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Petitioner: NAJAM-UZ-ZAMAN VS Respondent: ENGINEER-IN-CHIEF, G.H.Q., RAWALPINDIHonorable Justice Muhammad Nawaz AbbasiAbdul Rahim Kazi,Sajjad Ali Shah
2009 P L C (C
2009 P L C (C.S.) 127
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
NAJAM-UZ-ZAMAN and others
Versus
ENGINEER-IN-CHIEF, G.H.Q., RAWALPINDI and 2 others
Civil Petitions Nos.1135-K, 1229-K and 1233-K of 2002, decided on 26th April, 2005.
(On appeal from a common judgment of Federal Service Tribunal, dated 18-10-2001 passed in Appeals Nos.427-K, 482-K and 598-K of 1999).
(a) Service Tribunals Act (LXX of 1973)---
----S. 4---Civil Procedure Code (V of 1908), O.XLI, Rr.30 & 31---Appeal to Service Tribunal---Delay in announcement of judgment by the Tribunal---Prejudice to a party or defeat of ends of justice---Civil Procedure Code, 1908, as a whole, though was not applicable to the proceedings in the appeals before Service Tribunal, but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of O.XLI, Rr.30 & 31, C.P.C.---Remand of the case on the ground of delay in announcement of judgment defeating the ends of justice and causing prejudice to a party---Desirability---Supreme Court while disapproving the practice of delayed announcement of judgments observed that all judicial or quasi-judicial forums, must announce the judgments within reasonable time---Although Courts and Tribunals must announce the judgment within reasonable time but mere delay in announcement of judgment, would not be considered sufficient ground to set aside the same and remand the case if no prejudice was caused to any party on the merits---Principles.
In principle, there can be no departure from the rule that if due to the unnecessary delay in the announcement of the judgment, any prejudice was caused to any party, the case should be sent back to the lower Court/forum for rehearing and decision afresh. Civil Procedure Code as a whole, is not applicable to the proceedings in the appeals before the Service Tribunal but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of Order XLI, rules 30 and 31, C.P.C. The delay even of a lesser period in announcement of judgment in a case, may cause prejudice to a party or defeat the ends of justice, therefore, all forums discharging judicial and quasi-judicial functions, are supposed to follow the law in letter and spirit and must discharge their functions in a judicious manner. In the present case, the Service Tribunal has dealt with all the points and contentions raised in the appeals before it in proper manner and no legal defect or factual infirmity in the judgment causing any prejudice to the petitioners on merits had been found and consequently, remand of the case on this ground was not proper. However, Supreme Court while disapproving the practice of late announcement of judgments, held that all judicial or quasi-judicial forums, must announce the judgments within reasonable time.
Courts and Tribunals must announce the judgment within reasonable time but the mere delay in announcement of judgment, would not be considered sufficient to set aside the same and remand the case if no prejudice was caused to any party on the merits.
Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669; Muhammad Bakhsh v. State 1989 SCMR 1473; Sami -ul-Haq v. Maqbool Hussain Butt 2001 SCMR 1053 and Ali Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 ref.
(b) Civil service---
----Departmental inquiry---Methodology of departmental enquiry and requirements of law elucidated.
