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Appeal No. 110 of 1979, decided on 18th August, 1983.

‑‑ R. 2(4)‑Show‑cause notice against officer of Grade‑20 signed by Chief Secretary‑Challenged as incompetently issued on grounds that Chief Secretary not being in Grade‑22 could not act as Authoris ed Officer‑Record indicating that notice factually issued by Govern ment being Authority as well as Authorised, Officer‑Issuance of notice under signatures of Chief Secretary in his capacity as head of Services, in circumstances, held, renders same as invalid.

‑‑ R. 6 ('3) read with Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), S. 4(4)(15)‑Show‑cause notice procedure‑Dis pensing with regular inquiry‑‑Rule 6(3) not void‑Neither inconsis tent nor derogatory to equality cl. (15) of S. 4(4) of Azad Jammu & Kashmir Interim Constitution, Act, 1974‑Reasonable and rational classification‑Permissible legislation provided definite guidelines laid down in such legislation‑Rule 6(3) does not confer upon Authorised Officer discretionary powers of pick and choose from class of civil ser vants‑Discretion of Authorised Officer not uncontrolled and unfetter ed depending upon whims, caprices, likes and dislikes but subservient to and controlled by definite guidelines provided in rules‑Authorised Officer empowered to dispense with enquiry and to have resort to show‑cause notice procedure only if neither facts of case nor interests of justice not so demand.

‑‑‑‑R. 6(3)‑Show‑cause notice procedure‑Discretion to dispense with regular inquiry‑To be exercised in judicious manner and not arbit rarily but for good reasons to be recorded‑Charges denied‑Issues arising out of allegations and replies of accused such as not possible to arrive at righteous and just conclusions without holding detailed and thorough inquiry‑Charges not such as could, be established merely by reference to reward‑Authorised Officer resorting to show cause notice, in circumstances, held, committed an error by not exercising his discretion legally, properly and reasonably and accused prejudiced in his defence‑Consequential penalty order, held, rendered invalid due to lapse on part of Authorised Officer hence set aside and case remanded by Service Tribunal to competent authority for proceeding afresh.

Kh. Muhammad Saeed for Appellant.

Additional Advocate‑General for Respondent.

Date of institution : 29th September, 1975.

‑This service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 has been lodged against Government Orders No. S & GAD/2928‑37/79, dated 30th April, 1979 and No. S & GAD/4950/55/79, dated 9t September, 1979 whereby the appellant was compulsorily retired fro service and his review petition against the order of the said retirement was rejected respectively.

2. The brief facts forming background to the present appeal are that the Government of Newzeland donated some milk powder to the Govern ment of Pakistan for distribution to the needy out of which 3,000 bags were allocated to the Government of Azad Jammu and Kashmir by the Cabinet Division of Government of Pakistan for the distribution in Azad Kashmir for similar purpose in the month of August, 1975. The milk powder so allocated to Azad Kashmir Government was collected from the Railway Station, Rawalpindi by the Storage‑cum‑Relief Officer of Azad Kashmir stationed at Rawalpindi in the month of September, and stored in various godowns there. Later on it so happened that m the month of April, 1976 the High Com missioner of Newzeland in New Delhi informed the Government of Pakistan that the milk powder donated by his Government was being sold illegally in the open market of Rawalpindi upon which information the Deputy Com missioner, Rawalpindi was asked to inquire into the matter and to submit his report. Accordingly a Magistrate 1st Class, Rawalpindi was deputed for the purpose who after making necessary inquiry reported that out of the milk powder allocated to the Azad Kashmir Government 1,000 bags had been sold on 29th February, 1976 to one Anwar Ullah Khan a general merchant and commission agent of Gunjmandi of Rawalpindi at Rs. 49.37 per bag by the Storage‑cum‑Relief Officer of the Azad Kashmir Govern ment under the orders of Mr. A. R. Saleem the then Rehabilitation Com missioner Azad Government whereas the Government order sanctioning such sales had been issued on 16th April, 1976 and that the same was being sold by the said purchaser at Rs. 155 per bag in the open market. There upon the Cabinet Division of Government of Pakistan brought the whole matter including the result of the inquiry of the Magistrate to the notice of Azad Kashmir Government which on its part got the investigation conducted into the matter by the Anti‑Corruption Establishment of the Department of Police which also reported the commission of serious irregularities inas much as the aforesaid sale of the milk power had taken place, on 29th February, 1976 while the sanction for the same was accorded by the Govern ment on 16th April, 1976. On the receipt of the above police report the clarification in the matter was sought by the Government from Mr. A. R. Saleem appellant who was then working as Secretary, Education and happen ed to be also Rehabilitation Commissioner at the relevant time but the same having been found unsatisfactory disciplinary action was initiated against him under the Azad Jammu& Cashmir (Efficiency and discipline) Rules, 1977 (hereinafter referred to as Efficiency and Discipline Rules) by issuing show‑cause notice to him on 5^th August, 1978 in terms of rule 6(3) of the said rules under the signature of the Chief Secretary, which for the sake of reference is reproduced in extenso as under:‑--

