Find a Lawyer

Case No. 53/42 of 1983, decided on 26th October, 1983.

‑ R. 6 (3)‑Misconduct by Civil Servant‑Issue of show‑cause notice instead of a regular enquiry not appropriate and not within spirit of Rules‑Opportunity not given to produce defence witnes ses‑Held : Order of removal from service not valid.

‑ Punishment‑'Competent Authority'‑ Deputy Commissioner being appellate authority not competent to award punishment in case of Naib‑Qasid.

Akhtar Mir Warsi for Appellant.

A. G. Humayun, District Attorney for Respondents.

Date of hearing : 26th October, 1983.

Abdul Majid Naib‑Qasid, English Record Office of the Deputy Commissioner, Gujranwala has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein has impleaded Commissioner, Lahore Division, Lahore and Deputy Commissioner, Gujranwala as respondents.

2. By virtue of this appeal, the appellant has prayed that impugned order, dated 12th June, 1982 passed by respondent No. 1 and order dated 24th May, 1982 passed by respondent No. 2 be set aside.

3. Brief facts of the case are that the appellant was served with a show‑cause notice, dated 18th February, 1982 under rule 6 (3) of the Efficiency and Discipline Rules, 1975 by the Deputy Commissioner, Gujranwala as detailed vide Annexure D'. A reply was submitted by the appellant to this show‑cause notice as per Annexure E'. The reply of the show‑cause notice was considered by respondent No. 2. The appellant was also heard in person and was removed from service with immediate effect vide order, dated 24th May, 1982 of respondent No. 2. The appellant made an appeal to respondent No. 1 which was dismissed vide his order, dated 12th June, 1982. Hence this appeal.

4. We have heard the parties. It has been argued by the learned counsel for the appellant that the appellant has been punished mainly on the allegation that he was required to deliver two letters to Brig. (Retd.) Muhammad Asghar, Member, Majlis‑e‑Shoora and he failed to deliver the letters to the addressee and forged the signatures in token of having received the letters. This allegation was of such a nature that it needed an inquiry to prove the allegation against the appellant but the appellant was served with a show‑cause notice only under rule 6 (3) of the E & D Rules. No enquiry was held and the appellant was not afforded an opportunity to produce witnesses and defend himself. Thus, the appellant has been prejudiced in the matter. The learned counsel for the appellant has also contended that the letters in question were duly delivered. In support of his contention, he has produced an acknowledgement of the concerned persons (Photo copy‑Annexure'C‑1'). Relying on this docu ment, he has rebutted the allegation that the signatures of the recipients were forged and bogus. It has also been pointed out by the learned counsel for the appellant that similarly in the case of 2nd allegation mentioned in the show‑cause notice, the appellant was not allowed to produce his defence upto his satisfaction. He has submitted that the appellant has been punished in haste, without proving the allegations against him and the impugned orders are unjustified and unlawful.

5. The learned counsel for the appellant has also taken a stand that the Deputy Commissioner, Gujranwala, is not the competent authority to punish the appellant under the Board of Revenue Delegation of Power Rules, 1958. As per these Rules, the Deputy Commissioner is not the competent authority to award punishment to the appellant, but he is an appellate authority only. Thus, the order of removal from service passed by the Deputy Commissioner is without jurisdiction and unlawful.

6. On the other hand, the learned District Attorney has relied upon the parawise comments submitted by the respondents and also has referred to the detailed impugned order of respondent No. 2, dated 24th May, 1982. He has pointed out that the misconduct of the appellant stood proved, hence he has been punished correctly. As the appellant had himself acknowledged his guilt and sufficient evidence was available on record, thus, issue of the show‑cause notice under rule 6 (3) of the E & D Rules, 1975 was sufficient and dispensing with of the enquiry in this case by the authority was in order. He has also contended that according to the Powers Delegated to the Deputy Commissioner, he is the competent authority in the case of the appellant. The impugned order passed y respondent No. 2 is a valid and lawful order.

7. We have given our anxious thought to the arguments put forth by the parties and have also perused the record carefully.

8. A photo copy of acknowledgement showing signatures of the recipient (Annexure 'C‑1') has been produced before us by the learned counsel for the appellant at the time of having the arguments. A stand has been taken by him that the signatures of addressee taken in token of having delivered the so‑called letters are actual and correct. He has also pointed out that this very stand was taken by the appellant before respon dent No. 2 at the time of his personal hearing. Respondent No: 2 had not verified the stand of the appellant and also did not allow the appellant to produce his witnesses or defence to prove his innocence. After studying pros and cons of the case, we are of the considered opinion that the allega tions were of such a nature that these needed a thorough probe by holding a regular enquiry so that the appellant could avail an opportunity of producing the witnesses/defence to prove his innocence. Hence resorting to a service of a show‑cause notice under rule 6 (3) of the Punjab Civil Servants (E & D) Rules, 1975 by dispensing with of a regular enquiry is not appropriate and within the spirit of the Efficiency and Discipline Rules.

9. We have already held in Case Nos. 413/1614 of 1981 Alta Ullah v. State and 414/1615 of 1981 Atta Ullah v. State that Deputy Commissioner is not the competent authority under the Board of Revenue Delegation of Powers Rules, 1958 applicable in the case of a Naib.Qasid. According to Sr. No. 13 of schedule appended to these rules, "the authority" and "Authorized Officer" in the case of a Naib‑Qasid bas been prescribed as C. S. P. or P. S. C. Officer to whom the Deputy Commissioner may appoint and the Deputy Commissioner himself is the appellate authority in case of major punishments. Thus, the competent authority to remove the appellant from service is a C. S. P. or P. C. S. Officer to whom the Deputy Commissioner may appoint. Hence, the impugned order, dated 24th May, 1982 passed by Deputy Commissioner, Gujranwala is not a valid order and is without jurisdiction and is unlawful.

9. In view of the above analysis of the case, we set aside the impugned order accept the appeal and remand the case to Deputy Com missioner, Gujranwala to proceed afresh against the appellant keeping in view the above observations so made by us. The appellant shall be rein stated in service to bestow upon him the status of civil servant to enable the Deputy Commissioner, Gujranwala to proceed against the appellant. The fate of the period for which the appellant remained out of service will also be decided by the competent authority after proceeding de novo against the appellant as mentioned above.

There will be no order as to costs.

M. I. Appeal accepted. Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.