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Appeal No. 139(K) of 1983, decided on 3rd July, 1986.

‑‑‑R. 6‑‑Punishment‑‑Order of punishment passed by an officer in absence of prior notification regarding designating authority was not sustainable.

‑‑‑R. 6‑‑'Authority' not to perform functions of 'Authorised Officer' when some other person was already authorised to perform function of 'Authorised Officer'‑‑If no other officer was authorised to perform functions of 'Authorised Officer' then 'Authority' could assume functions of 'Authorised Officer'‑‑Intention of rules is to give protection to accused officer so that his case may be examined at more than one stage and in case of performing functions of 'Authorised Officer' by 'Authority' when a different officer stood designated as 'Authorised Officer' accused officer would be deprived of that double check provided by law‑ 'Authority' framing charge‑sheet when there was some other officer authorised to perform function of Authorised Officer, held, acted incompetently which vitiated entire proceedings based thereon.

‑‑‑R. 6‑‑Compulsory retirement‑‑Appellant's request for examination of concerned officers not acceded to by Enquiry Officer‑‑Appellant also deprived of opportunity of personal hearing‑‑Proceedings against accused appellant, therefore, suffering from patent legal infirmities and serious lacunas‑‑Order of compulsory retirement of appellant set aside and appellant reinstated in service.

‑‑‑R. 6‑‑'Reasonable opportunity' to defend‑‑Statutory guarantee, providing a reasonable opportunity to defend founded on principle of natural justice and clearly intended to protect civil servant against loss of status by a capricious and arbitrary action‑‑A civil servant, held, would be entitled to a full and thorough enquiry into charges bye ore being deprived of his status as a civil servant.

‑‑‑R. 6‑‑Phrase 'personal hearing', connotation of‑‑'Personal hearing' held to a part of reasonable opportunity guaranteed by law‑‑Personal hearing enables authority concerned to watch demeanour of witnesses and clear up his doubts during course of arguments advanced by accused officer to persuade authority by reasoned argument to accept his point of view.

S.H.H. Naqvi for Appellant.

Niaz Ahmed Khan for Respondents.

Date of hearing: 11th January, 1986.

‑‑By virtue of this appeal the appellant seeks to challenge the order, dated 16‑8‑1983 whereby he was compulsorily retired from service as art Examiner under the Government Servants (Efficiency and Discipline) Rules, 1973.

2. The learned counsel for the appellant to assail the impugned order raised a number of grounds. His first emphasis was that the Manager, Personnel and Administration Department (hereinafter referred to as respondent No. 2) who had passed the impugned order of compulsory retirement was not properly designated as an Authority, hence, the impugned order is without jurisdiction.

3. The respondent‑department failed to produce any proper notification in this regard. Quite obviously, a punishment order passed by an officer in the absence of a proper notification regarding designating authority is not sustainable. However, a circular letter, dated 21‑9‑1976 issued by respondent No. 2, was placed on record on behalf of the respondent‑department. Para. 2 of the said circular letter reads as under: ‑‑

"2. The following officers have now been designated as Authority (Former Appointing Authority) and Authorised Officer (former designated Authority) under Rule 2 of the Government Servants Efficiency & Discipline Rules, in respect of civilian employees in grades 1 to 15.

4. When confronted with the above, the learned counsel for the appellant submitted that in case it is taken as a proper designation of 'Authority' and 'Authorised Officer' then his case would be that the respondent No. 2 though designated as Authority yet some other officers were designated as Authorised Officers and as such the respondent No. 2 could not act as an Authority as well as an Authorised Officer as has been done in the instant case. Elaborating his contention he argued that the charge‑sheet in this case was framed by the respondent No. 2 himself and not by the Authorised Officer. The whole proceedings, therefore, vitiated. It was contended on behalf of the respondent department that respondent No. 2 was quite competent to issue charge‑sheet as well as to award punishment. It, however, could not be shown how the respondent No. 2 being an Authority was competent to frame a charge‑sheet when under the law, it is a function of the Authorised Officer. Rule 6 of the Government Servants (Efficiency and Discipline) Rules unambiguously provides that the Authorised Officer shall frame a charge and communicate it to the accused. Of course, if, no other officer is authorised to perform functions of an Authoriseu Officer then the Authority can assume the functions of the Authoriseo Officer also. In the instant case, however, some officers (other than the respondent No. 2) stood authorised to perform the functions of the Authorised Officer, such functions could be performed only by them and not by the respondent No. 2. It seems to us that in such cases, the intention of the rules is to give protection to accused officer so that his case may be examined at more than one stage and in case of performing functions of the Authorised Officer by the authority though a different officer stood designated as Authorised Officer, the accuses officer is to be deprived of that double check provided by law. We are, therefore, of the view that the respondent No. 2 in framing the charge‑sheet, acted incompetently which vitiated the entire proceedings based thereon.

5. It was next argued by the learned counsel for the appellant that the impugned order vitiated also on account of denial of an opportunity to the appellant to lead his defence inasmuch as his request to summon the concerned officers was refused by the Enquiry Officer. We have noticed that in para. 4 of the summary of the case prepares by the Enquiry Officer it is mentioned that the accused‑appellant 'also demanded that Ex. CINS and MPAD may be called for cross‑examination, which was overruled'. It is thus quite clear that the request of the appellant for examination of the concerned officers was not acceded to by the Enquiry Officer. Indeed it will be complete negation of justice to ask a civil servant to show‑cause against loss of his status on certain charges but refuse him to call evidence to prove his assertion. The statutory guarantee providing a reasonable opportunity to defend himself is founded on the principle of natural justice and is clearly intended to protect a civil servant against the loss of his status by a capricious and arbitrary action, and, therefore, a civil servant is entitled to a full and thorough enquiry into the charges before being deprived) of his status as a civil servant. The obvious conclusion would, therefore be that by refusal of the Enquiry Officer to summon the concerned officers named by the accused for examination a reasonable opportunity to defend himself was denied to the accused‑appellant. It was further submitted by the learned counsel for the appellant that the proceedings suffer from yet another infirmity in that the accused‑appellant was deprived of an opportunity of personal hearing also. It was contended on behalf of the respondent‑department that the appellant though desired to be heard in person in reply to the final show‑cause notice yet he did not make such a request of being heard in reply to the charge‑sheet and, therefore, he was not provided such an opportunity which, however, according to the learned counsel, did not affect the validity of the proceedings. We are, however, of the view that a personal hearing is a part of reasonable opportunity guaranteed by the law. Quite obviously, personal hearing enables the authority concerned to' watch the demeanour of witnesses and clear up his doubts during the course of arguments advanced by the accused officer to persuade the authority by reasoned arguments to accept his point of view. Indeed it is a statutory protection that is afforded to a civil servant and a statutory obligation cast upon a public authority which has got to discharge that obligation irrespective of whether the protection is claimed, in reply to the charge‑sheet or in reply to the final show‑cause notice. We are, therefore, safe in holding that when the accused‑appellant requested for a personal hearing in reply to the final show‑cause notice, denial of such an opportunity to him amounts to denial of a reasonable opportunity. This being the position, the proceedings against the accused‑appellant having suffered from patent legal infirmities and serious lacunas, the impugned order of retirement from service must be set aside.

6. For the foregoing reasons the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be reinstated in service. The intervening period for which the appellant has remained out of service shall, to the extent of leave due to him, be treated as on leave of the kind due, and the remaining, if any, as extraordinary leave without pay.

7. No order as to costs.

M.Y.H.

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