Find a Lawyer

Case No. 618/541 of 1983, decided on 26th June, 1984.

‑‑‑R.7(3)‑‑Departmental enquiry‑‑Evidence‑‑Statements of witnesses given in absence of accused transferred by Enquiry Officer on enquiry file‑‑Enquiry proceedings, in circumstances, held, wholly untenable.

‑‑‑ Disciplinary action‑‑Natural justice, principles of‑‑Justice not only to be done but it should be known that justice has been done Accused making specific allegations of malpractices against higher officer Such allegations yet under inquiry and accused charge‑sheeted on a complaint by same higher officer‑‑Enquiry against accused conducted by officer subordinate to complainant and complainant himself appearing as witness against accused‑‑Such officer, in circumstances, held, would definitely be under influence of his Superior and unable to do justice to accused‑Officer conducting enquiry against Senior officer on complaint of accused suddenly turning same enquiry against accused and holding accused guilty in preliminary enquiry against accused‑‑Accused consequentially dismissed from service‑‑Such sort of segment, held, cannot be allowed to sacrify fundamental principles of natural justice a Impugned dismissal order, in circumstances, set aside by Service Tribunal without touching merits and case remanded for fresh inquiry at discretion of competent authority and in case of fresh inquiry same directed to be conducted by an Officer Senior to Superior Officer against whom allegations made by accused (appellant)‑‑Service Tribunals Act (IX of 1974), S. 4.

M.M. Saeed Beg for Appellant.

A.G. Humayun, District Attorney for Respondent

.‑‑ Khadim Hussain Mauji has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Director of Fisheries, Punjab, Lahore and the Secretary to Government of the Punjab, Forestry, Wildlife and Fisheries Department, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders, dated 7‑7‑1983 and 15‑11‑1983, be set aside and he may be reinstated in service with all back benefits.

3. Brief facts of the case are that the appellant who was working in the Fisheries Department as Assistant Warden Fisheries, in January, 1982, made a report in writing to the Director of Fisheries when he was sent on tour to Vehari, against Mr. Abdul Rauf Khan, Assistant Director, Fisheries, Multan Division. The report was to the effect that the aforesaid officer had allowed and caused fishing from the prohibited zone of Head Islam during closed season 1981‑82 in league with the Fishing Contractor and had obtained illegal gratification thereby causing colossal financial loss to the Government. Upon his report Mr. Ghulam Muhammad Khan, Deputy Director, Fisheries, Central Fish Seed Hatchery Lahore, was appointed as Enquiry Officer for enquiring into the complaint of the appellant. An inquiry was held and appellant was examined. He also produced witnesses in support of the allegations whereas defence witnesses were produced by the aforesaid Mr. Abdur Rauf Khan. Meanwhile, before any result of the enquiry, the said Mr. Abdur Rauf Khan, on 4th April, 1982 lodged an F.I.R. at Police Station Anti Corruption, Vehari under sections 467/468, 471/420, P.P.C. read with section 5 of the Prevention of Corruption Act of 1947, against the appellant. The appellant was granted bail before arrest in the said case. The Anti‑Corruption Police investigated the case and so far no challan has been put upto the Court against the appellant although a period of more than 11 years has passed. On the basis of the allegations contained in F.I.R., a charge‑sheet, dated 7th November, 1982 was issued to the appellant containing four charges viz. (i) managed to lodge false complaints against his superiors for illegal gratification on account of illegal fishing; (ii) managed to enrol one Muhammad Siddique at Vehari at Nursery Unit without any authority; (iii) received Rs.1,330 as compensation fee through Mr. Jalal Shah of Head Islam and mis appropriated the amount and (iv) had taken over the charge of one challan Register and one Inspection Register at Islam Head-works and handed over only one register to his successor. Mr. Manzoor Ahmad, Assistant Director Fisheries, Sahiwal was appointed as Enquiry Officer who conducted the enquiry against the accused, recorded evidence of a number of witnesses and found the appellant guilty of all the charges. The Authority after affording him opportunity of personal hearing, found him guilty and imposed major penalty of dismissal. He filed appeal before the Appellate Authority which was considered and rejected. The appellant was informed accordingly vide letter, dated 15th November, 1983. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the impugned orders are liable to be set aside on the following grounds:‑‑

(1) That the entire enquiry proceedings so conducted by the Enquiry officer were violative of Law of Evidence, principle of natural justice and lack of personal hearing by the Authorised Officer.

