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Appeal No.196‑R of 1983, decided on 9th May, 1985.

‑‑‑R. 6‑‑Charge of misconduct against civil servant‑‑Mode of Inquiry‑ Procedure.

Rule 6(1) of Government Servants (Efficiency and Discipline) Rules, 1973, definitely contemplates communication of the charges in writing to the person charged together with a statement of allegations, on which each charge is based, and of any other circumstances, which it is proposed to take into consideration in passing order in the case. It thus, rules out any action without communication, or, at least, disclosure, of the basic materials to the alleged delinquent. Further rule 6(3) read with rule 6(4) of the said Rules contemplates fixation of a date by the Inquiry Officer for hearing of the case from day‑to‑day in which evidence should be taken and allowed to be given as to disputed or non‑admitted allegations and the person charged shall be entitled to cross‑examine the witnesses against him. to be heard in person, and to have witnesses whom he wishes to call, called and examined on his behalf. All this, of course, further necessitates preparation of proper record of the proceedings by the Inquiry Officer.

‑‑‑R.6‑‑Inquiry against civil servant‑‑Inquiry Officer's report sent back to him by authorized Officer to hold proper proceedings in accordance with Rules‑‑Inquiry officer not issuing or serving process of inquiry proceedings to civil servant directly‑‑Inquiry Officer denying to civil servant opportunity to defend himself to which he was entitled under the law‑‑Course adopted by Inquiry Officer in "supplementary proceedings" by calling some officers of his choice and requiring civil servant to furnish questionnaires in writing containing questions which civil servant wanted to put to such officials and obtaining answers of those officers, but without recording their proper depositions as Examination‑in‑Chief, held, could not be termed as cross‑examination of witnesses‑‑By refusing to call necessary witnesses as per request of civil servant, presumption would be that no inquiry at all was, held, by Inquiry Officer and what he did was at the best a fact‑finding probe or a preliminary inquiry.

‑‑‑R.6‑‑Departmental inquiry‑‑Requirement‑‑Where a public authority is directed under a law to hold inquiry on basis of which competent authority has to take action, Inquiry Officer, held, could not carry out a grotesque caricature of it but has to conduct it in accordance with relevant statutory provisions‑‑Non‑compliance with Rules would amount to transgression of obligatory Rules which lay down the minimum standard comprising reasonable opportunity to be afforded to a civil servant against whom action was sought to be taken‑‑Denial of reasonable opportunity to civil servant to defend himself being negation of mandatory provisions of Rules, per se would vitiate action taken against such civil servant.

P L D 1975 S C 678 rel.

‑‑S.4‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.6‑‑Appeal before Service Tribunal‑‑Exercise of appellate jurisdiction‑ Service Tribunal, in exercise of its appellate jurisdiction, held, would be required to avoid mere technicalities and formalities to arrive at a just conclusion of a case‑‑It is highly improper to sacrifice demand of justice at the altar of technicalities.

‑‑‑S.4‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.6‑‑Civil servant's dismissal from service‑‑Authorized Officer's recommendations based on erroneous, vague and defective inquiry report‑‑Effect‑‑Where authorized Officer did not apply his independent mind to matter but simply based his recommendations on vague and defective inquiry report and only one version was before Authority while version put forward by Civil servant was not taken into consideration either by authorized Officer or the Authority, order of dismissal of civil servant, held, would not be sustainable.

‑‑‑S.4‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.6‑‑Appeal against dismissal from civil service‑‑Dismissal. based on violation of principles of natural justice‑‑Effect‑‑Where dismissal of civil servant was based upon inquiry proceedings and recommendations of authorized Officer, such inquiry and recommendation being based on violation of principles of natural justice and mandatory provisions of Rules, dismissal of civil servant was set aside by Service Tribunal‑‑Civil servant was re‑instated and Authority was given option to proceed against such civil servant in accordance with law if desired by it.

Atiqur Rehman Qazi for Appellant.

Muhammad Amir Akbar Khan for Respondent.

Date of hearing: 28th March, 1985.

‑‑The relevant background of the present appeal is that the appellant was proceeded against departmentally under the Government Servants (Efficiency and Discipline) Rules, 1973, for the allegations contained in the charge‑sheet and statement of allegations dated the 7th of March, 1982 served on him which are reproduced below:‑

Whereas you Mr. S. Abid Hussain while working as Divisional Engineer (Phones) Cantt: Rawalpindi, were allotted funds to the extent of Rs.30,15,000 for maintenance of your Division for the financial year 1981‑82 but you exceeded the budgetary allotment within six months time incurring an expenditure of Rs.30,21,800 upto 31‑12‑1981, thereby abusing your financial powers and violating all rules, regulations and administrative instructions of financial discipline.