The appellant submitted his reply to the show‑cause notice reproduced above in which it was pleaded that the milk powder donated to Azad Kashmir had remained in open at the Railway Station, Rawalpindi for a period of more than one month before the same was collected by the Re habilitation Organisation of Azad Kashmir, with the result that out of it 1,000 bags had been damaged and the milk powder therein had been spoiled having become solid like stone thereby becoming unfit for human consump tion and that on the written report of the Relief‑cum‑Storage Officer, Rawal pindi, dated 9th February, 1982 to that effect he had sent proposal, on 18th February, 1976 for the auction of the spoilt milk powder and deposit of its sale price in the refugees fund to the Government for its sanction. It was further alleged that the appellant himself examined the milk powder in the Godown in the 3rd week of November at Rawalpindi and found it giving bad smell and spoilt and that the matter was brought to the notice of the then Prime Minister at Rawalpindi who gave his verbal permission to proceed with the proposal to auction the spoiled milk saying that he would record formal sanction to the said proposal after his return to Headquarters and that it was after the said permission by the then Prime Minister that the spoilt milk powder, wheat and edible oil were sold to the highest bidder after calling quotations for the purpose. It was also alleged that the Prime Minister on his return to Headquarter gave sanction to the proposal for the sale of spoil milk powder and other com modities on 9th March, 1976 and the formal Government order to that effect was issued on 14th April, 1976. The correctness of the other allegations contained in the show‑cause notice was emphatically denied by him. On receipt of the reply of the appellant to the show‑cause notice he was given personal hearing by the then Chief Executive of the Government but having been found guilty of misconduct was compulsorily retired from service under the impugned Government Order, dated 30th April, 1979. The appel lant filed review petition against the order of his compulsory retirement before the respondent but was not successful as the same was rejected by the impugned order, dated 9th September, 1979.

Now the petitioner has approached this Tribunal for the redress of his grievances arising out of the aforesaid orders by way of present appeal.

The appeal has been resisted by the respondent by filing written state ments through its counsel in which it is alleged that the disciplinary pro ceedings against the appellant were taken lawfully in accordance with the relevant Disciplinary Rules and the impugned order of his compulsory retirement was made after he was found guilty of misconduct. The written arguments on behalf of the parties were also filed.

The order of the compulsory retirement of the appellant has been challenged in the memo. of appeal as well as written arguments filed by him on the following grounds: ‑

(i) That the show‑cause notice served on the petitioner was not issued by the competent authority as the Chief Secretary who had issued the same was not Authorised Officer in the case of the appellant being not an Officer in N. P. S. 22.

(ii) That the impugned order is not lawful because sub‑rules (3) and (4) of Rule 6 of Efficiency and Discipline Rules which were resorted to in a disciplinary proceedings against the appellant are ultra vires and void on account of being inconsistent with the clause 15 of subsection (4) of section 4 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 which guarantees that all State subjects are equal before law and are entitled to equal protection of law.

