Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HANIF AKHTAR RANJA AND 2 OTHERS VS Respondent: AZAD GOVERNMENT OF THE STATE of JAMMU AND KASHMIR
1983 P L C (C
1983 P L C (C. S.) 932
[Service Tribunal Azad J & K]
Present : Sardar Muhammad Ashraf Khan, Chairman and Kh. Ghulam Qadir, Member
HANIF AKHTAR RANJA AND 2 OTHERS
versus
AZAD GOVERNMENT OF THE STATE of JAMMU AND KASHMIR‑Respondent
Appeals Nos. 84. 85 of 1978 and 891 of 1579 decided ors 18th June, 1983.
(a) Civil service‑‑
-----Disciplinary action‑Preliminary inquiry‑An exercise to satisfy that there was a prima facie sufficient ground for initiating discip linary proceedings under relevant Efficiency and Discipline Rules‑ Can be conducted in any manner deemed fit in circumstances of each case‑Inquiry conducted by a Commission appointed under Commis sion of Inquiry Act, 1956 and report thereof used for initiating formal proceedings under Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977‑Such inquiry, held, only to satisfy about genuineness or otherwise of complaints received by Government against accused and others‑Objection that said Com mission recorded statement of witnesses (1) in absence of accused and (2) without administering them an oath, in circumstances, held, not tenable.‑No proceedings or report independent of Azad Jammu & Kashmir Civil Servants Act, 1976 and Efficiency and Discipline Rules, 1917 framed thereunder, held, could in any manner affect '`" adversely a civil servant in respect of his service right‑Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
(b) Azad Jammu fir. Kashmir Civil Servants (Efficiency and Discipline) Roles, 1977‑
‑‑ R. 6(2) & (3) read with Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), Fundamental Right No.' 15‑Show‑ ‑ cause notice procedure‑Not violative of Fundamental Right No. 15 Words "facts of the case or interests of justice" used in sub‑rule (2) do provide criteria for Authorised Officer to decide whether in a particular case facts warrant holding of an inquiry or not‑Facts of each case would be adjudged by Authorised Officer on its own merits and thus facts of case or interest of justice would by itself make a classification which surely would be a reasonable rational‑Contention that provisions of sub‑rules (2) & (3) are violative of Fundamental Right of equality before law reject ed and same, held, valid and perfectly in conformity with Funda mental Right No. 15 guaranteed in Azad Jammu & Kashmir Interim Constitution Act, 1974‑Authorised Officer to act judicially, fairly and impartially and duty bound to make a judicious considera tion of facts of case to arrive at a correct decision whether such facts warrant holding of inquiry in interest of justice‑If for one or other reason deliberately or inadvertently Authorised Officer commits error in deciding about not holding of inquiry civil servant aggrieved will have a legal right to challenge same and such mistake of procedure, held, can be rectified by Service Tribunal Accused of preparing fake documents and misappropriation‑Such allegations denied and denial needing charges to be proved by leading evidence for bringing real matter to light‑Impugned dismissal order passed by resort to show‑cause notice procedure and without holding inquiry‑Authorised Officer, in circumstances, held, failed to exercise his discretion judicially in deciding not to hold inquiry an;' such lapse or his art held, resulted in miscarriage of justice- Impugned penalty order, in circumstances, held, not sustainable hence set aside and case remanded to competent authority‑Azad Jammu & Kashmir Service Tribunals Act, 1975, S. 4.
P L D 1966 Dacca P. 569 ; 1981 P L C (C. S.) 877 ; P L D 1957 SC(Pak.)157; PLD1975SC 506;AIR1952SC75;AIR1961SC 1715 ; P L D 1958, Pesh. 73 ; P L D 1965 Lah. 229 ; P L D 1957 Pesh. 100; P L D 1957 1 ; Quetta P L D 1958 Quetta 12 and PLD 1965 Lah. 229 ref.
AIR 1955SC166AIR1953SC404andAIR1958SC538rel.
Basharat Ahmed Sheikh for Appellants.
Additional A.‑G: for the State.
ORDER
KH. GHULAM QADIR (MEMBER).‑Above captioned three service appeals emerged in identical circumstances and involve common legal objections, so, all the three appeals are taken together and will be disposed of by one judgment. However, for the sake of convenience and proper comprehen sion of the matter facts of each appeal are laid down separately.