And whereas from the facts and circumstances of the case, it appears that you are prima facie guilty of misconduct and corruption.

Now, therefore, you the said Mr. S. Abid Hussain are hereby directed to show cause within 14 days of the receipt of this charge‑sheet why you should not be dismissed from Government service under the Government Servants (Efficiency and Discipline) Rules, 1973, on the abovestated charges stating at the same time, whether you like to be heard in person and adduce any evidence or witnesses in your defence. A statement of allegations and circumstances is appended herewith.

Mr. A.W. Awan, Deputy Chief Engineer (Training) T & T Directorate‑General, Islamabad, has been appointed as Inquiry Officer under the Government Servants (Efficiency and Discipline) Rules, 1973, to conduct the proceedings against you. In case no written reply is received within the specified time limit prescribed herein, the case will be decided ex parte.

(Sd.)

(F. K. Bandial)

Secretary Communications"

Mr. S. Abdid Hussain while working as Divisional Engineer (Phones) Cantt: Rawalpindi was found to have committed serious financial irregularities and violation of rules and regulations.

(2) An amount of Rs.30,15,000 was allotted to Phones Division, Cantt: Rawalpindi for the entire financial year 1981‑82 but he spent Rs.30,21,800 in six months time i.e. upto 31‑12‑1981. It was further noted that nearly 90% of this amount was shown to have been spent on employing casual labour. More than 700 coolies per day were engaged for the entire period of six months without any justification.

(3) Temporary advances are allowed for specific and known disbursement. Mr. Abid Hussain allowed heavy amount of Temporary Advances to his attached officers at random, without ascertaining the purpose and reasons of the advance from them. The ACE.2 accounts contain number of cash vouchers which are patently bogus and fraudulent in character.

From the allegations stated above, it is evident that Mr. S. Abid Hussain is prima facie guilty of misconduct and corruption under the Government Servants (Efficiency and Discipline) Rules, 1973.

(Sd.)

(F. K. Bandial)

Secretary Communications."

On receipt of the above charge‑sheet application dated the 7th of March, 1982, requested for supply of copies of documents forming basis of the above charges but his request was not acceded to and, according to him, he was obliged to submit his defence reply from his memories without consulting the relevant record. He submitted a detailed reply dated 19‑4‑1982 to the above charge‑sheet whereby he categorically denied and refuted all the charges and offered his explanation. Thereafter, it appears that, Mr. A.W. Awan, a Director in the Department, was appointed as an Enquiry Officer who, in his own words, "made thorough investigation, examined all the relevant documents and visited different sites." He submitted his enquiry report dated 6‑6‑1982. The appellant was then granted a personal hearing by the authorised Officer. During the said personal hearing the appellant had made out that he was not associated in the enquiry proceedings and neither the statements of prosecution witnesses were recorded in his presence nor he was given any opportunity to lead his defence. The authorised Officer considering these lapses in the nature of material deviation from the prescribed procedure, ordered that the Enquiry Officer should conduct supplementary proceedings so as to meet the point raised by the appellant. The Enquiry Officer then held some proceedings wherein he only allowed a restricted examination of some witnesses by the appellant to which he had wrongly termed as cross examination of the witnesses". In fact these witnesses were never examined by the prosecution but were called as witnesses at the instance of appellant himself, hence the question of cross‑examining them by the appellant did not arise. Any way, the Enquiry Officer then submitted a further report which was termed by him as "supplementary proceedings to record the statements of cross‑examination of the witnesses". Thereafter the appellant was served with a show‑cause notice to which he again replied in detail pleading not guilty of charges and explaining his conduct. In the said reply to the show‑cause notice also he pointed out certain infirmities in the enquiry proceedings and lapses of the Enquiry Officer which worked to his prejudice. He specifically mentioned that he was not at all associated with the enquiry proceedings and even when the case was remitted back by the authorised Officer the Enquiry Officer did not recall the witnesses examined in the absence of the appellant and did not show him any record. He also alleged that the Enquiry Officer had been acting as a judge as well as a prosecutor inasmuch as neither any witness nor any record was produced by the prosecution. He, however, was dismissed from service vide notification dated 24‑5‑1983 on the ground of misconduct. This brought the appellant to this Tribunal.

