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Case No. 665/378 of 1985, decided on 2^nd April, 1986.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1875‑‑---

‑‑‑

R.

6(3)‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Disciplinary action‑‑Dismissal from service on charge of misplacing of file‑‑No evidence of any sort was recorded by Enquiry. Officer to fix responsibility of delay in not putting up file to appropriate officer‑‑Enquiry Officer, held, failed to, apply his mind by not recording evidence of some official to out, whether file was missing in fact or it was only a case of delay in putting up said file‑‑Orders of Deputy Commissioner and Commissioner being based on enquiry report which itself was based on defective structure, would fall alongwith such report‑‑Service Tribunal, while re‑instating civil servant directed Authority to conduct regular inquiry in accordance with‑ law to find out responsibility of such civil servant.

Syed Jamshed Ali for Appellant.

A. G. Hummyun, District Attorney for Respondents.

S.ABDUL JABBAR KHAN (CHAIRMAN).--‑‑Muhammad Aslam, ex‑Junior Clerk, Office of the Deputy Commissioner, Sheikhupura, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he, has impleaded the Commissioner, Lahore Division, Lahore and the Deputy Commissioner, Sheikhupura, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders, dated 27‑5‑1985 of respondent No.2 and order, dated 10‑9‑1985 of respondent No.l be set aside and appellant be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant was posted as Revenue Ahlmad in the office of Assistant Commissioner Nankana Sahib. On 17‑8‑1980, thie appellaht received a file of miscellaneous complaint titled Ali Nawaz w. Khushi Muhammad etc. of village Lukre from the Resident Magistrate. The appellant placed it before the learned Assistant Commissioner immediately which was returned to the appellant on 7‑9‑1980 with his endorsement which was, dated 26‑8‑1980. On receipt of the said file from the learned Assistant Commissioner, the appellant entered it at serial No. 661 in the despatch register and then sent it to the office of the learned Deputy Commissioner on 9‑9‑1980. The said file was received in the English Branch of the D.C.'s office the same day on 9‑9‑1980, by Mr. Muhammad Aslam Kakar, Receipt Clerk. However, the said file was misplaced and was not put up before the learned Deputy Commissioner as ordered by him. The file was placed before him on 17‑12‑1980, by said Mr. Muhammad Aslam Kakar, when the learned Deputy Commissioner had asked the A.C. Nankana Sahib to trace the file and fix the responsibility. Vide order, dated 18‑12‑1980, the learned Deputy Commissioner appointed Resident Magistrate, Nankana Sahib as Authorised Officer to carry out inquiry in the case under the Punjab Civil Servants (E&D) Rules, 1975. In consequence of the said order Mr. Muhammad Musa, Resident Magistrate, Nankana Sahib, was appointed as Enquiry Officer. The Enquiry Officer conducted ex parte proceedings against the appellant and found that the appellant had failed to appear before him. No charge‑sheet was framed against the appellant. However, successor of Mr. Muhammad Musa, Mr. Abdul Hamid Durrani, R.M. framed charge‑sheet which served upon the appellant on 9‑4‑1984. The charge against the appellant was that the disputed file was 'received by the appellant on 17‑8‑1980 and that it was deliberately misplaced. The appellant submitted reply to the said charge‑sheet, on 22‑4‑1984. The learned Enquiry Officer recorded his order and held the appellant guilty of the charge. The appellant was heard by the Deputy Commissioner and was dismissed from service. 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 Department and have perused the entire record of this case carefully, with their assistance.

5. Learned counsel for the appellant has submitted that although a charge‑sheet was served upon the appellant containing charge of misplacement of file whereas the factual position which transpired from the record was that the file was very much available in the office and which was put up with delay to the learned Deputy Commissioner. It has been further submitted that although Mr. Muhammad Musa was

appointed by name as Enquiry Officer but the inquiry conducted by Mr. Abdul Hamid Durrani which was against the positive order of the learned Deputy Commissioner. With regard to the inquiry report it has been submitted that it is ex parte in nature without affording any opportunity of defence to the appellant. It has been further argued that the perusal of the inquiry report would show that this was sketchy and perfunctary in nature and has been arrived at without recording a single evidence against the appellant. T e grievance has been made that the appellant was guilty for not replying to the charge‑sheet which was traversity of facts. For example the charge

that he did not reply to the charge‑sheet stands disproved by the very fact that reply to the charge‑sheet was submitted two days later and it was incumbent upon the Enquiry Officer tot record evidence in his absence also if he was of the opinion that the appellant was not co‑operating in the inquiry proceedings and it had to be decided ex parte.

6. With regard to the order of the learned Commissioner, it has been held that it is hardly a speaking order without application of independent mind particularly when it is on record that file was never misplaced and it was available all the times.

7. On the other hand learned District Attorney has supported the order of the learned Deputy Commissioner as well as of learned Commissioner and has submitted that the appellant was given sufficient opportunity to defend himself but he failed to do so, therefore, the punishment awarded to him was fully justified.

8. We have given our anxious thought to the arguments advanced by the parties and find that the entire case of the appellant is based on the report of the Enquiry Officer, therefore, what we find is whether the inquiry conducted against the appellant was according to the rules or not. The perusal of the inquiry report reveals that the learned Enquiry Officer was of the opinion that the appellant was not co‑operating with him and had absented himself during the course of the said inquiry It is established fact on record that no evidence of any sort recorded by the Enquiry Officer to fix responsibility upon the appellant about the file in question. The representative of the Department has confirmed that file was never lost and it was very much on record. In view of this categorical statement, what the Enquiry Officer was expected to do, was to fix the responsibility of delay in not putting up the file to the Deputy Commissioner whereas the verdict so arrived at by him was that the file was missing. This clearly shows that the learned Enquiry Officer did not apply his mind as he recorded no evidence whatsoever and only disposed of the case by simply observing that "the case/enquiry is already very old and further delay in the matter is against natural justice". The right course for him would have been to hold ex parte proceedings against the appellant if he was of opinion that he had failed to appear before him and to record evidence of some official to find whether file was missing in fact or it was only a case of delay in putting up the said file. As both the orders of learned Deputy Commissioner and Commissioner are based on the findings of the Enquiry Officer which suffer from fatal defect as pointed out in the earlier part of our judgment, we are of the considered opinion that every order passed on this defective structure, would also fall alongwith

it.

9. In view of the above we proceed to accept the appeal, set aside the impugned orders and remand the case with the direction that regular inquiry as ordered by the learned Deputy Commissioner in this case should be conducted in accordance with the rules laid down in this behalf and then, if the appellant is found guilty of whatever misconduct. he can be dealt with accordingly. The fact remains that file is available and the very charge so levelled against him was defective in its essence as it indicates that the file has been misplaced. The appellant be re‑instated in service to clothe him with the status of civil servant. The period of his remaining out of service should also be decided by, the Authority itself. There will be no order as to costs.

A.A Appeal accepted.

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