2. In Appeal No. 89, at the time of passing the impugned order appellant Hanif Akhtar Ranja was serving under the respondent (Azad Kashmir Government) and was employed as Executive Engineer Rural Development and Project Director (World Food Programme aided pro jects).
3. The appellant in Appeal No. 84, Mr. Mahmood Ahmed Lodhi was serving under the respondent as Deputy Director, Local] Government and Peoples Works Programme and in addition to duties he worked as Project Director Food Programme from 8‑5‑1976 to 12‑3‑1977.
4. The appellant in Appeal No. 85, Mr. Ghias‑ul‑Haq was employed as Supervisor .Local Government and People Works Programme and was posted as Storage Officer at Rawalpindi in the World Food Programme from 11‑12‑1975 to September, 1976.
5. Thus, all the three appellants were connected with the affairs of receipt and distribution of goods received through the Organization of World Food Programme.
6. The Azad Jammu & Kashmir Government (hereinafter called respondent) having received general complaints of gross misappropriation and embezzlement in various funds and grants decided to make inquiries into the allegations and for this purpose appointed two Commissions of Inquiry under section 3 of Commission of Inquiry Act, 1956 as applicable in Azad Kashmir.‑ Inquiry into the affairs of Peoples Works and World Food Programme fell within the purview of Commission of Inquiry No. 2 headed by Brig. Muhammad Arif Khan. This Commission conducted inquiries
accordingly and found all the three appellants involved in corrup tion and embezzlement of wheat and milk etc. provided by the W. F. P. and ultimately submitted its report in respect of the appellants to the respondent. The respondent felt satisfied by the report of the Commission and consequently decided to initiate proceedings against the appellants under the A. J. K. Civil Servants (Efficiency and Discipline) Rules, 1977 hereinafter to be referred (Efficiency and, Discipline Rules) and in pursuance thereof three separate show‑cause notices under rule 6; 3 (b) of the said rules were issued by the Services and General Administration Department on 29th April, 1978 to the appellants to show cause as to why they should not be dismissed from service for the reason that they appeared to be guilty of misconduct and inefficiency under rule 3(a) and (b) of the Effi ciency and Discipline Rules, 1977. Show‑cause notice to Mr. Hanif Akhtar Ranja appellant in Appeal No. 89 contained the following 6 charges :‑‑
(1) That you presented a fake stock register knowing it to be such.
(2) That you misappropriated jointly with .M/s. Mahmood Ahmad Lodhi, Ghias‑ul‑Haq and Saeed Ullah 2,650 maunds of wheat shown less in the fake register.
(3) That you ordered writing off 4,238 Maunds of wheat without pro per authority and misappropriated the same.
(4) That you ordered writing off 311 bags (7,775 Kilograms) of milk powder without proper authority and misappropriated the same.
(5) That you misappropriated jointly with M/s. Mahmood Ahmed Lodhi and Saeed Ullah 4 wagons of wheat (approximately 2,000 maunds) received by the department but not entered in the stock register.
(6) That you have been found guilty of lack of administrative and financial control resulting in a number of incomplete projects, work done not being commensurate with the money and food stuff, utilized, and large scale mismanagement at all levels.
7. The show‑cause notice issued to Mr. Mahmood Ahmed Lodhi appellant in Appeal No. 84 contained the following 6 charges :‑
(1) That you ordered the preparation of a fake stock register.
(2) That you misappropriated jointly with M/s. Hanif Akhtar Ranja, Ghias‑ul‑Haq and Saeed Ullah 2,650 maunds of wheat shown less in the fake stock register.
(3) That you ordered writing off 284 maunds of wheat without proper authority and misappropriated the same.
(4) That you have been found guilty of lack of administrative and financial control, resulting in n6n‑completion of schemes and mis management on a large scale at all levels.
(5) That you misappropriated jointly with M/s. Hanif Akhtar Ranja and Saeed Ullah 4 wagons of wheat received by the Department but not entered in the stock register.
(6) That you accepted inferior clothing in case of Winter Clothing Project.
8. Show‑cause notice communicated to Mr. Ghias‑ul‑Haq appellant in Appeal No. 85 contained the following 4 charges: ‑
(1) That you ordered the preparation of a fake stock register and showed 2,650 maunds less wheat and misappropriated the same jointly with M/s. Hanif Akhtar Ranja, Mahmood Ahmed Lodhi and Saeed Ullah.