2. The case of the appellant in his defence pleaded before the Enquiry Officer and the authorised Officer, as elaborated at the bar, is that over the years it had been a practice that the allotment for a financial year used to be received in instalments and after lapse of the first four or five months of that particular year. In the absence of the allotment the expenditure is incurred in accordance with the trend of the expenditure of the previous year. In the year 1981‑82 the allotment was received in the month of October, 1981, and in the absence of the same the expenditure was incurred on the indicator of the previous year. At the time of receipt of the allotment in October, 1981, and as per practice of the Department it was considered as the initial allotment for the year 1981‑82. If seen in the context of records, it will be clear that the total allotment for the Rawalpindi Phones Cantonment Division was Rs.51,15,000 (Rs.45,20,000 under cash and Rs.5,95,000 under stores) for the financial year 1981‑82. But when the case against the appellant was initiated the Regional Office made certain corrections in the record and it was told that there was a mistake by the dealing officials in the Regional Office and while adding the cash allotment instead of Rs. 27, 25, 000 it has been wrongly shown as Rs. 45, 20, 000. Moreover, in the month of December, 1981, a sum of Rs.3,00,000 was withdrawn from Rawalpindi Phones Division (Rs.2,95,000 under cash Rs.5,000 under stores) and were re‑allocated to some other division, when the expenditure had already been incurred by the appellant. Again under cash column it will be seen that the allotment under cash as shown is Rs.24,20,000 which too is not correct. This is how the affairs of the controlling office were being run in that period and all the confusion, tampering with documents and other fictitious entries were made by the Director, Telephones, and under his guidance, by his subordinate staff. Instead of taking any appropriate action against him the appellant has been made a scapegoat for the omissions and commissions committed by others. It was also urged that monthly statements of expenditure incurred in the Division were being regularly sent by the appellant to the General Manager of the Region and Director of the Circle but nobody has ever raised any objection nor even Audit has ever pointed out any violation of financial rules. It was submitted that, at any rate, it could only be a case of incurring genuine expenditure in excess of tentative allotments of fund. Misappropriation of fund was not even alleged against the appellant. In reply to the allegation of allowing heavy amount of temporary advances by the appellant to his attached officers without ascertaining the purpose and reasons thereof, it was urged that the S.D.Os. used to apply for the same in accordance with the departmental rules and regulations according to the volume of work to be carried out. These applications were further scrutinized by the Divisional Accountant in the Division and put up to the Divisional Engineer for sanction. After judging the volume of work to be carried out by the S.D.Os. the Divisional Engineers used to sanction such advances. Moreover, the Audit never objected upon this and the record would show that the advances were granted in accordance with the prescribed rules and regulations. Regarding the allegation relating to a number of cash vouchers being bogus and fraudulent and spending nearly 90 of the amount on employment of casual labour by employing more than 700 coolies per day it was contended that in fact the charge would have been alleged against the S.D.Os. /E.Ss. /Technical Line Staff who were responsible for the engagement of casual labour, execution of works and their payments. If any wrong was done in connection with the employment of casual labour of their payments, the appellant cannot be held responsible for their fault. The persons directly responsible for the alleged default should have been charged and not the appellant. However, in realisation of his duty of overall supervision of the works carried out in the division, the appellant was bona fidely satisfied that the amount claimed by the concerned staff for employment of casual labour with respect to the quantum of work which was to be executed, was justified and such justification was furnished by the appellant during the enquiry in his replies to the charge‑sheet and show‑cause notice. Describing the prevailing circumstances and system observed and practice followed in the Department it was explained by the appellant at the Bar that the Linemen, Technicians and E.Ss., all are imprest holders and in that sense are the disbursing Officers. Under rules and as per the T & T Schedule they engage labour as and when required and according to the quantum of work which is to be performed. After carrying out the job they submit their ACE‑3 bills to the concerned E.Ss. who check and verify and record a pay order for making the payments and in turn incorporate their ACE‑3 bills in their own accounts, further these accounts are checked and verified by the S.D.Os. who record pay order, check and verify, check the propriety and pay the amount, and then submit their accounts in ACE‑2 form to the Divisional