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(On appeal from the judgment/order of Service Tribunal Punjab, Lahore, dated 10‑10‑1983 in Case No. 25/11 of 1983).

(a) Constitution of Pakistan (1973)‑

‑‑Art. 212‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, rr. 4(1)(b), 6(4), 7(8) & 8‑Misconduct‑Major penalty‑Leave to appeal granted to examine questions : "Whether it was not incumbent on Inquiry Officer under Rules, after finding accused guilty to propose punishment so as to furnish opportunity for showing cause against it ; whether statement of a co‑accused found by Inquiry Officer to be equally guilty with accused, could be used against the accused : whether in absence of direct evidence against accused, circumstantial evidence including exculpatory element in statement of an official of concerned Department was sufficient to find accused guilty ; and, whether accused was not guilty only of negligence and if so whether Service Tribunal should not have reduced punishment.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑

‑‑‑ Rr. 4, 6(4), 7(8) & 8‑‑Misconduct‑Major penalties‑‑Second show‑cause notice‑Requirements.

The civil servant was served with the second show‑cause notice wherein award of a major penalty' was mentioned. The point sought to be made by the accused (civil servant) was that it was not enough to do so‑'the penalty' which was ultimately awarded namely dismissal from service, should have been mentioned. The requirement regarding second show‑cause notice in rule 8 is that before imposing a major penalty' the accused shall be afforded another opportunity of being heard: This as is apparent from rule 6(4) and rule 7(8) shall happen when 'a major penalty' is proposed to be .imposed. It means nothing else than that whenever there is a proposal for awarding any one of the major penalties, the accused shall be heard about it. It is during this hearing and indeed after taking note of what transpires during this hearing that the final shape of penalty would in reality emerge. Thus, it will not be illegal, to inform the accused that a major penalty or one of the major penalties is proposed to be awarded. Nor indeed it will be wrong in a proper case to notify to the accused the major penalty out of several permissible under the law. It is so because it will be open to the authority concerned to modify the proposed penalty after hearing the accused on the severity and nature of punishment. There is no difficulty in applying the rule in this manner which satisfies all means of fair-play and justice.

Malik Muhammad Jafar, Advocate Supreme Court instructed by Ch. Akhrar Ali, Advocate‑on‑Record for Appellant.

M. Nawaz Abbasi, Asstt. A.‑G. and Rao M. Yousaf Advocate‑on -Record for Respondents.

Date of hearing : 19th February, 1986.

MUHAMMAD AFZAL ZULLAH, J.‑

This appeal through leave of the Court is directed against judgment dated 10‑10‑1983 of the Punjab Service Tribunal ; whereby the appeal against dismissal from service filed by the appellant, was dismissed.

Facts on which leave to appeal was sought are 'that a case under section 382, P. P. C. was pending against Mirza Muhammad Akbar and Soofi Muhammad Ayub in the Court of Assistant Commissioner. Gujar Khan. The case was initiated on the report of one Muhammad Nazir. Muhammad Nazir complainant applied before the District Magistrate, Rawalpindi, on 27‑8‑1980 for the withdrawal of the case under section 494, Cr. P. C. At that time, the appellant was Criminal Moharrir in the Court of District Magistrate. The District Magistrate allowed the withdrawal of the case vide his order dated 6‑12-1980. When the original file of the case was received back by the Assistant Commissioner before whom the case was pending, it was noticed that some of the important papers were missing from it. These missing papers included the evidence of two witnesses and the previous order rejecting the withdrawal on a prior application, by the District Magistrate. It was also noticed that an attempt had been made to rub off the very first page of the challan by ink where an indication was available that two witnesses had been examined. The Assistant Commissioner brought these facts to the notice of the District Magistrate.

The appellant was served with a charge‑sheet by the Deputy Commis sioner on 6‑6‑1981. Mr. Nazir Ahmad Chaudhry, Extra Assistant Commissioner, Rawalpindi was appointed as Inquiry Officer and the appellant was called upon to give his explanation within 14 days of the charge‑sheet, to the Inquiry Officer. The appellant gave his explanation on 18‑1‑1981. He requested that be afforded an opportunity of being beard in person and also of producing evidence in his defence. Before the Inquiry Officer the prosecution examined four witnesses. The Inquiry Officer submitted his report wherein he carne to the conclusion that the charges were proved against the appellant and one Muhammad Yousaf, a Senior Clerk of District Attorney.

On the receipt of the report of the Inquiry Officer, the Deputy Commissioner served a final show‑cause notice on the appellant, on 7‑9‑1981. Inquiry report dated 22‑8‑1981 was also supplied to the appellant but an earlier report was not supplied. The Deputy Commis sioner, on the same day, wrote a Letter No. 875 to the Solicitor to Government of Punjab, stating that in the course of Departmental inquiry against the appellant it was held by the Inquiry Officer that Muhammad Yousaf Senior Clerk to District Attorney Rawalpindi, was also guilty of the charges. The Deputy Commissioner referred the matter of the Senior Clerk to District Attorney to the Solicitor because he was not the appointing authority of the Senior Clerk.