(2) That you ordered writing off 1,175 maunds, (137 maunds on 22‑4‑1976, 42o maunds on 7‑5‑1976 and 612 maunds on 15‑5‑76), of wheat without proper authority and misappropriated the same.
(3) That you wrote off 311 bags (7,775 Kilograms) of milk powder without proper authority and misappropriated the same jointly with Mr. Hanif Akhtar Ranju.
(4) That you have been found guilty of shortage of 722 maunds of wheat in stock and misappropriating the same.
9. All the three appellants were charged with misconduct on the basis of the charges levelled against them in their respective show‑cause notices.
10. The appellants submitted their written replies in detail in answer to their respective show‑cause notices but the same did not find favour with the competent authority and ultimately the competent authority issued the impugned orders dismissing all the three appellants from service with further penalties of recovery of actual pecuniary losses caused to the Government which loss was to be worked out and recovered from each of the appellants. .
11. Feeling aggrieved by these orders of dismissal the appellants availed of the departmental remedy of review before the respondent but their Review‑petitions turned out fruitless as the same were rejected. Having failed to seek departmental relief the appellants took recourse to the services Tribunal and filed three separate appeals under section 4 of the A J & K Service Tribunal Act, 1975 alleging that orders of their dis missal passed on 24‑6‑1978 were legally and factually incorrect calling for their revocation with resultant re‑instatement of appellants with effect from the date of passing of the impugned orders.
The respondent appeared through State Counsel and filed written objections in all the three appeals maintaining that the appellants were rightly found guilty of misconduct by the competent authority and the impugned orders were passed perfectly in accordance with the relevant law and rules and as such the appeals had no force in them and merit dismissal with costs.
12. The appellants got summoned the relevant record but produced no evidence on facts and merits of their respective cases to disprove allega tions brought against them with the result that counsel for the respondent felt no necessity of leading any evidence in rebuttal and thus the cases were closed for arguments of the parties.
13. The arguments of the learned counsel for the parties were heard at length and then with the consent of the learned counsel for the parties it was decided that, in their own interest and for the convenience of the tribunal, the parties placed their written arguments on record.
14. The perusal of written arguments filed in all the three appeals in band reveals that no arguments were made on the merits and facts of the cases of appellants and rather the learned counsel for the appellants felt contended to raise the following common legal pleas in all the three appeals.
(1) That Commission of Inquiry could be set up for making inquiry into a definite matter only but the notification under which the Commission was set up does not specify any definite matter of public importance for inquiry.
(2) That proceedings of inquiry against appellants were taken by only one member of the Commission, namely, Major Aziz Abbas, which he alone could not do under the law and as such his pro ceedings were a nullity.
(3) That under law the Commission was bound to administer oath to a person examined by the Commission but no oath was given to any person.
(4) That the report of Commission could not be used against the appellants in any manner while taking disciplinary action but the same was illegally used.
(5) That the Commission of Inquiry violated the rules of natural justice and also did not examine any witness in the presence of appellants.
(6) That no Commission of Inquiry could be set up to initiate dis ciplinary proceedings against civil servants in the presence of Effi ciency and Discipline Rules, 1977.' `
(7) That even if it be conceded for the sake of argument that a Com mission could be appointed in place of an Inquiry Officer or Inquiry Committee as envisaged by the Efficiency and Discipline Rules, 1977, yet the Commission failed to follow the mandatory procedure prescribed under rule 7 of the said Rules.
(8) That the respondent in its capacity as `Authorised Officer' did not apply its independent mind while determining under rule 6 (4) of the Efficiency and Discipline Rules, 1977 whether the charges against the appellants (Civil Servants) were proved or not and the wording of the impugned order shows that the respondent acted under the influence of the report of Commission of Inquiry illegal ly as while passing the orders under appeal report of the Commission was also taken into consideration besides the replies or the appellants to the show‑cause notice. In support of this contention the counsel for the appellants placed reliance on (1) P I. D 1955 Sind 357 ; (2) P L D 1973 Note 15 at p. 27 ; (31 P L D 1970 Lah. 811: (4) P L D 1977 Lah. 1377 ; (5) P L D 1978 Lah. 1166.
(9) That the appellants were charged with the allegations of inefficiency and misconduct but were punished for misconduct and corruption. Thus the ground of corruption was not com municated to the appellants and punishment on this score was illegal.
