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Petitioner: MUJAHID HUSSAIN NAQVI VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR
Court Name: Azad Jammu and Kashmir Service Tribunal Judge(s): Sardar Muhammad Ashraf Khan, Kh. Ghulam Qadir Title:MUJAHID HUSSAIN NAQVI vs AZAD GOVERNMENT OF THE STATE OF JAMMU &
KASHMIR Case No.: Appeal No, 94 of 1979 Date of Judgment:1982-08-23 Reported As: 1982 PLC (C. S.) 770 Result: Order accordingly Judgment ORDER ' KH. GHULAM QADIR (MEMBER).- Appellant Mujahid Hussain Naqvi, Ex-Deputy Director Information Department has assailed the Government Order S&GAD/I-1/2982-3042/78 dated 18th September, 1978 by way of an appeal under section 4 of the Service Tribunals Act, 1975 whereby the appellant was removed from service on the charges of inefficiency, misconduct and corruption under, rule (3) (a) (b) and (c) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. ' The facts that culminated in passing of the impugned order concisely are that Azad Government of the State of Jammu and Kashmir set up two Commission of Inquiries under section 3 of the Commission of Inquiries Act, 1955 to probe into certain allegations of misappropriation, embezzlement and gross misuse etc. Of grants in some departments including Information Department which fell within the purview of Commission of Inquiry No, 2 headed by Brigadier Mohammad Arif Khan. Vide Government Order No, 4031-44,178, dated March 12, 1978 the appellant, alongwith three other officers, was suspended on allegation of misconduct and inquiry entrusted to Commission No, II who probe into the allegations levelled against the appellant. During the inquiry the appellant was summoned by the Commission but, according to the appellant, neither any charge was disclosed to him nor was any evidence recorded in his presence. After the conclusion of inquiry the Commission submitted its report to the Government-respondent who decided to initiate proceedings against the appellant. Accordingly, on 14th May, 1978 the Services and General Administration Department issued a show-cause notice to the appellant under rule 6 (3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 containing five
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charges. The appellant submitted his reply to this show-cause notice refuting all the charges but after 10 days of his reply the appellant received the first charge of the notice in an amended form to which also the appellant submitted his reply. On 26th June, 1978 another show-cause notice was served upon the appellant under rule 6 (3) (b) of the said Efficiency and Discipline Rules containing four charges. The appellant submitted his reply to this notice as well denying all the charges as baseless and untrue. The Chief Executive of Azad Kashmir Government heard the appellant in person in connection with the charges mentioned in the above-quoted two show-cause notices and finally the impugned order was passed awarding the penalty of removal from service. The appellant availed of the departmental remedy and submitted a review petition against the impugned order before the respondent but this attempt proved fruitless as the review petition was rejected. Having exhausted his departmental remedy the appellant has now filed this service appeal calling into question the impugned order as illegal and void on the following grounds :- (i) That the Commission of Inquiry No, 2 was not legally competent to make an inquiry against the appellant. (ii) That the proceedings of the Commission were ex parte, secret and whimsical and as such had no effect in the eyes of law. (iii) That the respondent based the impugned order on the report of the Commission of Inquiry without independently applying its own mind to the facts of the case and the material on record and as such the impugned order is illegal and void. (iv) That the appellant was charged with corruption and misconduct but has been punished for inefficiency as well which is illegal. (v) That the charges were vague and lacking in essential particulars and the appellant was not afforded any reasonable opportunity of showing cause in violation of rule 6(3) of the Efficiency and Discipline Rules and the principles of natural justice. (vi) That the Authority was also "Authorised Officer" in the case of the appellant but did not distinctly act in the capacity of "Authorised Officer". (vii) That the authorised officer before proceeding further is bound to decide whether in the light of the facts of the case or in the interest of justice an inquiry is to be made or not. If he decides in negative then he can have recourse to the summary, arbitrary, and less beneficial procedure laid down under sub-rules (3) and (4) of rule 6 instead of adopting procedure under rules 7 and 8 but no such decision was taken by the Authorised Officer and as such the whole proceedings became illegal. Moreover, the procedure laid down under rule 6 of Efficiency and Discipline Rules is highly discriminatory in nature and contravenes fundamental right of equality before law