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Appeal No. 359(L) of 1982, decided on 25th June, 1984.

‑‑ Disciplinary action‑Accused already admonished by recording note of displeasure‑Held ; could not be punished again for same charge.

‑‑ R. 5(t)(iv)‑Action by Authorised Officer after receipt of enquiry report‑Under obligation to form opinion by applying his own mind‑Enquiry report received by Authorised Officer not directly but with comments of an officer alleged to have bias against accus ed‑Authorised Officer without application of mind basing his recommendations for major penalty on such comments‑Resultant order of Authority. in circumstances, held, not sustainable.

Ch. Mushtaq Masud and Muhammad Shafi for Appellants.

Hafiz Tariq Nasim for Respondents.

Date of hearing : 30th May, 1984.

.‑The appellant then Assistant Registrar. Joint Stock Companies, Multan, under the Securities and Exchange Authority of Pakistan (hereinafter referred to as SEAP), was charged vide charged‑sheet, dated the 22nd of April, 1980 for the follow ing charges :‑

"(i) That you registered a company, namely, United Industrial and Commercial Finance Limited on 26th May, 1979 in defiance of departmental instructions.

(ii) That you tampered with the official records and documents having a bearing on the registration of the said company.

(iii) That you disregarded rule 8(1) of the Companies (Registration Offices) Regulation 1978 in that full registration fee had not been deposited with the Government Treasury by the date of registra tion.

(iv) That you disregarded the directions about keeping the records of the so‑called finance companies in your personal custody.

(v) That you made misstatements about the date of re‑submission of documents of United Industrial and Commercial Finance Limited and about non‑receipt of Head Office letter No. Registrar‑Gen/ 254/77 dated 13th January, 1980."

2. In his reply to the charge‑sheet the appellant denied all the charges. Thereon Mr. Zulfiqar Khan, Deputy Secretary, Ministry of Finance, was appointed as Enquiry Officer, who, after holding the enquiry, submitted his report to SEAP where it was examined and com mented upon by the respondent No. 2 and then was forwarded to the Authorised Officer who proposing imposition on the appellant a penalty of reduction in rank from Grade‑l8 post of Assistant Registrar of Joint Stock Companies to Grade‑17 post of a Research Officer in the SEAP, submitted the case to the Authority for his orders. However, penalty of dismissal from service was awarded by the Authority, hence this appeal.

3. Having heard the learned counsel for the parties and having gone through the relevant record including the enquiry proceedings, we proceed to analyse the enquiry proceedings charge‑wise in the paragraph that follows :‑

4. The findings of Enquiry Officer on Charge No. 1 was :‑

"Even if it be admitted that the incorporation certificate of UI & CF was signed before receipt of Head Office instructions, tile very fact that Mr. Atta Muhammad did not make any positive-efforts to stop its issuance clearly shows his disregard for Head Office instructions."

A bare reading of the above would show that charge No. I, as framed, could not be proved in the enquiry. In spite of this the Enquiry Officer held the appellant guilty of disregarding Head Office instructions by not making any positive efforts to stop issuance of incorporation certificate of UI & CF. This finding is irrelevant and uncalled for. Firstly, because the charge clearly was 'registering' the company in defiance of depart mental instructions and not 'issuance' of the incorporation certificate and, secondly, the Head Office never instructed the stoppage of incorporation certificate of already registered company. As the instruction was quite clear that no finance company should be registered in future, the accused appellant was, not required to withhold the issuance of incorporation certificate in pursuance of the said direction. He, therefore, committed no default. Indeed there is sufficient material on record to prove that the accused‑appellant had already registered the company before he, for the first time, received telephonic instructions of Head Office that no finance company should be registered. We are thus clearly of the view that the prosecution has failed to establish this charge and the above-quoted finding of the Enquiry Officer is based on his misunderstanding of the matter.

5. According to the finding of the Enquiry Officer regarding charge No. II, the record was though tampered with yet the involvement of the accused‑appellant therein could not be established. This charge also thus stood disproved.

6. The Enquiry Officer has rightly exonerated the accused‑appellant from charge No. III.

7. The Enquiry Officer held the accused‑appellant guilty of charge No. IV. However, in this regard the main emphasis of the appellant was that the SEAP had already recorded a note of dis pleasure for the lapses forming basis of this charge and thus penalized him there-for. He cannot be punished for the same offence twice. The stand of the respondent‑department was that the displeasure for the lapses forming basis this charge was conveyed without proceedings under the Government Servants (Efficiency and Discipline) Rules and, therefore, cannot be considered a punishment. In our view, whether or not the note of displeasure was issued in terms of the Government Servants (Efficiency and Discipline) Rules, the fact remains that the accused‑, appellant had already been admonished for the omission forming basis of this charge. We, therefore, uphold the contention of the accused appellant that he could not be legally punished for the same charges twice.

8. The Enquiry Officer did nor record a positive finding regarding charge No. V. In any case, he did not hold the accused‑appellant guilty of the said charge. Our careful examination of the record also leads us to the conclusion that the prosecution ha; failed to establish this charge even.

9. The above analysis would show that the charges levelled against the appellant could not be substantiated in the enquiry. We have further noticed that the enquiry report is not based on the evidence on the record but on the confused thoughts and flights of imaginations of the Enquiry Officer who by concluding that "a further probe was needed has impliedly held that .the charges against the accused‑appellant could not be estab lished in the enquiry. In any case; this report was submitted, instead of Authorised Officer, to SEAP. It is contended, on behalf of the appellant that under the Rules, the report was to be submitted directly to the Autho rised Officer, which was not done and by routing the report through SEAP an opportunity was provided to the respondent No. 2, who bore a malice against the appellant, to prejudice the Authorised Officer by recordings, biased and uncalled for comments thereon which, by itself, vitiates the proceeding. Be that as it may, it goes without saying that the report was to be submitted to the Authorised Officer who was under obligation to form his opinion by applying his own mind. It, however, appears that the Authorised Officer did not at all apply his mind but based his opinion on the uncalled for and biased comments recorded by the respon dent No. 2 on enquiry report. In oar considered view, the opinion of the Authorised Officer and the ultimate order of the Authority thereon are unwarranted and not in conformity with the material on record but are based only on the confused thoughts, of Enquiry Officer and the biased and uncalled for comments of the respondent No. 2. That being so the impugned order cannot be sustained.

10. The learned counsel for the appellant raised also a number of technical and legal pleas to challenge the validity of the proceedings and legality of the impugned order. Since, however, relief is being granted to the appellant by us on merits, we do not think it necessary to consider and discuss the legal and technical plea raised by the learned counsel.

12. In view of the foregoing, the appeal is accepted, the impugn ed order is set aside and it is directed that the appellant shall be reinstated into service with effect from the date of his dismissal from service with all the attending benefits.

13. No order as to costs.

A. E. Appeal accepted.

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