(10) That reasonable opportunity of showing cause was not afforded to the appellants because report of the Commission was not sup plied to the appellants and that the charges furnished to the appellants were vague and lacking essential particulars in dis regard to the requirements of clause (b) to sub‑rule (3) of rule 6 of the said Efficiency and Discipline Rules, 1977.
Reliance was placed on the following rulings :‑
(1) P L D 1970 Lah. 811 (first para. on page 817) shorn of details. (2) P L D 1978 Lah. 972 (975) B (copy of preliminary enquiry not supplied). 976 C (order of punishment not tenable in law). (3) P L D 1960 Kar. 500 (503)C. (4) P L D 1957 Kar. 54 (60)E. (5) P L D 1957 Kar. 363 (365) A. (6) P L D 1977 A J & K S. T. 127 (130). (7) P L D 1961 Kar. 285 (295)G. (8) 1982 S C M R 126 (Islamabad Club v. Muhammad Alsam etc.). (9) Rashid Butt case (A J & K S. T.) Appeal No. 100 pages 15‑16. (10) 1981 P L C (C. S.) 743. (11) 1981 P L C 700.
11. That the respondent as `Authorised Officer' did not decide consciously that the facts of the case or the interests of justice demand that instead of elaborate procedure laid down under sub‑rule (7) the shorter procedure prescribed under sub‑rule 6(3) would be followed to the matters of the appellants. Mere issuance of show‑cause notice under rule (b) cannot be deemed to be a substitute for a decision of Authorised Officer. In support of his contention the learned counsel referred to P L D 1966 Dacca 569 (d) and also 1981 P L C (C. S ) 877‑879.
12. That the impugned orders were not self‑speaking as it was not mentioned as to which of the charges were proved against the appellants.
13. Lastly, that the procedure provided under rule 6 of the E & D Rules, 1977 is arbitrary, capricious, whimsical and unjust and as such being uncontrolled by any guideline is capable of being misused. Thus, this rule does not provide any reasonable classification or rational basis and is a complete negation of Fundamental Right No. 15 of the Interim Constitu tion, Act 1974 which provides a right of equality to every citizen before law.
This contention was based on :‑--
(1) P L D 1957 S C (Pak.) 157 and P L D 1957 Pesh. 100. (2) P L D 1975 S C 506 app. 66 (153‑155). (3) AIR 1952 S C 75. (4) A I R 1961 S C 1715. (5) P L D 1958 Pesh. 73 and P L D 1958 Quetta 12. (6) P L D 1965 Lah.229
15. In Appeal No. 85 entitled "Ghias‑ul‑Haq v. Azad Government" an additional argument was raised that impugned order was passed by the respondent without lawful authority as under rules the 'Authorised Officer' and 'Authority' in respect of appellant, who was an officer in N. P. S. 19; were the Assistant Director Local Government and the Director Local Government respectively who could pass any order under rules but instead the respondent assumed the powers of both the Authorised Officer and Authority and passed the impugned order in contravention of mandatory provisions of rules.
16. Thus on the basis of above‑mentioned contentions the appellants have prayed that orders of their dismissal from service be set aside as illegal and they may be ordered to be re‑instated into their respective services with effect from the dates of the impugned orders with all the consequential back service benefits.
17. The counsel for the respondent‑Government in his written argu ments has repelled all the contentions of appellants as un‑founded and without any substance and supported the impugned orders to have been passed by the competent authority correctly and in accordance with law and rules after having afforded due and reasonable opportunity to all the appellants to show cause as to why the proposed orders of punishment be not passed against them on the grounds of having committed the charges of misconduct as proved from record. The learned counsel for the respondent has cited certain rulings which will be discussed later while deciding the relevant points in issue.
18. Now we proceed to take up the contentions advanced by the learned counsel for the appellants one by one for discussion and deter mination in the light of the record and relevant law and rules.
19. Arguments of the learned counsel for the appellants based on points Nos.1 to 7 mentioned above revolve round the constitution of the Commission of Inquiry and legality of its final report submitted to the Government‑respondent qua appellants.
