GHULAM MUHAMMAD KHAN vs PRIME MINISTER OF PAKSITAN and others

' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 12-9- 1993 of the Federal- Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, passed in Appeal No, 23(K) of 1993, filed by the appellant against the penalty of compulsory retirement through a Notification dated 19-9-1992, dismissing the same. Leave to appeal was granted to consider the question, whether the Tribunal, after having found that some of the allegations as to irregularity in the inquiry were correct and had gone unrebutted, was justified in dismissing the appellant's appeal on the ground that no prejudice had been caused to him.

2. The brief facts are that the appellant joined service on 10-3-1954. He was promoted from time to time. At the relevant time i,e, in 1988, he was holding the post of Assistant Director (Passports), RPO Saddar, Karachi, when he was charge-sheeted as follows:-- "(i) He issued Passports to 79 persons whose addresses given in the declaration forms were incomplete.

(ii) The names of the parties in the declaration forms and identity cards were different.

(iii) Signatures appended on declaration forms and identity cards were not similar, etc.

(iv) Photographs in many cases affixed on the declaration forms, Identity Cards and police verification certificates were different.

(v) He issued many passports on the basis of the same Identity Cards.

(yi) He signed a large number of passports without verifying that the documents on the basis of which these were being issued were deficient, false and full of discrepancies."

' Mr. Fazle Raziq, the then Deputy Secretary, Ministry of Interior, was appointed as Inquiry Officer for holding a formal inquiry into the above charges. The Inquiry Officer in his report held that the charges were proved, as a result of which the penalty of compulsory retirement was imposed and the appellant was . Retired through Notification dated 19-9-1992. The appellant filed a review petition to the Prime Minister on 18-10-1992. Since he had not received any reply within 90 days, he filed the above service appeal on 16-2-1993. The main grievance of the appellant before the Tribunal was, that he was not given fair opportunity to defend the above charges inasmuch as the inquiry proceedings were completed within about 45 minutes, references were made to the Director-General, Registration outside the inquiry proceedings and the replies to the same were taken into consideration by the Inquiry Officer without showing the same to the appellant. The Tribunal in judgment accepted' the appellant's above contention as to the irregularity in the following words:-- "Some of these allegations are correct and have gone unrebutted by the respondents department.

However, we are inclined to ignore these irregularities as, in our view these have caused no prejudice to the appellant. "

3. However, the appeal was dismissed. On the ground that overall the appellant was responsible being the head. It was also ordered by the Tribunal that the action should also be taken against the Examiner and Superintendent who were also responsible for scrutiny of the above documents.

Thereupon, appellant filed a petition for leave to appeal, which was granted to consider the above question.

4. In support of the above appeal, Mr. Azhar Ali Siddiqui, learned' ASC for the appellant, has vehemently contended that though respondents Nos. 1 to 3 had decided to hold inquiry against the appellant but no evidence was recorded and the conclusion that the appellant was guilty of the above charges was arrived at on the basis of inquiries made by the Inquiry Officer from three persons behind the back of the appellant. He, therefore, contended that the aforesaid impugned order of compulsory retirement was not sustainable in law. To reinforce the above submission, he has referred to the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCM R 1440), in which it has been held that the inquiry proceedings conducted by way of questionnaire without examination of witnesses in support of the charges are not consistent with the requirement of Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules.

' Mr. Farooq H. Naik, learned Deputy Attorney-General, who has appeared for the officil respondent has candidly submitted that factually no regular inquiry was conducted as the finding of the Inquiry Officer is found on the documentary evidence.

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 222).

6. In the present case we have reproduced hereinabove in para. 2 the charges which were levelled against the appellant. Admittedly the appellant had not admitted the above charges but denied his participation. The nature of the charges was such on which no finding of fact could have been recorded by the Inquiry Officer without recording evidence in support of the charges which implies the right of the appellant to cross-examine the witnesses who might have been produced in support of the charges. This was not done. The Tribunal, after having found the above material irregularity in conducting departmental inquiry, not justified in concluding that no prejudice had been caused to the appellant by the above irregularities. The appellant was thrown out of service prematurely by imposing major penalty of compulsory retirement. This penalty cannot be said to be of the nature which has not prejudiced the appellant.

7. Additionally, once the department had decided to opt Rule 6 of the Rules and to hold a proper inquiry by appointing an Inquiry Officer, it could not have resorted to Rule 5 of the Rules without any justifiable reason. Factually it is not the case of the respondent department that it resorted to Rule 5.

8. The upshot of the above discussion is that the judgment of the Tribunal is not sustainable and so also the aforesaid Notification dated 19-9-1992 compulsorily retiring the appellant by way of imposing major penalty. The same are set aside and the above appeal is allowed. The appellant is re-instated in service with back benefits subject to adjustment' of monetary benefits received by him from the Government for the period from the date of above Notification till the date he joins the service or till the date he attains the age of superannuation, whichever is earlier. However, there will be no order as to costs.