(2) That the charge that he enrolled Muhammad Siddiq, Nursery Unit, Vehari was ill‑founded as there was nothing on the record to show that any enrolment was made by the appellant.

(3) That allegations of Rs.1,330 as compensation fee received through Jalal Shah in respect of challans and misappropriation of the same was false, as it has been established on record that the appellant did not receive any compensation fee as the challans against all the persons were received through the Court. Similarly the charge in not handing over the Inspection Register was also baseless.

6. On the other hand learned District Attorney has adopted the comments filed by the Department in extenso and' has submitted that every thing was done in proper manner and appellant was given personal hearing by the Authority, therefore, the impugned orders were liable to be maintained.

7. We have given our anxious thought to the arguments advanced by the parties and find that the first three contentions made by the learned counsel for the appellant are wholly correct. The perusal of the record of inquiry proceedings reveals that the Enquiry Officer transferred the earlier statements of the witnesses which they has made in the absence of the accused without recording their evidence in his presence and giving him chance of cross‑examination. In this way the inquiry proceedings are wholly untenable as these are in complete violation of Law of Evidence. We have also examined the grievance or the appellant that the Enquiry Officer who conducted the enquiry was subordinate to Mr. Abdur Rauf who was holding the charge of post of Assistant Director Fisheries, Multan including the charge of the post of Deputy Director Fisheries. This being so we have no hesitation to hold that the Enquiry Officer would definitely be under influence of his superior and would not be able to do justice to the accused. We are further surprised to find that at one stage Abdur Rauf appeared as witness against the appellant before the said Enquiry Officer. This has further strengthened our earlier observation that all along the Enquiry Officer was being over‑shadowed by the personality of Mr. Abdur Rauf who was not only complainant in this case of the appellant but also made his appearance as a prosecution witness. Learned District Attorney has not been able to rebut that the earlier enquiry was held on the complaint lodged by the appellant against Mr. Abdur Rauf with positive allegations of corruption and mal‑administration. What we further find is that the Enquiry Officer who wanted to make inquiry against Abdul Rauf suddenly turned the same inquiry into enquiry against the appellant as during the course of the said inquiry against the appellant a number of charges were levelled against him at the behest of said Mr. Abdul Rauf and himself. Despite this novel procedure adopted in this case we also find that the said Enquiry Officer although held the appellant guilty in his preliminary enquiry at the same time he did not exonerate Mr. Abdur Rauf and observed that he should be warned to be careful in future. This sort of segment cannot be allowed to sacrify the fundamental principle of natural justice.

8. We have also confirmed from the record that no compensation was received by the appellant as all the challans were to be put upto the Court, and has no connection into his conviction. While perusing the allegation of enrolment of one Muhammad Siddique, we find that it is not borne out from the record of this case as the said Muhammad Siddique was never paid from the Department and what actually happened was that Mr. Muhammad Siddique was in fact appointed by Mr. Abdur Rauf, Assistant Director whom the appellant had refused to accept and in his place Muhammad Ali was enrolled, for the reasons best known to him. Similarly charge that he failed to hand over Inspection Register at the time of handing over his charge we find that the said charge is nowhere explicitly made out. However, we will not touch the merits of the case other than what had, been said by him and would remand the case for fresh enquiry, if any, against him in the light of the obser vations made by us and in accordance with law of evidence. We will however, observe that if the authority decides to proceed against the appellant afresh, an officer senior than Abdur Rauf be appointed in this case following the golden principle of natural justice i.e. justice is not only to be done but it should be known that justice has been done.

9. The result is we accept the appeal, set aside the impugned orders and direct that the appellant be reinstated in service. The period of absence from duty from the date of his dismissal to the date of his reinstatement will be considered as leave of the kind due. There will be no order as to costs.

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.