The Qanun-e-Shahadat, 1984 has been made applicable to all judicial and quasi-judicial proceedings before any Court, Tribunal or authority when exercising such powers or jurisdiction but in a departmental inquiry, the strict application of rule of evidence is not the requirement of law and an Inquiry Officer need not follow the method of recording the statement of a person by a regular Court or a Tribunal established under the law, therefore, the manner of recording the statement of the petitioner by the Inquiry Officer in question and answer form, would not render their statements inadmissible in evidence. In the departmental inquiry, the statement of a witness or an accused official is not recorded on oath, therefore, it was not necessary for the Inquiry Officer to record the statements of the petitioners in narrative form and their statements recorded by the Inquiry Officer in question and answer form containing their admissions of misappropriation of Government funds were admissible in evidence which could safely be relied upon as conclusive proof of their guilt. In the present case record had not shown that the admissions made by the petitioners in their replies to the questions put to them by the Court of Inquiry, were obtained through coercion and were not voluntary. Law does not emphasise for the strict application of Qanun-e-Shahadat, 1984 to the departmental inquiries rather the applicability of general principles of law of evidence would sufficiently meet the ends of justice, therefore, the objection regarding the method of recording the statements of the petitioners would be of no significance. However, it is an essential requirement of law that the charge must be specific and capable of conveying the exact nature of allegation so that accused officer could meet the charge and he should also be provided proper opportunity of making his defence. This is correct that the proceedings in the departmental inquiry are not judicial proceedings and the Inquiry Officer is not required to strictly follow the procedure of a judicial inquiry but nevertheless, the inquiry cannot be held in an arbitrary manner and rules of natural justice must be followed. In short, in the departmental inquiries, the principles of natural justice and fairness must be adhered to and the Inquiry Officer must provide fair chance to the accused official of cross-examination to the witnesses and production of evidence in rebuttal but the Inquiry Officer is not required to strictly observe requirement of the procedural law in the manner as is followed by the regular Courts and Tribunals established under law. The general practice is that the statement of a witness or an accused official, in the departmental inquiry is recorded in the narrative form but in the present case, the Inquiry Officer had chosen to record these statements in question and answer form and since no specific method was provided in law for recording the statement of a person by the Inquiry Officer, therefore, the manner in which the statements of the petitioners were recorded, was not in violation of law. The Inquiry Officer being not well-conversant with the law, could not be expected to strictly follow the procedure and consequently a procedural mistake, if any, would neither affect the inquiry proceedings nor the ultimate result on merits. It is also not the requirement of law that department must produce large number of witnesses in support of the allegation rather evidence of sole witness or admission of an accused official, can be considered sufficient to prove the charge. In the present case the perusal of the statements of the petitioners made by them before the Inquiry Officer, would show that they consciously and voluntarily admitted their involvement in the transactions without any outside pressure or influence and their admissions having been found correct on the record, would alone be sufficient to fix their responsibility, therefore, no other evidence was required to prove the charge of misappropriation of funds.
(c) Civil service---
----Allegation of embezzlement against employees---Accused employees had not been able to satisfy the Court from the record that they were not provided fair and reasonable opportunity of hearing or the charge was not proved against them in a satisfactory manner---Mere general assertion that accused employees were not provided proper opportunity to defend themselves at the inquiry, would not be sufficient to hold that accused employees were not allowed opportunity to cross-examine the witnesses or inspection of record and production of evidence in rebuttal---Employees were found guilty of the charges by the Inquiry Officer and the competent Authority having gone through the record, had agreed with the findings of Inquiry Officer and further the Service Tribunal having found them guilty of the charges, dismissed their appeals---Supreme Court, in circumstances, declined to take any exception to the concurrent findings of three forums, qua the guilt of the employees and dismissed the petition for leave to appeal.
Abdul Rahim Kazi, Advocate Supreme Court for Petitioner (in C.P. No.1135-K of 2002).
M.M. Aqil Awan, Advocate Supreme Court for Petitioner (in C.P. No.1229-K of 2002).
Manzoor Ali Khan, Advocate Supreme Court and Fiazanul Haq, Advocate-on-Record for Petitioner (in C.P. No.1233-K of 2002).
Sajjad Ali Shah, Dy. A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondents (in all cases).
Date of hearing: 26th April, 2005.
JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.---The above three petitions for leave to appeal have been directed under Article 212(3) of the Constitution of Islamic Republic of Pakistan against a consolidated judgment, dated 30-10-2002 passed by Federal Service Tribunal, at Karachi, whereby three separate service appeals filed by the petitioners, involving the common question of law and facts were dismissed.
2. The charges against Najam-uz-Zaman (U.D.C.), petitioner in C.P.1135-K of 2002 as contained in charge-sheet dated 22-10-1997 issued to him, were as under:--
"(1) whereas, you ..
(a) Ignoring and violating deliberately with mala fide intentions of corruption, the laid down procedures of local purchase of stores.
(2) AND WHEREAS this negligence and commission of above stated irregularities constitute inefficiency and misconduct in terms of Government Servants (Efficiency and Discipline) Rules, 1973 hereinafter referred to as the said rules. It has, therefore, been decided to hold an inquiry against you under the said rules.
