Find a Lawyer

Appeal No. 15(K) of 1983, decided on 30th January, 1985.

‑‑‑Rr. 6 & 8‑‑"Oral enquiry"‑‑Accused and co‑accused examined separately in absence of each other‑‑Documents produced by departmental Officer examined‑‑Neither such departmental officer nor any other witness examined in presence of accused nor documents examined in presence of accused and accused not confronted with such documents‑‑Record of proceedings not prepared and maintained‑‑Enquiry, in circumstances, held, cannot constitute an "oral enquiry" as per requirements of rules‑‑Infirmities causing material and serious prejudice to accused hence, held, vitiated entire proceedings rendering order passed thereon as unlawful, incompetent and void.

‑‑‑ Disciplinary action‑‑Delay‑‑Proceedings initiated ten years after alleged commission of misconduct and authorities further taking ten years more to decide departmental appeal‑‑Service Tribunal, in circumstance, taking notice and describing same as "most unfortunate aspect of the case"‑‑Service Tribunals Act (LXX of 1973), S. 4.

Muhammad Nasim for Appellant.

Niaz Ahmed Khan for Respondents.

Date of hearing: 17th January, 1985.

‑‑ The appellant then an Overseer in the respondent‑Department, was served with a charge‑sheet, dated 4‑8‑1970 for the allegations that while he was attached to the Central Civil Division No. 1, Pak. P . W. D. Rawalpindi, as Overseer In charge of Stores, at the time of his transfer, failed to hand over material to his successor, according to the book balances, and also failed to submit proper handing over notes/physical verification report of stores to the higher Authorities, whereas a huge shortage of stores worth Rs.56,100 was found on physical verification of ground balances with the book balances maintained by him. He submitted a reply to the charge‑sheet denying and refuting the allegations levelled therein.

2. Mr. Amanullah Khan, then Executive Engineer, Central Division of the respondent‑Department, was appointed as Enquiry Officer who submitted his enquiry report, dated 15‑7‑1971 wherein he held the appellant guilty of the charges. Thereupon the Chief Engineer, Pak. P.W.D., vide his order, dated 28‑11‑1972 awarded to the appellant the penalty of recovery of the pecuniary loss caused to the Government amounting to Rs.28,050. He filed a departmental appeal on 12‑2‑1972 which was rejected as intimated to him vide department's letter, dated 28‑11‑1982. He then filed the present appeal.

3. A preliminary objection on behalf of the respondent‑Department was taken that the present appeal is time‑barred. It was contended by the appellant that the final appellate order, dated 28‑11‑1982 was delivered to him on 29‑1‑1983. In support of his contention he produced the postal envelope which clearly showed that the said letter was posted from Islamabad on 22‑1‑1983 and was received in Karachi Post Office on 26‑1‑1983. No wonder, when the learned appellate authority look a long time of ten years to decide the appeal, it had taken a few weeks in posting the letter. In any case, accepting the contention of the appellant, we hold the appeal to be in time and proceed to examine it on merits.

4. It is to be seen that according to rule 6 read with rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1960, in force at the relevant time, in an enquiry there-under, the evidence must be heard orally and the accused Government Servant should be given opportunity to cross‑examine the witnesses appearing against him and to summon witnesses in defence. In the instant case, the Enquiry Officer merely examined the appellant and his co‑accused separately and considered the documents made available to him by the Assistant Administrative Officer of the Department. Neither the said Assistant Administrative Officer nor any other witness was even examined in the presence of the appellant, what to speak of providing an opportunity of cross‑examination. Also, the documents relied upon by the Enquiry Officer were not properly examined in presence of the appellant, nor he was confronted therewith. No proper record of proceedings was prepared and maintained. In such a position merely recording the statement of the accused persons in the absence of each other and basing the enquiry findings only on the material on record, without confronting the accused‑appellant therewith, and that too without affording the accused‑appellant a reasonable opportunity to adduce his defence, cannot constitute an "oral enquiry" as envisaged and required under rule 6 read with rule 8 ibid. The learned counsel for the respondents frankly conceded that the enquiry proceedings do suffer from certain infirmities but it so happened due to much delayed initiation of the proceedings. In any case, the infirmities apparent on the face of the record, as aforesaid, had caused material and serious prejudice to the appellant and, therefore, vitiated the entire proceedings, rendering the impugned order passed thereon, as unlawful, incompetent and void.

5. Apart from the above, there was no direct evidence or even any material on record to suggest that the appellant was responsible for the shortage of stores. The finding of the Enquiry Officer holding the appellant guilty of the charge was, therefore, based on no evidence.

6. It was also prayed on behalf of the appellant that the injustice done to the appellant by wrongly withholding his promotion may also be removed. Since, however, this appeal was filed against an order passed under the Efficiency and Discipline Rules awarding a penalty to the appellant, his claim relating to promotion cannot be adjudicated herein. If the appellant is aggrieved on that account, he may, if he so wishes, seek, proper remedy available to him under the law.

7. Before concluding we would like to highlight the most unfortunate aspect of the case that the proceedings against the appellant were' initiated about ten years after the alleged commission of offence by him and the relevant authorities had taken further ten years to decide his departmental appeal. We, however, leave it for consideration of those in the Government hierarchy who are administratively concerned with the matter.

8. For the foregoing reasons, the appeal is accepted and the impugned order is set aside.

A. E. Appeal accepted.

Find a Lawyer Near You

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