(iii) That in view of the circumstances of the case and the nature of the allegations made against the appellant in a disciplinary proceedings against him it was incumbent upon the Authorised Officer to have regular inquiry got conducted through Inquiry Officer or Inquiry Committee and thus by dispensing with such inquiry and instead having recourse to summary procedure of show‑cause notice he has not exercised discretion vested in him under rule 6 of the Efficiency and Discipline Rules properly and judiciously with the result that the order of his compulsory retirement proceeding on the adoption of such a procedure is unsustainable.

Now I proceed to take up the above grounds of attack on the impugned order one by one and to give decision thereon in the light of the facts of the case and the relevant law.

As regard the contention of the appellant that the show‑cause notice on him was not competently issued I do not find any substance in it. In this connection the grievance of the appellant is that the show‑cause notice under the Efficiency and Discipline Rules could only be issued by an Authorised Officer bat the Chief Secretary who had issued the show‑cause notice to him was not his Authorised Officer being not the Officer of the Grade 22.

It is, of course, correct that in view of notification No. S & GAD/ R‑80(1)77, dated 30th November, 1977 the Chief Secretary could only be the Authorised Officer of the appellant who was Grade‑20 Officer if he him self was an Officer in National Pay Scale No. 22 and that the then Chief Secretary not being Grade‑22 Officer was not the Authorised Officer in the case of the appellant. But the contention of the appellant that the Chief Secretary had issued the show‑cause notice to the appellant in his capacity as Authorised Officer is not factually correct as from the perusal of the show cause notice and the relevant file pertaining to the disciplinary proceedings against the appellant it becomes quite clear that it was the Government who had issued the show‑cause notice to the appellant and the same had only been signed on behalf of the Government through Chief Secretary. Thus, the objection of the, appellant regarding the show‑cause notice having not been issued by the competent authority is not substantial as the same having been issued by the Government which was Authority as well as the Authorised Officer in case of the appellant was perfectly valid and legal.

It is quite obvious that such a notice on behalf of the Government is to be signed by its some competent Officer and, therefore, the mere fact that show‑cause notice to the appellant was issued under the signature of the B then Chief Secretary in his capacity as the head of the Services did not render it invalid and unlawful.

In this view of the matter the above contention of the appellant is misconceived and unfounded.

The next ground of attack on the impugned order that sub‑rule (3) of rule 6 of the Efficiency and Discipline Rules which had been adopted in disciplinary proceedings against the appellant is ultra vires of the Constitu tion as the same being discriminatory, offends against the equality clause of the Constitution which guarantees all State subjects equality before law and equal protection of law has not equally impressed me. The above contention has been made on the ground that under rule 6 of the Efficiency and Discipline Rules authorised Officer has been given discretion either to get the inquiry conducted through the Inquiry Committee into the allegations against the civil servant in a disciplinary proceedings against him or by dispensing with the same only inform him of the action proposed to be taken against him alongwith the ground of such action and that in case of regular inquiry procedure to be followed and prescribed under rules 7 and 8 of the Efficiency and Discipline Rules is quite elaborate, just and fair while in case of dispensing with the regular inquiry the procedure to be followed and laid down in sub‑rules (3) and (4) is arbitrary, capricious, whimsical and capable of misuse according to the likes and dislikes of the Authorised Officer not controlled by any guidelines on the basis of reason able classification.

It is, of course, true that the cumulative effect of sub‑rules (2.) and (3) of the Efficiency and Disciplinary Rules is that in a disciplinary action against the civil servant the Authorised Officer is invested with discretion to decide as to whether or not a regular inquiry should be got conducted into the charges against him and in case the discretion so vested is exercised in favour of dispensing with the regular inquiry, the procedure then to be followed is summary in nature and shorter as compared to the one prescribed in case of regular inquiry which is quite elaborate but at the same time it cannot be said that the discretion given to the Authorised Officer to adopt shorter procedure of show‑cause notice is uncontrolled and unfettered depending upon the whims, caprices, likes and dis‑likes of the Authorised Officer but is subservient to and controlled by the definite guidelines provided in rules itself which confer upon him such a discretionary power.