(3) AND WHEREAS the authorized officer is of the opinion that the aforesaid charges, if established, would call for a major penalty specified in Rules 4(1)(b) of the said Rules which includes "Removal from Service".
(4) AND WHEREAS P.A. No.25297 Major Naeem Akhtar Garrison Engineer National Defence College Islamabad is hereby appointed as Inquiry Officer in exercise of power conferred by Rule 5 of the said rules to conduct proceedings of inquiry into the said charges.
(5) NOW THEREFORE, you Army No.8465746 Mr. Najam-uz-Zaman Upper Division Clerk, are required under sub-rule (2) of rule 6 of the said Rules to put in your written defence to the said Inquiry Officer within 14 days of the receipt of this charge-sheet and also state whether you desire to be heard in person or lead any evidence in defence.
Abdul Majid, petitioner in C.P. 1233-K of 2002 and Muhammad Nasrullah Khan, petitioner in C.P. 1229-K of 2002, were proceeded against for almost similar charges with different amounts of embezzlement. The charge-sheet served upon them, would read as under:---
"(1)
(a) Embezzled Government funds amounting to Rs.42,04,100 (75% of Rs.56,05,467) in connivance with Army No.8470646 Mr. Tamiz-ud-Din Farooqi, A/XEN, AGE(DP) Karachi and A/No.8465746 Mr. Najam-uz-Zaman U.D.C. incharge E-3 and E-5 section.
(b) Undertaken deliberately with fraudulent intention of unauthorized local purchase of stores worth Rs.56,05,647 to consume the Government funds fraudulently.
(c) Initiated fake demands for local purchase of E&M Stores.
(d) Submitted incorrect and concocted quarterly reports of Bazar Supply and Local Purchase for the quarters ending September, 1995, December, 1995, March, 1996, June, 1996, September, 1996, December, 1996 and March, 1997 to his superior office i.e. AGE(DP), Karachi.
2. AND WHEREAS this negligence and commission of above stated irregularities constitute inefficiency and misconduct in terms of Government Servants (Efficiency and Discipline) Rules, 1973 hereinafter referred to as the said Rules. It has, therefore, been decided to hold an inquiry against you under the said Rules.
3. AND WHEREAS the authorized officer is of the opinion that the aforesaid charges, if established would call for a major penalty specified in Rule 4(1)(b) of the said Rules which includes "Removal from Service".
4. AND WHEREAS P.A. No.25297 Major Naeem Akhtar Garrison Engineer National Defence College Islamabad is hereby appointed as Inquiry Officer in exercise of power conferred by Rule 5 of the said Rules to conduct proceedings of inquiry into the said charges.
5. NOW THEREFORE, you Army No.8464623 Mr. Abdul Majid, Sub-Eng. E&M, Gde-I, are required under sub-rule (2) of rule 6 of the said Rules to put in your written defence to the said Inquiry Officer within 14 days of the receipt of this charge-sheet and also state whether you desire to be heard in person or lead any evidence in defence."
3. The Court of inquiry constituted by Major Naeem Akhtar having held an inquiry into the matter, found the petitioners guilty of the charges and expressed his opinion as under:--
"After having gone through the statements and finding, the Court is of the opinion that:--
15. The L.P. done from 7/95 to 4/97 by AGE(DP) Kci includes numerous stores and repairs which were done on papers only.
16. The whole process of purchase of stores and their consumption demands preparation of documents requiring perusal or signatures of AGE (DP), SDO E&M, UDC Incharge E-3 and E-5 and stock holders/store holder.
17. Since the accused was himself performing the duties of incharge E-3 and E-5 sections therefore, he was responsible for obtaining proper demands of LP from sub-divisions, preparing quotations as approved by AGE (DP) Kci, sending these quotations by mail and arranging their opening after specified days (min. 7 days), issuing supply orders and preparing cheques on receipt of vouchers duly signed by UA, SDO and AGE (DP) Kci.