Office where they are scrutinized by the Divisional Accountant in accordance with rules 17‑46, 601, 602, 608 and other various instructions as issued from time to time by the Director and T & T Audit and Accounts. After the check the Accountant stamps all vouchers as "Checked" and then put up to Divisional engineer for countersignature and incorporation of these accounts into the Divisional Accounts. So the Vouchers/Bills are prepared by the Linestaff/E.Ss/S.D.Os and they check/verify their authenticity pay the amount and submit their bills to the Divisional Accountant for incorporation into the Divisional Office Accounts. Divisional Engineer neither engages labour, nor makes payment to them. It is only and only the S.D.O. who is responsible for the correctness of the accounts and further responsibility is that of the Divisional Accountant who checks all the accounts in accordance with the Rules and Regulations. S.D.Os. are the Gazetted officers of the Department and, therefore, the accounts were incorporated as they were submitted to the Divisional Office under their signatures and seal. After incorporating these accounts into the Divisional Office Accounts they are further subjected to check by the Audit Personnels and were regularly submitted to the Audit on the expiry of each month. Since no objection was ever received from there so the vouchers were taken to be genuine. The audit party also carried out the inspection of the division and stated the conditions of accounts as most satisfactory. According to Rule 3 of IAC Vo.I "a Government servant supplied with funds for expenditure shall be responsible for such funds until an account of them has been rendered to the satisfaction of the Audit Officer concerned." Explaining his position regarding the charge of employment of abnormal number of casual labours the appellant contended that the Enquiry Officer has himself admitted that the number of casual labours employed were 526 and not 700 as alleged in the statement of allegations. According to the calculations of Enquiry Officer it shows that an amount of Rs.17,05,860 (526 x Rs.18) was incurred for the employment of casual labour out of the so‑called allotment of Rs.30,15,000. It will be observed that it comes out to be 56.5% of the total allotment. Hence it is neither 90% nor 76% as made out by the Enquiry Officer. It is 56.5% even from the point of view and calculations of the Enquiry Officer. So the charge of spending 90% of the amount on employment of casual labour was unfounded and incorrect. Had the Enquiry Officer associated the appellant in the enquiry, the position would have been clarified. Though the appellant did not accept this finding of the Enquiry Officer as correct yet given justification for the same by stating that due to frequent breakdown and malicious cuts of underground cables by anti‑social elements the then General Manager ITR and Director, Telephones, ITR, directed the appellant to deploy cable guards on the cable routes feeding from main exchange to C.M.L.A. Secretariat, C.M.L.As. residence and green exchange. The cable guards were employed accordingly with the approval and consent of the higher officers. There were 40 mainholes on that route and about 120 cable guards were employed daily to perform their duty round‑the‑clock. Another hard fact was that the appellants division was responsible for the maintenance and construction of new building works, comprising of main T & T Exchange building, 210 staff quarters, 5 C‑type bungalows, office buildings etc. and for that not a single post was sanctioned since long. To meet with the situation a large number of skilled labour such as Electricians, Masons, Carpenters, Exchange Cleaners, Plumbers, Chowkidars and Pump Operators were also engaged. This type of skilled labour is never available on the normal casual labour rates of Rs.18 per day. Thus about 200 coolies were engaged daily for the security, watch and ward maintenance jobs of buildings. Further there were 150 technical personnels in the division responsible for the execution of works who under rules, can employ casual labour and make payments being the imprest holders, had engaged the rest of the coolies for the execution of the jobs the details of which had already been supplied and, according to the quantum of work performed, they were justified in all respects. The linestaff engaged the coolies strictly in accordance with the departmental schedule of engaging casual labour as per Eng. 3 sheet 10 page 1, 2 and 3. Further 150 technical personnels consisting of 4 S.D.Os., 30 E.S. Ss. 44 Technicians and 76 Linemen claimed to have engaged about 350 coolies and the average comes out to be 2.4 per technical person which was quite normal. It was asserted that the approximate cost of maintenance per line/per day was Re.l (Rupee one only) including the cost of new building works and capital nature of works. It was thus urged that notwithstanding the main responsibility of the attached officers in this respect, the appellant had found ample justification to consider that the labour claimed to have been employed by the attached officers and staff was according to the volume of work performed and in accordance with the schedule of the department and was not excessive at all.