It is a settled law that the reasonable and rational classification in legislation is permissible provided definite guidlines are laid down in such classification. In my view, the definite guidelines are provided in the relevant Efficiency and Discipline Rules under which a discretion is vested in the Authorised Officer to decide, as to whether or not a regular inquiry should be got conducted into the allegations against the accused civil servant in disciplinary proceedings against him. The sub‑rule (2) of Rule 6 un ambiguously provides that the Authorised Officer shall appoint Inquiry Officer or Inquiry Committee, if either the facts of the case or the interests of justice so demand and sub‑rule (3) of the said rule gives him the power to dispense with the regular inquiry and to have a resort to the show‑cause notice procedure only if neither the facts of the case nor the interests of justice make any such demand. In other words, it is, incumbent upon the Authorised Officer to have the inquiry conducted through Inquiry Officer or the Inquiry Committee into the allegations made against the accused civil servant being proceeded against departmentally in case either the facts of the case or interests of justice so require and he is empowered to do away with such regular inquiry only when he, after taking into consideration, both the facts of the case as well as the interests of justice, comes to the conclusion that the same is not at all, necessary and the adoption of shorter procedure of show‑cause notice would sufficiently meet the ends of justice with a view to conducting the disciplinary proceed ings speedily without unnecessarily wasting the time and energy likely to be consumed in the conduct of regular inquiry. Thus, the contention of the appellant that discretion vested in the Authorised Officer under sub‑rule (3) of rule 6 equips the Authorised Officer with the discriminatory powers of pick and choose among the same class of civil servants inasmuch as under it he has power to dispense with regular inquiry is devoid of any substance as it cannot be said that sub‑rule (3) of rule 6 confers upon the Authorised Officer discriminatory powers of pick and choose from the class of civil servant because such a power under the said rule is to be exercised keeping in view the clear and definite guideline provided for in the law itself. However the decision of the Authorised Officer to adopt show‑cause notice procedure is not conclusive and absolute. An order passed by the competent authority in a disciplinary proceedings is not final one but is subject to appeal before Services Tribunal and as such if the Authorised Officer commits any mistake by arbitrarily exercising his discretion in favour of making decision to dispense with the regular inquiry in a case of disciplinary proceedings against the civil servant then such a mistake can be rectified by the Service Tribunal in an appeal against the order impugned therein proceeding on the adoption of procedure as a result of the wrong exercise of such discretion. In this view of the matter the relevant rule in the Efficiency and Discipline Rules empowering the Authorised Officer to dispense with the regular inquiry and to adopt show‑cause notice procedure is not in any way void on account of being inconsistent and derogatory to the equality clause of the Constitution.

Now I proceed to examine the last contention of the appellant that the discretion exercised by the Authorised Officer in choosing the show‑cause notice procedure in his case, was not reasonable and proper as well as the interests of justice and as such the impugned order of his compulsory retirement is not sustainable. The above contention has much force in it. I have come to the above conclusion after taking into consideration the charges levelled against the appellant and the defence taken by him in regard to them. In para. 6 of the show‑cause notice, the following charges were made against the appellant :‑----

(a) That the appellant intentionally kept the milk powder at Rawal pindi from the month of August, 1975 to February, 1976 and did not send the same to Azad Kashmir for distribution with a view committing criminal misappropriation,

(b) That under Rules the appellant had no power to give permission for the sale of 1,000 bags of milk powder and if he had obtained any such permission from the higher authorities, the same was obtained when the scandle of its illegal sale had already come into light,

(c) That if it was unfit for human use in Azad Kashmir, then, how, it was sold at the rate of Rs. 155 per bag and consumed in Pakistan, '

(d) That according to the appellant, the milk powder had become unfit for human consumption but from the record, it was not found that its chemical examination was got carried out from any laboratory to determine its fitness or otherwise for human consumption.