18. The accused has been ignoring and violating the laid down procedures of local purchase of stores from 7/95 to 4/97. He produced a warning letter of AGE issued to him for disobedience of orders on 18 June, 1996, (Exhibit "H"). In. absence of his written protest, nature of orders is not established. However, as per his Ans. 16 verbal protest was launched only on irregularity of No. of days for opening quotations.
19. The accused has denied charge until he was asked specific question by the prosecution witness and the Court. His plea of obeying the orders of AGE (DP) is not justified as he neither protested in writing to AGE (DP) nor informed any other Senior Officer of office of the department by any means (Ans. 8). Furthermore, had the accused been performing his duties according to rules and regulation there might not have been embezzlement of Government funds. In the light of his Aiis.14 and 15 it is evident that he did not take requisite interest in his duties throughout his tenure of being incharge of E-3 and E-5 sections.
20. Non-scrutiny of the fake demands for LP and incorrect and concocted quarterly reports of LP and issuing quotations to STD's by hand and preparing cheques upon fake vouchers are related to the mala fide intentions of corruption and deliberate embezzlement.
21. Since total embezzled amount is Rs.75,73,987 (Rupees seventy-five lac seventy-three thousand nine hundred and eighty-seven only) as per para.12, therefore, the Court is of the opinion that the accused should be held responsible for ten percent. of this amount which is Rs.7,57,399 (Rupees seven lac fifty-seven thousand three hundred and ninety-nine only)."
The Inquiry Officer, having examined one witness namely, Liaqat Ali, Sub-Engineer (Buildings and Roads) produced by the department, recorded the statements of petitioners and after a detailed scrutiny of relevant record, submitted the inquiry report with the conclusion that petitioners were responsible for causing loss to the Government exchequer.
4. In the, light of the report of Inquiry Officer, the competent authority after giving final show-cause notice to the petitioners, passed the order of their dismissal from service. The petitioners, after availing the departmental remedy, preferred appeals before the Federal Service Tribunal and on dismissal of the appeals, they have filed the present petitions seeking leave to appeal against the judgment of Tribunal.
5. Mr. M.M. Aqil Awan, learned counsel for the petitioner in C.P.1229-K of 2002, has raised a number of grounds in support of this petition and most of these grounds pertained to the appraisal of record involving the factual controversy but we without going into the controversial question of facts, would prefer to attend the questions of law raised before us in support of these petitions. The first question raised by the learned counsel was that the Tribunal, after hearing the arguments in the appeals on 18-10-2001 reserved the judgment and announced it on 3-10-2002 with a delay of about one year, whereas this Court in a similar situation in Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669 having treated the delay of eight months in announcement of judgment not proper, remanded the case to the High Court for rehearing and decision afresh.
In principle, there can be no departure to the rule that if due to the unnecessary delay in the announcement of the judgment, any prejudice was caused to any party, the case should be sent back to the lower Court/forum for rehearing and decision afresh. It may be seen that the Civil Procedure Code as a whole, is not applicable to the proceedings in 'the appeals before the Tribunal but the Tribunal following the basic norms of justice must announce the judgment within reasonable time in terms of Order XLI, rules 30 and 31, C.P.C. The delay even of a lesser period in announcement of judgment in a case, may cause prejudice to a party or defeat the ends of justice, therefore, all forums discharging judicial and quasi-judicial functions, are supposed to follow the law in letter and spirit and must discharge their functions in a judicious manner. In the present case, we find that the Tribunal has dealt with all the points and contentions raised in the appeals before it in proper manner and we having perused the judgment, have not been able to find out any legal defect or factual infirmity in the judgment causing any prejudice to the petitioners on merits and consequently, we would not be inclined to remand the case on this ground. However, we while disapproving the practice of late announcement of judgments, hold that all judicial or quasi-judicial forums, must announce the judgments within reasonable time. The proposition under discussion, was earlier considered by this Court in Muhammad Bakhsh v. State 1989 SCMR 1473; Sami-ul-Haq v. Maqbool Hussain Butt 2001 SCMR 1053 and Ali Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 and the ratio of the above judgments was that the Courts and Tribunal must announce the judgment B within reasonable time but the mere delay in announcement of judgment, would not be considered sufficient to set aside the same and remand the case if no prejudice was caused to any party on the merits.
