HAQ NAWAZ Versus DIRECTOR-GENERAL, INSTITUTE OF BLOOD TRANSFUSION SERVICES, PUNJAB, LAHORE

ABDUL HAMID KHAN (MEMBER). -- Haq Nawaz, appellant while working as Junior Clerk, in the Divisional Blood Transfusion Unit, Nishtar Hospital, Multan, was proceeded against departmentally for misappropriation of laboratory fees amounting to Rs.81, 215.80 out of which a sum of Rs.28,429.30 had meanwhile- been deposited, by him. A show-cause notice -was served on the accused civil servant by the authorised officer wherein he was charged with misconduct and required to show cause as to why the major penalty of dismissal from service should not be imposed tin him. As a criminal case was also pending against him on the same charge in the Court of the Special Judge Anti Corruption, Multan, - he, therefore, requested the authorised officer to pond the departmental proceedings till a decision wits taken in the criminal case. The Authorised Officer, however, considered that the accused civil servant "has replied in a very ambiguous way cleverly and notoriously without mention in any reference regarding No and date of the Notice served thus indirectly admitting the crime" and referred the case to the authority for imposing "the major most punishment which must never be less than termination from the service." The authority i.e. respondent No. 2 (Lecturer/Demonstrator, Institute of Blood Transfusion Services, Punjab, Lahore) after serving a show-cause notice on the accused civil servant and after hearing him in person, (lid not 'find his written explanation or verbal submissions- satisfactory and finding him guilty of the charge imposed on him the major penalty of removal from service.

2. Feeling aggrieved of the order of the Authority the appellant riled an appeal before respondent No. 1 i.e. Director-General, Institute of Blood Transfusion, Punjab, Lahore which ,was summarily rejected by the appellate authority and the appellant informed that his appeal has been rejected. Hence this appeal before the Punjab Service Tribunal.

3. We have heard the counsel of both the parties and also gone through the record relating to this case, produced before this Tribunal. During the course of hearing it was contended by the learned counsel for the appellant that the departmental proceedings have been rendered invalid by the following acts of omission and commission of the authorised officer and the appellate authority:

(i) The show-cause notice dated 15-12-19117 served on the appellant by the authorised officer does not mention the rules or the law under which it was being served; . --

(ii) It does not also mention the specific provision under which one of the major penalties including dismissal from service was proposed to be imposed on the appellant;

(iii) The show-cause notice does not indicate if the accused civil servant was offered the opportunity of being heard in person;

(iv) On receipt of the reply to the show-cause notice the authorised officer should have given another opportunity to the, accused civil servant, notwithstanding the tatter's plea for postponing the departmental proceedings until the final decision in the anti-corruption case

(v) As provided in section 6(4) of the E & D Rules, 1975, before recommending the imposition of major penalty the authorised officer should have provided an opportunity to the accused civil servant to offer his explanation against his- recommendation.

(vi) While forwarding the case to the authority and recommending the major penalty the authorised officer recommended that the major punishment of termination of services should be imposed on the accused civil servant whereas the E & D Rules do not provide termination of services as one of the major punishments;

(vii) The appellate authority's order dated 5-5-1989 rejecting the appeal is a non-speaking order and has been passed without considering the merits of the case.

4. On the basis of the abovementioned defects in the departmental proceedings, the learned counsel for the appellant requested that the impugned orders may be set aside and the appellant reinstated in service with all back benefits. The learned District Attorney vehemently opposed the prayer and insisted that there were no material defects in the proceedings and the impugned orders should, therefore, be upheld.

5. The departmental proceedings do not need to be perused twice to come to the conclusion that these proceedings do suffer from the infirmities recounted by the learned counsel for the appellant. While one may ignore the first two deficiencies the other defects are material irregularities, which have rendered the departmental proceedings invalid. Provision of opportunities to the accused civil servants for personal hearing and for offering explanation to the recommendations of the authorised officer are basic and inalienable requirements of the departmental proceedings under the Rules and any omission in this regard on the part of the authorised officer seriously prejudices, the defence of the appellant. In the instant case, it is evident that the appellant was not provided an adequate opportunity of presenting his case before the authorised officer, first-when the show-cause notice dated 15-12-1987 was issued and second when the authorised officer forwarded his recommendations to the authority. This was in clear violation of sub-rules (3) and (4) of Rule 6 of the E&D Rules, 1975. Similarly, the order dated 5-5-1988 of the appellate authority is a non-speaking, one sentence and arbitrary order. It has obviously been passed without examining the merits of the case.

6. The above acts of omission and commission on the part of the authorised officer and the appellate authority have vitiated the departmental proceedings. We, therefore, accept the appeal, set aside the impugned orders and remand the case back to the authorised officer who should conduct the proceedings de novo from the point where the first defect occurred i.e. lie should serve a fresh show- cause notice on the appellant which should be drafted on the lines of the model show-cause notice circulated by 'the Service and General Administration Department and contained in the booklet titled "Guide Book for Departmental Proceedings under the E&D Rules, 1975:" The period of absence after the appellant's removal from service is left to be determined by the competent authority. The above directions of the Tribunal will have no bearing on the laboratory fees amounting to Rs.52,786.50 which the appellant has already deposited on 26-12-1987 unless a contrary decision is taken as a result of the de) novo departmental proceedings. There will be no orders as to costs.

M.Y.H./319/Sr. P Case remanded.