The defence taken by the appellant to the above charges at seriatim in his clarification submitted to the Government in the matter before the initiation of disciplinary action against him and in his reply to the show cause notice was to the following effect :‑

(1) That he was not responsible for keeping the donated milk power at Rawalpindi from the date of its receipt upto January, 1976 as he had assumed the additional charge of the Department of Rehabilitation and Relief in the month of January, 1976 soon after which he had issued orders making allotment of the milk powder to various centres in the Azad Kashmir for distribution there.

(2) That the Store‑cum‑Relief Officer, Rawalpindi had sent a report to the appellant on 9th February, 1976 to the effect that 1,000 bags out of the milk powder stored at Godown at Rawalpindi had been spoiled due to the milk powder remaining in the open at Railway Station, Rawalpindi before being collected by the Azad Kashmir Relief Agency and had requested for the permission to auction the same on receipt of which he had submitted proposal for the auction of the spoiled milk and deposit of its price in the refugees fund to the Government for its sanction; that he later on himself found the said milk powder giving bad smell and unfit for use when he inspected the same in the Godown at Rawalpindi in the last week of February, 1976; that after being apprised of the con dition of the milk powder and other commodities the then Prime Minister who was at Rawalpindi on tour then had given his verbal permission for selling the spoiled milk powder and other com modities and had promised to accord formal sanction for such sale on his return to the Headquarter which was accordingly given on 29tb March, 1976 in pursuance of which, formal Government order was issued, on 16th April, 1976 and that after obtaining the aforesaid verbal permission the spoiled milk powder was sold to the highest bidder after calling quotations for the purpose.

(3) That from its very the milk powder looked to be spoilt as the same was giving bad smell and had become solid due to the moisture and thus no Laboratory test of the same was required to determine as to whether or not it was fit for human con sumption.

(4) That the milk powder found in the possession of one Anwar Ullah of Gangmandi, Rawalpindi during the Magisterial inquiry or that being sold in the open market was not the same milk powder which was auctioned to the said Merchant under the order of the appellant but was out of that milk powder which was allocated to the Local Administration, Rawalpindi for distribution to the Behari Refugees settled there and in respect of which news in the press had appeared earlier to the effect that 1,000 bags out of it were found missing and the same were being sold in the open market and that in order to cover up their own misdoings the concerned quarters of the Local Administration, Rawalpindi had shifted the responsibility of the illegal sale of the said milk powder on the Rehabilitation Agency of the Azad Kashmir.

As would appear from the charges made against the appellant in show cause notice and the reply submitted by him in respect of them in his defence and recapitulated above the following points emerged for deter mination in disciplinary proceedings against the appellant :‑---

(i) Whether the appellant 'was responsible for keeping the donated milk powder at Rawalpindi and not removing the same to Azad Kashmir for distribution to the needy and deserving persons with the ulterior motive of committing criminal misappropriation of the same.

(ii) Whether 1,00'0 bags of milk powder had been spoilt and rendered unfit for use on account of milk powder donated to Azad Kashmir remaining in open at the Railway Station, Rawalpindi for a con siderable period before the same .was handed over to the Relief Organization of the Azad Kashmir.:

(iii) Whether the milk powder was sold under the orders of the appellant after obtaining the verbal permission of the Prime Minister at Rawalpindi to do so and whether Prime Minister had committed himself to accord formal sanction to the proposal for the sale of the same moved by the appellant on his return to the Headquarters.

(iv) Whether the milk powder found in possession of the Anwar‑ul‑Haq at his shop in Ganjmandi, Rawalpindi was the same which was sold to him under the order of the appellant or it had been ob tained by him from other sources.