3. We have given our anxious thought to the submissions made at the Bar and carefully examined the record made available to us. The learned counsel for the appellant has assailed the impugned order on several grounds of law and fact. Arguing on law points be submitted that the entire proceedings and the impugned order passed thereon having suffered from serious infirmities and illegalities, vitiated for a number of reasons which may be summed up as follows:‑

(i) The charge‑sheet was vague.

(ii) Despite the repeated requests of the appellant at every stage, the copies of relevant material were not supplied and access, to relevant record was denied to him.

(iii) The Enquiry Officer proceeded on the basis of some preliminary enquiries and some investigations carried out by him. He did no% hold any enquiry in terms of the Government Servants (Efficiency and Discipline) Rules. In. any case the so‑called enquiry proceedings were held ex parte and the appellant was not associated therein and thereby right to lead defence and to cross‑examine the prosecution witnesses, was denied to the appellant.

(iv) That the enquiry proceedings having been conducted in violation of the mandatory provision of the rules and in disregard of the principle of natural justice, vitiated.

(v) The enquiry report does not specify the material on which the charge of misconduct was based.

(vi) Explanation of the appellant given in his defence was not at all considered either by the Enquiry Officer or by the authorised officer.

(vii) Neither the authorised Officer nor the Authority granted him a personal hearing after the final enquiry report was submitted.

(viii) The authorised Officer as well as the Authority did not take into consideration the cause shown by the appellant.

4. The most substantial contention of the learned counsel which falls for determination as a first question is that whether the enquiry proceedings were or were not held in confirmity with the Government Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to as the Rules), and the principles of natural justice. The learned counsel for the appellant has alleged contravention of the Rules, violation of the principle of natural justice and denial of reasonable opportunity to the appellant on several grounds, namely, (i) refusal of supply of copies or permission to the appellant to inspect certain material and records which formed basis of the charges, (ii) failure of the Enquiry Officer to record the evidence of any of the prosecution witnesses, (iii) refusal of opportunity to the appellant to lead his defence, (iv) reliance by the Enquiry Officer in his report, on certain material and documents seen and considered by him behind the appellants back and without giving him any opportunity to look into these documents or to meet and explain them.

