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Civil Appeal No. 25‑K of 1982, decided on 22nd January, 1986.'

(Against the judgment of the Sind Services Tribunal, Karachi, dated 6‑7‑1981 in Appeal No. 56 of 1979).

‑‑‑Art. 212(3)‑‑Sind Civil Servants (Efficiency and Discipline) Rules, 1973, r. 5(4)(a)‑‑Dismissal from service‑‑Misconduct‑‑Leave to appeal granted to consider inter alia whether Authority had any powers under r.5(4)(a) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973 to interfere with an order of authorised officer competently passed exonerating appellant of charges inquired into by him.

‑‑Rr. 5(4)(a) & 10 (A)‑‑Dismissal from service‑‑Petitioner suspended on charge of misconduct‑‑Exonerated by Authorized Officer and recommended to be re‑instated‑‑Same person who had suspended petitioner and initiated enquiry against him, imposed major penalty of dismissal from service‑‑Order impugned‑‑Allegation of bias‑‑Plea that Authorized Officer having exonerated petitioner of all charges, it was not open to Authority to substitute that order by an order of dismissal, not sustained‑‑Order of Authorized Officer being merely a recommendation could not be taken to be a final order‑‑Authority could take such action in accordance with procedure prescribed in r.10(A)‑‑Such power in any case was to be exercised after affording an opportunity of hearing to the affected civil servant‑‑Bias being established on record, appeal accepted with costs and order of dismissal set aside.

‑‑‑R. 5(4)(a)‑‑Dismissal from service‑‑Bias‑‑Authority, being involved and interested person, suspending appellant, initiating enquiry against him and passing final order of his dismissal over ruling recommendation of Authorized Officer‑‑Bias visible in proceedings of a nature to vitiate proceedings‑‑Order of dismissal set aside and appeal allowed with costs.

S.M. Abbas, Advocate‑on‑Record for Appellant.

A. Sattar Shaikh, Additional Advocate‑General Sind with Muzaffar Hassan, Advocate‑on‑Record for Respondents Nos. 1 to 3.

Respondent No. 4: Ex parte

Date of hearing: 22nd January, 1986.

Leave to appeal was granted under Article 212(3) of the Constitution to examine, inter alia, whether the Authority had any powers under rule 5(4)(a) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the Rules) to interfere with an order of the Authorised Officer competently passed exonerating the appellant of the charges inquired into by him.

2. The appellant, who was a Junior Clerk Sector‑II under Rationing Controller IV was placed under suspension with immediate effect for misconduct on 4th of July, 1978 by an order passed by Mian Bahadur Shah, Deputy Director Food, Karachi Region. The Authorized Officer, an Assistant Director Food, Karachi, served on him a show‑cause notice, dated 29‑7‑1978. The sum and substance of the charges was that he had been making wild allegations against his superior officers and making applications to the higher authorities outside the department and also releasing information to the newspapers thereby rendering himself liable to major penalty. In his defence in reply to the show‑cause notice, he stated that his complaints were no doubt directed against the malfunctioning of his own department and he had at first submitted it in writing to the Rationing Controller IV under whom he was then serving. It was only on his refusal to entertain or accept it as it contained allegations against Mian Bahadur Shah, Deputy Director Food that he as a measure' of last resort sent it to other officers. The contents of those applications, according to the appellant, were all correct.

3. An inquiry was held by the Authorized Officer into his conduct who concluded his report in the following words:‑

"In view of the circumstances discussed above, the only proper course for the undersigned is to exonerate Mr. Muhammad Hanif Niazi for having made direct applications to the higher authorities which were under compulsion of necessity and in the interest of the Government. The two charges stand disproved as discussed above. It is accordingly recommended that Mr. Niazi suspended since 4‑7‑1978, may be re‑instated treating suspension period as leave subject to title."

4. By an order, dated 4‑9‑1978, Mian Bahadur Shah, Deputy Director Food, Karachi dismissed him from service with immediate effect. The operative part of his order relevant for the purposes of this appeal is contained in clauses (4) and (5) reproduced hereunder:‑

"(4) And whereas the order No. ADM/E‑13/78, dated 12th September, 1978 passed by the Authorised Officer's order having been vacated the Authorised Officer's order is found to be infructuous and void as the Authorised Officer is not competent to pass such order in cases involving gross misconduct and where major penalty is proposed to be awarded to the accused and hence the said order is hereby vacated.

(5) And whereas after taking into consideration the reply of the said Mr. Muhammad Hanif Niazi and the order No. ADM/E‑13/78, dated 12‑9‑1978 passed by the .Authorized Officer having been vacated the Authority is satisfied that a major penalty should be imposed on Mr. Niazi.

Now, therefore, in exercise of the powers conferred by sub‑clause (4) of Rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules the said Mr. Muhammad Hanif Niazi, Junior Clerk is hereby dismissed from Government Service with immediate effect."

5. A departmental appeal to the Director Food and an appeal to the Service Tribunal proved of no avail to him.

The learned counsel for the appellant contended that it was a case of an all pervasive bias floating on the record and it vitiated the order passed by the Deputy Director Food Mian Bahadur Shah as the very basis of the complaint and the grievance of the appellant was personally against him and his deeds in the department. Besides, according to the learned counsel for the appellant, the Authorized Officer having exonerated the appellant of all the charges, it was not open to the Authority to substitute that order by an order of dismissal.

7. So far as the specific point of law on which this appeal was, admitted for hearing is concerned, we find that it cannot prevail. The order of the Authorized Officer reproduced above itself shows that it was an order making a recommendation and not an order deciding the, matter. What is expressed to be tentative and has to be finalised after an order of the competent Authority cannot be taken to be a final order.

8. Besides, in addition to the intrinsic effect of the order of the' Authorized Officer itself, we find that there is a provision in rule 10(A) of the Rules whereby the Authority can be entrusted with the power of correcting errors and improprieties of finding, penalty, order, or any irregularity in proceedings under the rules. This power in any case is to be exercised after affording an opportunity of hearing to the affected civil servant. The power was not lacking. The procedure prescribed was, however, not followed, if at all it is taken to be a case under rule 10(A).

9. The record of the proceedings does in fact bear out the first contention of the learned counsel for the appellant. The complaint of the appellant for which he was charged related to Mian Bahadur Shah and his conduct of the affairs of the department. It was Mian Bahadur Shah, the Deputy Director Food who suspended him, initiated the inquiry against him and passed the final order of his dismissal overruling the recommendation of the Authorized Officer. The bias visible in the proceedings is indeed of a nature to vitiate the proceedings and we are left in no manner of doubt about it. This appeal is, therefore allowed with costs and the judgment of the Service Tribunal as well as the order of dismissal of the appellant is set aside. However, it will be for the competent authority other than Mian Bahadur Shah to examine the case afresh free from any such bias as has been detected in the proceedings.

M.I. Appeal allowed.

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