20. In our opinion it would be futile to discuss these points and to give any findings on them because all these questions are irrelevant and in effective for the purpose of determining the factum of proof or disproof of the charges brought against the appellants and in consequence thereof com mission of the guilt of misconduct under the Efficiency and Discipline Rules for which the appellants were ultimately penalised. The fact of the matter remains that the Azad Kashmir Government had received general complaints of corruption, misappropriation and misuse of certain funds and grants in its certain departments and in order to satisfy itself about the genuineness or otherwise of the complaints so received, the Government decided to make probe into such allegations through some responsible agency so that if it was satisfied on the report of the Commission that in fact some department or its functionaries were found to be connected with or involved in the charges of corruption and misconduct then disciplinary proceedings could be initiated under the relevant rules applicable to the concerned civil servants. As such the Government appointed two Com missions under the Commission of Inquiry Act, 1956 to make necessary inquiries about the specified matters and to submit its report to the Government. This exercise was undertaken by the respondent Government only to satisfy itself before taking any disciplinary action against any civil servant on any charge that there were prima facie sufficient to initiate proceedings. Thus such an inquiry by the Commission was a preliminary inquiry in nature and could be conducted by the Commission in any manner it deemed fit in the circumstances of each case. The Com mission would have done well if such an inquiry was conducted in accor dance with the principles of natural justice thereby examining witnesses on oath in presence of the concerned officials and even had afforded them reasonable opportunity to explain the matters and to defend themselves. But if the Commission failed to act, as indicated above the appellants have no legal ground of grievance on this score because civil servants are governed only by the Civil Servants Act, 1976 and the Efficiency and Dis cipline Rules, 1977 made thereunder insofar as their any liability in consequence of any disciplinary proceedings is concerned and no proceeding or report independent of the abovementioned law or rules can in any manner affect adversely a Civil Servant in respect of his service rights. In this view of the matter we attach no importance to the pleas raised under points Nos. 1 to 7 mentioned above and thus these objections are rejected as irrelevant and without any substance for the purpose of deciding the appeals in question.
21. Now, adverting to the other objections of the learned counsel for the appellants, we would like to take up those points first which relate to the validity of Rule 6 of the Efficiency and Discipline Rules, 1977 and the procedure adopted by the Authorised Officer in connection with the disciplinary proceedings initiated against the appellants. In this regard the contention of the learned counsel for the appellants is that the pro cedure provided under rule 6 (2 and 3) of the Efficiency and Discipline Rules, 1977 is arbitrary, capricious, whimsical and unjust and being not controlled by any guideline, is capable of being misused. Moreover, as the Rule does not provide any reasonable classification or rational basis, it is a complete negation of Fundamental Right No. 15 guaranteed under the Azad Jammu & Kashmir Interim Constitution Act, 1974, which provides the right of equality before law to every citizen of the State. In support of his contention the learned counsel has relied on P L D 1957 S C (Pak.) 157 ; P L D 1957 Pesh. 100; P L D 1957 Quetta I ; P L D 1975SC506;AIR1952SC75;AIR1961SC1715;PLD1931Pesh. 73 ; P L D 1958 Quetta 12 and P L D 1965 Lah. 229.
22. The learned counsel for the respondent has repelled the conten tion of the learned counsel for the appellants with the argument that by providing two procedures in the rules the intention of the Legislature was to provide for speedy disposal of the proceedings which was to be adopted by the Authorised Officer only in case where in his discretion the circum stances of the case or ends of justice so demanded. Such a classification by the Legislature in the law or rules is permissible and does not offend against the equality provision of the constitution if the classification is rational and reasonable. The learned counsel placed reliance on A I R 1955 S C 166 A I R 1953 S C 404 ; A I R 1958 S C 538 in support of his contention.
23. In order to properly appreciate the delicacy and implication involved in the issue contested by the learned counsel for the parties we have gone through the relevant provisions of the rules and the authorities cited at bar by both the parties.
24. For the sake of thorough appreciation of the matter the relevant provisions of the Efficiency and Discipline Rules, 1977 under assail are reproduced below :‑
Rule 6. ‑Enquiry procedure to be observed by the Authorised Officer.
The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules :‑
(1).........
(2) The authorised officer shall decide whether in the light of facts of the case or interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If, he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the accused and the procedure indicated in rules 7 and 8 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Com mittee, he shall‑
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of action, and
(b) give him a reasonable opportunity of showing cause against that action.
Thus, from the perusal of sub‑rule (2) of rule 6 it is clear that if the authorised officer decides that in the light of facts of the case or the interests of justice an inquiry should be made then he will appoint an inquiry Officer or Inquiry Committee for…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.