5. Rule 6(1) of Government Servants (Efficiency and Discipline) Rules 1973, definitely contemplates communication of the charges in writing to) the person charged together with a statement of allegations, on which, each charge is based, and of any other circumstances, which it is, proposed to take into consideration in passing order in the case. It thus, rules out any action without communication, or, at least, disclosure, of the basic materials to the alleged delinquent. Further Rule 6(3) read with Rule 6(4) of the said Rules contemplates fixation of a date by the Enquiry Officer for hearing of the case from day‑to‑day in which evidence should be taken and allowed to be given as to disputed or non‑admitted allegations and the person charged shall be entitled to cross‑examine the witnesses against him, to he heard in person, and to have witnesses whom he wishes to call, called and examined on his behalf. All this, of course, further necessitates preparation of proper record of the proceedings by the Enquiry Officer. In the instant case, to our utter surprise, the Enquiry Officer did not fix any date for hearing as required by Rule 6(4) of the Rules did not maintain any record of the proceedings, did not record the deposition of any witness in support of the allegations and did not afford the accused an opportunity to lead defence but merely based his report and findings on his examination of the record and visits of the sites carried out by him in the absence of the accused. It is thus, established that the enquiry proceedings were taken ex parte in a quite erroneous manner and were confined to consideration of the material and record behind the appellants back. It was perhaps for these reasons, that when the appellant was heard personally by the Authorised Officer, the latter was satisfied that neither the accused was associated with the enquiry proceedings nor he was allowed to cross‑examine the prosecution witnesses. He (the Authorised Officer), therefore, considering these lapses in the nature of material deviation from the prescribed procedure, directed the Enquiry Officer to conduct the supplementary proceedings in order to meet with the points made out by the appellant. In spite of such clear direction by the Authorised Officer the Enquiry Officer did not care even then to hold proper proceedings contemplated under the Rules but in his report titled as "Supplementary proceedings to record the statements of cross‑examination of witnesses" he still unjustifiably insisted that there were no lapses in the previous enquiry proceedings and the accused‑appellant was associated therein. In support of his such stand, however, the sole reliance of the Enquiry Officer was on a copy of his letter dated 24‑4‑1982 (annexed to the aforesaid report). A perusal thereof reveals that the said alleged letter was written to make a request by the Enquiry Officer to Mr. Muhammad Javed, Chief Engineer (Dev.), T&T Directorate General to direct the accused‑appellant to attend the proceedings relating to the disciplinary case against him which were to be taken up on 27th April onwards. It was, however, emphatically contended by the accused‑appellant that information contained in the said letter was never conveyed to him by anyone and he was never made aware of the time and place of any enquiry proceedings. The respondent‑Department has not been able to rebut the contention of the accused‑appellant and failed to produce anything to show that any intimation about the time and place of the enquiry for the purpose of associating the accused‑appellant therein, was ever conveyed to him. It could also not be explained to our satisfaction as to why the Enquiry Officer had not issued and served the process of enquiry proceedings to the accused directly which could very conveniently be done as he (the accused‑appellant) was during the relevant time serving in the department as Divisional Engineer (Coord) in the very T&T Directorate‑General. Even otherwise we are not prepared to make any assumption that the appellant would not have appeared before the Enquiry Officer if the latter had fixed a date for the purpose and intimation to this effect had been duly given to him. There is, therefore, no room for doubt that no intimation whatsoever was ever given to the accused -appellant about the enquiry proceedings. It, thus, becomes quite clear that the insistence of the Enquiry Officer that the accused‑appellant was associated in the enquiry proceedings, was totally unfounded and unsustainable. On the contrary, the Enquiry Officer, by his strange conduct, had denied the accused‑appellant an opportunity to which he was entitled under the law. In these "Supplementary Proceedings" what the Enquiry Officer merely did was that he called some of the "concerned officers of his choice and required the accused‑appellant to furnish questionnaires in writing containing questions which the accused‑appellant wanted to put to them and thus answers of the said "concerned officers" to‑ the questions such furnished were obtained, but without recording their proper depositions as examination‑in‑chief. This novel exercise was wrongly termed by the Enquiry Officer as "cross‑examination of the witnesses". Thus, even in these proceedings evidence as required by law was neither produced nor taken. The tragedy does not end here as para 2 of the said supplementary report shows that even at that stage the Enquiry Officer had refused to call the Sub‑Divisional Officers, Assistant Engineers and Senior Divisional Accountant on the strange excuse that they were "party and not the witnesses". We failed to understand as to what he meant by considering them as "party and not the witnesses: but one thing is quite clear that at that stage also the accused‑appellant was denied an opportunity of leading his defence and cross‑examining the relevant witnesses properly. It thus, becomes quite plain that in the so‑called supplementary enquiry proceedings also the inherent and fatal defects of the previous enquiry proceedings were not cured and remained in tact. It can, therefore, be safely concluded that the Enquiry Officer did not hold any enquiry at all, and what he did it was at the best a fact‑finding probe or a preliminary enquiry.

6. According to the well‑established legal position, when a public authority is directed under a law to make an enquiry and the competent authority has to take action on the basis of its report, it cannot carry out a grotesque caricature of it but, on the contrary, has to conduct it in a manner prescribed by the relevant statutory provisions. A non‑compliance with it would amount to transgression of obligatory rules which lay down the minimum standard comprising reasonable opportunity to be afforded to a civil servant against whom action is sought to be taken. The amount of prejudice, which would be caused to the person concerned, need not to be taken into consideration, for non‑compliance with the mandatory provision of Rules itself would constitute denial of a reasonable opportunity which per se would vitiate the action taken As held in P L D 1975 S C 678 "it cannot be denied that legal percepts were devised with a view to impart certainty consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Now it is to be seen that the mandatory provision of the Rules makes it incumbent upon the Enquiry Officer to submit the enquiry report on the basis of the oral or documentary evidence led before him by the prosecution in the presence of the accused and he has no power whatsoever to base his conclusion on ex parte investigation and examination of documents carried out by him. In this case an enquiry was held with which the accused‑appellant was not associated; no evidence was led by either party; and the Enquiry Officer acted upon the basis of his own investigation /examination of record conducted in an arbitrary manner. We have, therefore, no hesitation in saying that the enquiry was not conducted in accordance with the Rules which have a statutory force. Again, an Enquiry Officer is bound to conduct an enquiry not only in accordance with the mandatory provisions of the statutory rules but also in a manner which does not violate the basic rules of natural justice. One of these Rules is that there shall be a fair enquiry into the truth of the alleged facts in the presence of the accused. If the witnesses are interrogated and the documents are seen in the absence of the accused and he is denied an opportunity to defend himself, the element of fairness is bound to disappear and with it will vanish the validity of enquiry itself. According to law, the rules of natural justice and fairness cannot be bypassed even in the departmental enquiries. There is a wealth of case‑law on the point and we need not emburden this judgment with citations as the trend of superior Courts in this regard is well known. In the instant case, as said above, a reasonable opportunity was not afforded to the accused‑appellant and thereby the rules of natural justice and fairness were bypassed. There is thus, no escape from the position that in the present case the enquiry proceedings were held not only in an erratic, slipshod and haphazard manner but also in utter violation of the mandatory provisions of the Rules and in total disregard of the principles of natural justice, and on that score alone the enquiry proceedings culminating in the impugned order are liable to be quashed.