Now it is to be seen as to whether or not regular inquiry was necessary to be got conducted in a disciplinary proceedings against the appellant for coming to correct and right findings on the points formulated above as on such a &termination depends the decision on the objection of the appellant under consideration to the effect that the impugned order is invalid for having proceeded on the adoption of summary procedure of show‑cause notice.

After giving my anxious consideration to the above question I feel no hesitation in answering the same in affirmative as in the circumstances of the case I fail to visualise as to how it could be possible to arrive at righteous and just conclusions on the issues that arose out of the allega tions of misconduct against the appellant and his replies thereto and for mulated above without holding a detailed and thorough inquiry in the matter.

It is no doubt true that sub‑rules (2) and (3) of rule 6 of the Efficiency and Discipline Rules, 1977 confer upon the Authorised Officer the discretion either to get the regular inquiry conducted through Inquiry Officer or Inquiry Committee into the charges against the accused civil servant in a disciplinary proceedings against him or to only serve upon him the show cause notice informing him of the action proposed to be taken against him and the ground of such action but at the same time the discretion so vested is to be exercised is a judicious manner and not arbitrarily and in a, impetuous way having due regard to the guidelines provided in the relevant rules itself for the exercise of such discretion. I need hardly mentionl8 the settled principle of law that when in the public authority a discretion 1st vested by a statute the same is to be exercised judiciously and not capriciously and arbitrarily for good reasons to be recorded. As mentioned earlier the' discretion vested in the Authorised Officer to have recourse only to the show‑cause notice procedure by dispensing with the regular inquiry is not uncon trolled depending upon his whims and caprices but is subject to definite guid lines laid down in the relevant rules of Efficiency and Discipline Rules which is no uncertain terms lay down that if in the light of the facts of the case or in the interest of justice it is necessary to hold the regular inquiry into the charges against the civil servant then it is indispensable for the Autho rised Officer to appoint Inquiry Officer or the inquiry Committee to hold such an inquiry and when it is not thought to appoint Inquiry Officer necessary to do so that he is authorised to adopt show‑cause notice procedure.

Taking into consideration the nature of the allegations levelled against the appellant and the defence taken by him in disciplinary proceedings against him one cannot help coming to the conclusion that both in the light of the facts of the case as well as in the interest of justice it was unavoidable necessity that regular inquiry should have been got conducted into the: charges against the appellant and that the Authorised Officer in exercising his discretion in dispensing with such an inquiry and having recourse to shorter procedure of show‑cause notice has committed as error by not, exercising his discretion enjoyed by him in the matter legally, properly and reasonably. The charges against the appellant in the show cause notice could not be established merely by reference to record nor could be reasonably defended by him by just making a reply to them and thorough regular inquiry was needed to come to any definite and just conclusion as to the guilt or innocence of the appellant..

The sum total of the above discussion is that the Authorised Officer while making decision as to whether or not a regular inquiry was necessary to be got conducted into the charges against the appellant in a disciplinary proceedings against him has altogether ignored the principles and guide lines laid down in the relevant rules for the purpose and by dispensing with the regular inquiry and instead resorting to show‑cause notice procedure has failed to exercise his discretion in the matter in a proper and judicious manner as the aforesaid guidelines definitely called for the appointment of Inquiry Officer or Inquiry Committee for holding regular inquiry into the allegations against the appellant.

The above lapse on the part of the Authorised Officer prejudiced the appellant in‑his defence and has rendered the impugned order his compulsory retirement from service invalid and unlawful on account of having proceeded on the adoption of unjustified and improper procedure of show cause notice.

For the foregoing reasons, accepting this appeal the impugned orders ‑dated 30th April, 1970 are set aside and the case is remanded to the competent authority for proceeding afresh against the appellant in terms of rule 6(2) in the light of the above observations in accordance with law.

(i) There shall be no order as to costs.

(ii) The parties shall be informed of this order.

I agree.

A. E. Appeal accepted.

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