guaranteed by the Interim Constitution Act. (viii) That the appellant was not afforded an opportunity of showing cause against the proposed penalty which failure has rendered the penalty illegal. (ix) That the penalty of removal from service is highly excessive and unwarranted in the circumstances of the case. ' With these submissions the appellant has prayed for re-call of the impugned order and his re- instatement into service with all back benefits. ' The respondent filed the written statement controverting almost all the objections raised in the memo. Of appeal averring that procedure laid down under the (Efficiency and Discipline) Rules was correctly followed by the competent authority and having found the accused appellant guilty of the charges levelled against him penalty of removal was duly awarded after affording him an opportunity of hearing by the respondent. However, under clause X of para. 9 of written objections it was stated that charges levelled against the appellant in the show-cause notices were crystal clear and the appellant had to defend himself regarding these charges and as such the report of
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the Commission has no bearing so far the present appeal is concerned. In the end it was urged that the appeal may be dismissed with costs. ' The appellant filed a replication without adding any fresh matter to his grounds of appeal and got summoned some relevant record in support of his case and examined two witnesses namely Abdul Qayyum Information Officer and Sheikh Mashood Ahmad, Assistant, Services and General Administration Department on his behalf and also appeared as his own witness. The respondent did not lead any evidence in rebuttal. ' We have heard the arguments advanced by the appellant himself who now is an Advocate and the counsel for the respondent and also carefully perused the record placed before us. Now we proceed to consider and determine the contentions vehemently raised before us by the parties. The appellant who himself argued his case expressly stated before the Tribunal that although he has raised a number of legal objections in memo. Of his appeal, yet he would confine his arguments to only one legal point, that is to say, that he was not afforded a reasonable opportunity of showing cause against the action proposed to be taken against him as contemplated under sub-rule (3) of rule 6 of the Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter called as the Efficiency and Discipline Rules, 1977) and would forego his arguments on all the rest legal points raised in his appeal. Thus the web of his arguments was woven round only this pivotal point and no arguments were made on any other legal ground stated in the memo of appeal. ' While elaborating his arguments on this score the appellant based his contention on the following grounds :- (i) That the charge-sheet was shorn of details and lacked in essential particulars. (ii) That despite his written request no copy of the report of the Commission was supplied or made available to the appellant. (iii) That the appellant was not allowed to inspect the record upon which the Commission of Inquiry had prepared and based its report. (iv) That he was not allowed to adduce any defence in rebuttal. ' On the basis of these flaws the appellant contended that the impugned order was liable to be set aside as illegal for the mandatory provision of sub-rule (3) of rule 6 of the Rules, 197/were flagrantly violated. The appellant substantiated his arguments on these points by referring to judgments delivered in PLD 1970 Lah. 811 ; PLD 1957 Kar. 54 and 363 ; PLD 1960 Kar. 500 and PLD 1978 Lah. 972. Besides this, the appellant argued that even on facts and merits no case was made out against him as alleged in the show-cause notices ' We have studied the relevant provisions of the said (Efficiency and Discipline) Rules, 1977 and have also gone through the rulings cited above relied upon by the appellant in support of his arguments and would, in the first instance. Like to examine whether any infringement of the said rules occurred and, if so, what is its effect on the impugned order. ' The appellant who was a civil servant was proceeded against under the Efficiency Rules, 1977 and was finally awarded major punishment of removal from service by the government in its capacity as Authority. In order to appreciate the objections put forth by the appellant as regards the procedure adopted and the legality and validity of the impugned order it would be appropriate and advantageous to examine the relevant provisions of the said Rules, 1977 in detail to enable us to form correct opinion and give a proper finding vis-a-vis the objections advanced by the appellant. Chapter III of the said rules is captioned as "Inquiry and imposition of penalties". Under this Chapter rule 5 deals with the initiation of proceedings against an accused civil servant and reads as under :- "Rule 5.-If, in the opinion of the authority there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the civil servant."