7. It may be pertinently added that while coming to the above conclusion we are quite conscious that this Tribunal is required to avoid mere technicalities and formalities in so far as permissible by law to arrive at a just conclusion of a case. We ourselves feel that it is highly improper to sacrifice the demand of justice at the alter of technicalities. This cardinal principle is being persistently followed by us. To quote a specific instance Hasan Raza, an appellant before us in Appeal No.51(R)/1983 was punished for the charges identical to the accusation against the present appellant. When his vainly attempt take shield behind a typographical error led us to an inference that he had knowledge of the wrongfulness of his acts and thus existence of mens rea was found, we did not hesitate in upholding the finding of guilty although the enquiry proceedings of that case also suffered from serious irregularities, legal defects and omissions. However, the hurdle offered by non‑observance of statutory provisions and violation of the principles of natural justice in the present case is insurmountable, inter alia, for the reason that while the findings of the Enquiry Officer are found to be based only on conjectures and surmises apart from being in highly generalised terms, nothing is otherwise found on the record of the enquiry proceedings to prove the liability of the appellant to be punished for misconduct. Thus, the aforesaid uncurable illegalities, fatal defects and omissions in the enquiry proceedings had caused serious prejudice to the accused‑appellant in his defence rendering the entire proceedings void.

8. There is, however, yet another aspect of the matter which also leads to the same conclusion. We have had a look at the recommendations of the Authorised Office contained in the Summary submitted by him for consideration and order of the authority and that has left us with an unavoidable impression that he (the Authorised Officer) just based his said recommendations merely on the erroneous vague and defective enquiry report without consciously applying his own independent mind to the matter. Indeed, a perusal of the said Summary has convinced us without any shadow of doubt that when the file was placed before the Authority for his order it was not even apprised of the defence version and cause shown by the accused‑appellant against the proposed penalty. G For, in his reply to the show‑cause notice, the accused‑appellant, apart from pointing out the illegalities, omissions and legal defects in the enquiry proceedings, had explained his position in a detailed and elaborate manner but the same were not at all taken into account and were omitted altogether from consideration while formulating the aforesaid recommendation by the Authorised Officer. The Summary also failed to explain why, if incurring expenditure disregard of allocated grant, as impliedly indicated, was a general practice in the department, only the appellant and a very few others were singled out, while the large majority of the Divisional Engineers of the Department was allowed to go scot free and no action was even initiated against them. Yet another omission apparent on the face of the said Summary, is that the Authorised Officer while holding the appellant guilty of the charge relating to employment of abnormal number of coolies and preparation of fictitious muster rolls and vouchers, again omitted to mention that a large number of other personnels such as the Divisional Accountant, Sub‑Divisional Officers, Engineering Supervisors etc. the real culprits of the said charge were not even proceeded against for the charge but, on the other hand, the extreme penalty of dismissal from service was recommended for the accused‑appellant without determining the extent of his responsibility in the affair. We have, therefore, no hesitation in saying that it was a case where there was only one version before the Authority and that too was based only on an arbitrary, unfounded and defective enquiry report. Can it, in such circumstances, be said that an order based upon such recommendations would not be vitiated

9. The upshot of the above discussion, therefore, is that the enquiry proceedings as also the recommendation of the Authorised Officer are wholly unsustainable being in clear violation of the mandatory provisions of the Rules and the basic principles of natural justice. The enquiry proceedings, which form the basis of the impugned order are, therefore, set aside with the result that the impugned order of the Authority also automatically collapses and becomes non‑existent. Consequently the appellant shall be re‑instated in service. It may, however, be clarified that since the proceedings are being quashed by us on the ground of legal defects therein, it shall be open for the relevant authorities to proceed afresh against the appellant according to law. The appeal is accordingly allowed with no order as to costs.

10. Parties be informed accordingly.

A.A. /359/Lb. /S

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