard by the competent authority. The appellant was thus condemned unheard in violation of the principles of "audi alteram partem " , which principle has to be read in every statute even if not provided specifically. Reliance is placed on 1994 SCMR 2232.

7. In view of the facts and circumstances, as also the authorities referred to above, we allow the appeal, set aside the impugned order of removal of the appellant from service and direct the respondents to reinstate the appellant in service from the date he was removed from service. We further direct that de novo disciplinary proceedings be initiated against the appellant on the basis of same show-cause notice strictly in accordance with law. Such proceedings be initiated and completed within a period of 4 months from the date of receipt of a copy of this judgment. So far as back benefits are concerned, these will depend upon the result of de novo disciplinary proceedings against the appellant. No order as to costs.

8. Announced in open Court.

9. Copies of the Judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules, 1974.

M.H./225/FST ???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.