YOUNAS MASIH vs DEPUTY DIRECTOR, FOOD, LAHORE and another

' AKHTAR HASSAN (CHAIRMAN).---The appellant Younas Masih was removed from service vide order dated 3-11-1990 on the charge of having been found distilling liquor in the premises of wheat godown during his duty hours as Chowkidar. In the course of investigation into the case of FIR 35, dated 11-5-1990, P.S. Manawala, District Sheikhupura, the police raided the wheat godown at PR Centre Panwan, District Sheikhupura. The appellant was caught red-handed while distilling liquor.

He was challaned and ultimately he faced trial before the Criminal Court. However, he was acquitted.

2. On the departmental side, he was charge-sheeted. The same officer acted as Authority/Authorised Officer. An Inquiry Officer was appointed who reported that the charge was adequately proved against the appellant. On receipt of the inquiry report the Authority-cum- Authorised Officer passed the impugned order dated 23-11-1990 removing him from service. His departmental appeal was rejected and hence the instant appeal before this Tribunal.

3. Mr. M.Y. Bhatti, counsel for the appellant pointed out at the outset that the rule relating to the Authority acting as Authorised Officer had been the subject of interpretation in a number of cases including 1981 PLC (C.S.) 194 (Muhammad Nawaz v. Secretary, Agriculture) and 1987 PLC (C.S.) 446 (Ghulam Sabir v. Director, Food), wherein it was consistently observed that this sort of combination was opposed to natural justice inasmuch as a serious prejudice was likely to be caused to the accused who was deprived of the opportunity of his case having been considered by two different officers viz. The Authority and the Authorised Officer. He stressed that the job of the Authorised Officer was to assess the report of the Inquiry Officer and give an objective decision if really the case called for major penalty. According to him, in any such event, the Authorised Officer had to make his own recommendations and that too only after giving an opportunity of hearing to the accused. The genesis of this provision, the counsel pressed, was that the accused could possibly convince the Authorised Officer of his innocence, or else the punishment which he was being visited with, might be a minor penalty. Such a valuable opportunity stands denied to the accused if the same officer happened to act as Authority as well as Authorised Officer. The cases cited by the learned counsel amply support him because combining together functions of two different officers into one was obviously not conducive to administration of fair justice. Practically the same officer initiates proceedings in his capacity as Authority and later receives a report of the Inquiry Officer denying the appellant an objective analysis by another officer, and then he passes the final penalty which may be, as in this case, dismissal or removal. Such penalty has been invariably held to be tantamount to conviction in a criminal case and therefore postulates unstinted administration of justice. PLD 1989 SC 335 (Samiuddin Qureshi v. Collector of Customs) was claimed to be applicable to strengthen this contention. This is how allowing the same officer to act as complainant and then as a Judge was not warranted natural justice.

4. The learned District Attorney opposed this argument by laying stress on the phraseology of the 2nd proviso of clause (c) of sub-rule (1) of Rule 2 of the E&D Rules, 1975 maintaining that it enabled the same officer to inflict either a major or as the case may be, a minor penalty as he might deem fit and that it was not easy to read in its wordings any restriction on his powers as claimed by the learned counsel: 'the proviso ibid reads: ' Provided further the Authority may be authorised to act as Authorised Officer."

' It will be seen that the language is not that simple as to accept unreservedly that the same officer could do whatever he liked. Conversely the expression "the Authority may be authorised to act as Authorised Officer" is quite pragmatic and has some significance. It abegs a question namely as to how an Authorised Officer acts under these rules. In the sequence of proceedings, the Authority becomes dormant after making an initial direction of taking up disciplinary proceedings against a civil servant and thereafter practically it is all up to the Authorised Officer to act. He assesses objectively the allegations, decides to proceed with it himself by adopting summary procedure, or in the alternative orders an inquiry, receives the report of the Inquiry Officer; again assesses its merits for awarding minor or major penalty; in the former case he himself awards but only a minor penalty while in the latter case submits his recommendations to the Authority for inflicting major penalty. This whole exercise clearly visualises the extent to which the Authorised Officer could act and that is limited to only awarding a minor penalty. We would therefore, have no hesitation to accept the argument that there was a restriction imposed upon the same officer while acting as Authorised Officer. The reason behind this interpretation evidently was that virtually a complainant officer may not be conferred upon power of awarding the extreme penalty of dismissal etc. Against a civil servant without getting his case examined by intervening officers.

5. We allow the appeal set aside the impugned orders and remand the case to the Authority concerned to decide the matter afresh in accordance with law/rule.