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Civil Petition for Special Leave to Appeal No. 98‑R of 1980, decided on 7th October, 1980.

(On appeal from the judgment and order dated 2‑4‑1980 of the Service Tribunal, Islamabad, Camp, at Karachi, in Appeal No. 16 (K) of 1978).

----R.8‑‑‑Compulsory retirement‑Allegations against respondent in absence of an enquiry remaining un-established‑Tribunal, held, right in holding that impugned order' of compulsory retirement cannot be sustained in law.

Syed Iftikhar Ali, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 9th October. 1980

This petition for special leave to appeal is directed against the order of the Service Tribunal dated 2‑4‑1980 setting aside the compulsory retirement from service of respondent Muhammad Arshad Jawaid for an alleged misconduct and directing his re‑instatement with all consequential benefits.

The respondent was on 15‑2‑1971, charge‑sheeted for misconduct, negligence in observing rules and causing loss to Government and for inefficiency. In his reply the respondent Muhammad Arshad denied the allegations and demanded a detailed inquiry and also desired that he may be heard in person. The aforesaid charge‑sheet was withdrawn and substituted by another charge‑sheet dated 31‑7‑1971 containing the same allegations against the respondent. It was stated in the charge‑sheet that Inquiry Officer had been duly appointed under rule 8 of Government Servants (Efficiency and Discipline) Rules, 1960 and the respondent was direc ted to submit his written defence to him and to state in it whether he desired to be heard in person before the Inquiry Officer or to lead any evidence in his defence. In his reply, the respondent again denied the charges. He also questioned the authority of the Department to supersede the earlier charge‑sheet which had been replied to by him Which reply according to him had been found satisfactory. In the circumstances, the respondent alleged that the question of submission of defence did not arise.

Admittedly, no inquiry was held and the respondent was firstly dismissed from service but on further representation he was compulsorily retired from service by order dated 9‑4‑1978 which has been found to be not in accordance with law by the Service Tribunal on an appeal filed‑ by the respondent.

Syed Iftikhar Ali, Deputy Attorney‑General, raised only one contention in support of this petition and that was that the Tribunal was in error in taking the view that an inquiry was a must for the respondent had not only refused to submit his written defence but also refused to join the proposed inquiry. The contention is without substance for it ignores rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1960 which reads as follows :‑

"8. Appointment and Procedure of Inquiry Officer. (1) Where a Govern ment servant is proceeded against under clause (a), or clause (b) or clause (c) of rule 3, and the authority has decided that the case calls for a major penalty, the authority shall appoint an officer, being senior in rank to the person proceeded against, to be Inquiry Officer and to conduct the proceedings.

(2) The Inquiry Officer shall hear the case from day to day, anal no adjournment shall be given except for reasons to be recorded in writing. Every adjournment with reasons therefore, shall be reported forthwith to the authority. No adjournment shall be given for more than a week.

(3) If the Inquiry Officer is satisfied that the Government servant proceeded against is hampering or attempting to hamper the progress of the inquiry he shall administer a warning, and if thereafter he is satisfied that the accused is acting in disregard of the warning, he shall record a finding to that effect, and proceed to complete the inquiry in such manner as he thinks best fitted to do substantial justice.

(4) The Inquiry Officer shall within ten days of the conclusion of the proceedings, or such longer period as may be allowed by the President, submit his findings and the grounds thereof to the authority."

It is, therefore, obvious that notwithstanding the failure of the respondent to respond to the proposed inquiry it was incumbent upon the Inquiry officer to proceed to complete the inquiry in absence of the respondent and give his finding on the allegations levelled against him.

The result, therefore, is that the allegations against the respondent, in the absence of an inquiry, remained un‑established and the Tribunal was right in holding that the impugned order of compulsory retirement from service of respondent cannot be sustained in law.

There is, therefore, no merit in this petition and it is accordingly dismissed.

Petition dismissed.

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