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' The Azad Jammu and Kashmir Government had already appointed two Commissions of Inquiries if probe into the allegations of misuse and misappropriation etc. Against certain departments and the concerned officers and as a result the case of the appellant was dealt with by Commission of Inquiry No, II who had submitted its report to the Government after making some inquiry against the appellant. The Government, being authority as well as authorised officer itself in the case of the appellant as contemplated under section 2 (b) and (c) of the Rules, 1977 thought it fit to decide to proceed against the appellant as in its opinion there were sufficient grounds in the report of the Commission to do so. ' Now, rule 6 of the said Rules comes into play and prescribe the procedure to be followed by the authorised officer while conducting proceedings against a civil servant. Rule 6 is mandatory in nature as it opens with the wording "the following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules". The relevant sub-rule (2), (3) and (4) of rule 6 and rule8 are reproduced below for convenience and proper appreciation of the prescribed procedure. "Rule 6 (2). -The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through 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 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 committee, 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. (Note. -The proviso not reproduced being irrelevant for the decision of this case). (4) On receipt of explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose minor penalty he shall pass orders accordingly. If it is proposed to pass a major penalty he shall forward the case to the authority alongwith the explanation of the accused and his own recommendation regarding the penalty to be imposed. The authority shall pass such order as it may deem proper. ' Rule 8. Action by the Authority.- In case of any proceeding the record of which has been reported for orders under sub-rule (4) of rule 6 or sub-rule (8) of rule 7 the authority shall, after affording the accused an opportunity of being heard in person, pass such_ orders as it may deem fit." From a careful perusal and study of the relevant rules quoted above it becomes easy to understand that under the Efficiency and Discipline Rules, 1977 two authorities, namely, 'Authority' and 'Authorised Officer' have been assigned distinct and separate functions in their respective capacities to initiate and conclude proceedings against an accused Civil Servant under the scheme of Inquiry. The nature of the procedure to be followed by the Authority and Authorised Officer is mandatory one and it is obligatory on the part of these authorities to follow the same strictly so that, on the one hand, the accused civil servant may have fair and just trial and on the other hand, the proceedings may assume the validity in so far as the compliance of rules or procedure is concerned. ' In the case of the appellant the Government happened to be Authority as well as Authorised Officer as the appellant was as officer of Grade 17. The Government in its capacity of Authority, on the report of Inquiry Commission No, II decided to proceed against the appellant under the provisions of Efficiency and Discipline Rules and then in its capacity as Authorised Officer decided not to have an inquiry conducted through an inquiry officer or Inquiry Committee and straightaway followed a summary procedure prescribed under sub-rule (3) of rule 6 of the said Rules. Under clause (a) of this sub-rule (3) the Government in its capacity as Authorised Officer is bound (1) to
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inform the accused appellant of the action proposed to be taken against him and the grounds of the action and (2) to give him a reasonable opportunity of showing cause against that action. ' Under sub-rule (4) on receipt of explanation the Government as "Authorised Officer' has to determine whether the charge is proved and if the decision is in affirmative and it is proposed to impose a major penalty then the Government in its capacity an Authority can pass such order as it may deem proper but before passing any such proper order the Authority is bound to act under rule 8 and to afford the accused an opportunity of being heard in person. ' Now, having clearly understood and laid down as above the obligatory relevant provisions of the said Rules, 1977 let us examine the case of the appellant in the light of these rules and determine whether the record of the case of appellant fulfils the essential formalities and requirements of rules that have the force of law. ' The perusal of the record clearly reveals that Commission of Inquiry No, II was appointed by the Government under Commission of Inquiries Act, 1956 for inquiries into allegations in general to satisfy itself whether complaint against its officials were based on facts justifying initiation of proceedings under the Efficiency and Discipline Rules, 1977 but it can by no stretch of argument be deemed to be a substitute for an Inquiry Committee to be appointed by the authorised officer (here the Government itself) under sub-rule (2) of rule 6 of the said Rules, 1977. As such the report of the Commission of Inquiry was just a preliminary inquiry on the basis of which the Authority was to decide whether any action against the accused-appellant was justified to be initiated under the said rules. The Commission of Inquiry would have done well if it had associated the appellant in the inquiry throughout but its failure to do so does not in any way give a cause for legal grievance to the appellant and render its proceedings null and ineffective because its probe in the matter was not made under the (Efficiency and Discipline) Rules, 1977. Thus the objection of the appellant, if any, that the Commission conducted inquiry ex parte and recorded evidence against him in his absence is not of an consequence as the report of the Commission cannot legally be read or used as a piece of evidence to prove the charges levelled against him. ' However, the Government in its capacity as Authority was within its premises to feel satisfied by