The appellant submitted his reply on 20‑9‑1981. The Deputy Com missioner vide his order dated 9‑11‑1981, dismissed .the appellant from service with immediate effect. He challenged this order before the Commissioner. Rawalpindi Division, on 28‑11‑1981, The Commissioner vide his order dated 1‑12‑1982 dismissed the appeal. The appellant challenged his order of dismissal before the Service Tribunal on 15‑1‑1983, through an appeal. The Tribunal dismissed the appeal, vide his order dated 10‑10‑1983. The order was communicated to the appellant by a memo. dated 11‑10‑1983.

Leave to appeal was granted to the appellant to examine the questions: "whether it was not incumbent on the Inquiry Officer under the rules, after finding the appellant guilty to propose the punishment so as to furnish opportunity for showing cause against it ; whether the statement of co‑accused found by the Inquiry Officer to be equally guilty with the appellant, could be used against the appellant ; whether in absence of direct evidence against the appellant, the circumstantial evidence including the exculpatory element in the statement of the Quasid of Deputy Attorney's office was sufficient to find the petitioner guilty ; and, whether the petitioner was not guilty only of negligence and if so whether the Tribunal should not have reduced the punishment".

It will be appropriate here to reproduce the findings of fact reached by the Service Tribunal whereby the orders passed by the Deputy Commissioner and the Commissioner on merits of the pleas of the appellant, were confirmed. They read as follows:

"We are further strengthened in our view by the fact that the search made on the first day by the appellant in the presence of the clerk of the District Attorney was his abortive attempt and it was only when the clerk of the District Attorney Muhammad Yusaf was busy in disbursing the pay that the appellant got a chance to commit the mischief. Although the learned Deputy Commissioner has not clearly mentioned that aspect of the case, which would be very much relevant in holding the appellant guilty, we point out the same after gong through the record i.e. that the appellant being the Incharge of the criminal work of the District Magistrate, was the only person who could help the accused to achieve their end and not the clerk of the District Attorney who was not in a position to handle the case before the District Magistrate. He is only connected with the office of the District Attorney who is nothing but a recommendatory officer and the final say was with the District Magistrate, whose dealing clerk was the appellant and none else. After carefully assessing the arguments so given in support of their conclusion by the learned Deputy Commissioner arid the Commissioner, we are fully satisfied that the same are convincing and the same two officers have taken pains to sift the evidence in a judicious manner without any ambiguity."

Learned counsel for the appellant, in order to highlight some of the points on which .lave to appeal was granted has taken us through the evidence. He has, as a basic argument, also tried to show that the appellant was not guilty of misconduct and that in any case it was only negligence for which he might have been dealt with leniently.

The findings by the concerned authorities and the Tribunal are to the contrary. There is nothing in those findings which should impel us to examine this argument in the face of the bar contained in Article 212 of the Constitution namely ; that, no appeal shall lie to the Supreme Court except on substantial question of law and that too of public importance. As the appellant, on facts cannot be held guilty only of negligence, therefore, it is not possible to give any benefit to him on the last point in the leave granting order.

Learned counsel vehemently argued the first point ; namely that, it was incumbent under the rules, after finding of guilty, to inform the appellant about the punishment of dismissal from service, so as to furnish him an opportunity of showing cause against the proposed penalty.

The provision relied upon by the learned counsel in rule 4(1)(b) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which reads as follows : ‑

"14. Penalties.‑(1) . . . . .

(a).....

(b) Major Penalties :‑

(i) reduction to a lower grade or post or time‑scale or to a lower stage in a time‑scale ;

(ii) Compulsory retirement ;

(iii) removal from service ; and.

(iv) dismissal from service."

The stress of the learned counsel is on the plurality of punishments under the heading : "Major Penalties". The argument is that in case of major penalties, the one to be awarded must be mentioned in the show -cause notice.

It is admitted position that the appellant was served with the second show‑cause notice wherein award of a 'major penalty' was mentioned. The point sought to be made by the learned counsel is chat it was not enough to do so ‑"the penalty" which was ultimately awarded namely, dismissal from service, should have been mentioned.

The argument is without force. The requirement regarding second show‑cause notice in rule 8 is that before imposing a major penalty' the accused shall be afforded another opportunity of being heard. This as is apparent from rule 6(4) and rule 7(8), shall happen when a 'major penalty' is proposed to be imposed. It means nothing else than that whenever there is a proposal for awarding any one of the major penalties, the accused shall be heard about it. It is during this hearing and indeed, after taking note of what transpires during this hearing that the final shape of penalty would in reality emerge. Thus, it will not be illegal, to inform the accused that a major penalty or one of the major penalties is propose to be awarded. Nor indeed it will be wrong in a proper case to notify to the accused the major penalty out of several permissible under the law. It is so because it will be open to the authority concerned to modify the proposed penalty after hearing the accused on the severity and nature of punishment. There is no difficulty in applying the rule in this manner which satisfies all means of fairplay and justice. The argument accordingly is repelled.

The remaining two points in the leave granting order were not pressed by the learned counsel to their logical ends after he was told that they relate to findings of fact and appreciation of evidence. Otherwise too they are without merit and are not worth discussion any more.

This appeal fails and is accordingly dismissed.

M. B. A. Appeal dismissed.

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