6. The main contention of the learned counsel for the petitioners in support of these petitions, was that the Inquiry Officer in utter disregard of rule 6 of Government Servants (E&D) Rules, 1973 proceeded with the inquiry and instead of recording the statements of the petitioners in narrative forms, recorded the same in question and answer form in violation of the law on the subject (Qanun-e-Shahadat Order, 1984). Learned counsel submitted that the petitioners having been put incriminating questions were compelled to admit their guilt in replies to these questions and except these admissions of the petitioners in the statements made by them before the Inquiry Officer, there was no evidence direct or circumstantial, to connect them with the alleged transaction of embezzlement or misappropriation of funds. The learned counsel added that the single witness produced by the department before the Inquiry Officer, made a general statement on the basis of hearsay knowledge which would have no evidentiary value and the Inquiry Officer, only on the basis of inadmissible admissions of the petitioners, held them guilty of the charges.
The Qanun-e-Shahadat Order, 1984 has been made applicable to all judicial or quasi-judicial proceedings before any Court, Tribunal or Authority exercising such powers or jurisdiction but in a departmental inquiry, the strict application of rule of evidence is not the requirement of law and an Inquiry Officer need not to follow the method of recording the statement of a person by a regular Court or a Tribunal established under the law, therefore, the manner of recording the statement of the petitioner by the Inquiry Officer in question and answer form, would not render their statements inadmissible in evidence. In the departmental inquiry, the statement of a witness or an accused official is not recorded on oath, therefore, it was not necessary for the Inquiry Officer to record the statements of the petitioners in narrative form and their statements recorded by the Inquiry Officer in question and answer form containing their admissions of misappropriation of Government funds were admissible in evidence which could safely be relied upon as conclusive proof of their guilt. Learned counsel has not been able to show us from the record that the admissions made by the petitioners in their replies to the questions put to them by the Court of Inquiry, were obtained through coercion and were not voluntary. It may be seen that the law does not emphasise for the strict application of Qanun-e-Shahadat Order, 1984 to the departmental inquiries rather the applicability of general principles of law of evidence would sufficiently meet the ends of justice, therefore, the objection regarding the method of recording the statements of the petitioners would be of no significance. However, it is an essential requirement of law that the charge must be specific and capable of conveying the exact nature of allegation so that accused officer could meet the charge and he should also be provided proper opportunity of making his defence. This is correct that the proceedings in the departmental inquiry are not judicial proceedings and the Inquiry Officer is not required to strictly follow the procedure of a judicial inquiry but nevertheless, the inquiry cannot be held in an arbitrary manner and rules of natural justice must be followed. In short, in the departmental inquiries, the principle of natural justice and fairness must be adhered to and the Inquiry. Officer must provide fair chance to the accused official of cross-examination to the witnesses and production of evidence in rebuttal but the Inquiry Officer is not required to strictly observe requirement of the procedural law in the manner as is followed by the regular Courts and Tribunals established under law. The general practice is that the statement of a witness or an accused official, in the departmental inquiry is recorded in the narrative form but in the present case, the Inquiry Officer has chosen to record these statements in question and answer form and since no specific method is provided in law for recording the statement of a person by the Inquiry Officer, therefore, the manner in which the statements of the petitioners were recorded, was not in violation of law. Be that as it may, the Inquiry Officer being not well-conversant with the law, could not be expected to strictly .follow the procedure and consequently a procedural mistake, if any, would neither affect the inquiry proceedings nor the ultimate result on merits. It is also not requirement of law that department must produce large number of witnesses in support of the allegation rather evidence of sole witness or admission of an accused official, can be considered sufficient to prove the charge. The perusal of the statements of the petitioners made by them before the Inquiry Officer, would show that they consciously and voluntarily admitted their involvement in the transactions without any outside pressure or influence and their admissions having been found correct on the record, would alone be sufficient to fix their responsibility, therefore, no other evidence was required to prove the charge of misappropriation of funds.
7. The next limb of the arguments of the learned counsel was that there were only general allegations against the petitioners of causing loss to the Government without bringing on record any evidence showing the actual misappropriation of Government funds and the manner of the responsibility of the petitioners for the alleged embezzlement. The contention of learned counsel was that…
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