the report of Commission and to decide to initiate proceedings against the appellant but while doing so it was incumbent upon the Authority to strictly follow the prescribed procedure and when it decided not to get an inquiry made by any officer or Committee as envisaged under sub-rule (3) of rule 6 then clauses (a) and (b) of sub-rule (3) come into play and the authority becomes legally bound to inform the accused appellant of (1) the action proposed to be taken against him and (2) the grounds of action and (3) to give a reasonable opportunity of showing cause against that action. These three requirements of procedure are mandatory and imperative in nature and are so interconnected that omission to observe any of them is by itself sufficient to affect fatally with the result that the whole proceedings and the resultant final order of the Authority becomes vitiated and falls to the ground as a futile exercise without any consequence. ' In the case of the appellant the Government in its capacity as Authorised Officer formed its opinion on the basis of the material contained in the report of Inquiry Commission and proposed to take action of dismissal from service and accordingly issued show-cause notices twice, the first containing five charges issued on 4th May, 1978, and the second containing four charges issued on 26th June, 1978. In these show-cause notices it was said that the competent Authority proposes to award punishment of dismissal and that appellant should show cause within seven days as to why he should not be dismissed from service. It was further added in these notices that under rules the appellant was not required to be heard in person. However, to meet the ends of justice he can, be heard in person if he states so clearly in his replies to show-cause notices. ' The appellant submitted his detailed replies to these show-cause notices denying all the charges as baseless and incorrect and after the receipt of his explanations the competent authority offered
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an opportunity of personal hearing to the appellant and after hearing him in person finally passed the impugned order against him. These rules of procedure are based on common sense and principles of natural justice and the object behind them is that the accused civil servants when proceeded against should have a fairplay in his defence and that is why it has been made incumbent upon the authorised officer to inform the accused civil servant of the charges and the grounds thereof, unmistakably so that the accused person may easily and clearly understand as to what charges he has to meet and that what was the material on whit the charge-sheet was based. Not only that the accused officer should only know and understand the nature of the charges but a further duty is cast on the authorised officer that he should give a reasonable opportunity of showing cause against the proposed action. These prerequisite and imperative requirements can be fulfilled only when the charges are clear and self-explanatory containing essential particulars and a copy of the material forming basis of the charges is supplied to the accused person and access to the relevant record for inspection is made possible and sure so that the accused official is enabled to prepare his real defence easily. ' If these formalities are observed then it can very well be said that requirements of rules were complied with and the spirit of the rules was fully carried out for the ends of justice. This inescapable duty of the authorised officer is spelt out from the use of words "he shall" which distinctly refer to the authorised officer who is burdened with the duty to offer reasonable opportunity for showing cause. The expression "reasonable opportunity to show cause" is not an idle or meaningless form but contains a very salutary and substantial provision of law and although this expression is not defined yet what constitute reasonable opportunity can be determined in the light of peculiar circumstances and facts of each case. ' Now, having fully appreciated the scope of clauses (a) and (b) of sub-rule (3) of rule 6 of the Efficiency and Discipline Rules, 1977 let us proceed to test that action of the authorised officer on the touchstone of clauses (a) and (b) of sub-rule (3) and determine whether the necessary and essential provisions of rule were complied with or not. While arguing on legal aspect of his case the appellant emphatically urged that (i) the charges were shorn of details, (2) that neither copy of report of Commission of Inquiry was delivered to him nor he was allowed to examine and inspect the record to enable him to prepare his defence and (3) that no opportunity was given to him to lead evidence in defence. Consequently, relying on PLD 1970 Lah. 811 PLD 1975 Kar. 540 ; PLD 1957 Kar. 363 ; PLD 1960 Kar. 500 and PLD 1978 Lah. 972 he contended that the impugned order was rendered null and void having no legal consequence against his service rights. We have given serious consideration to the contentions of the appellant in the light of the record and have come to irresistible conclusion that the grouse of the appellant so far as the legal infirmities are concerned are largely misconceived and without any substance. It is true that some of the charges are vague and lacking in essential particulars but this flaw in itself would not be I sufficient to render the impugned order null and void because the impugned order does not flow only from such charges. The vagueness of some of the charges will be pointed out in the following paragraphs while discussing the charges on merits. The main complaint of the appellant is based' on the ground that he was not offered a reasonable opportunity of defence before submitting his explanation for the reasons that neither the grounds of action, or for that matter, a copy of the report of Commission of Inquiry was conveyed to him nor he was allowed to inspect and examine the relevant record on the basis of which the charges levelled against him rested despite the fact that he had made written request to the concerned authority in that behalf. According to the appellant failure on the part of the respondent to comply with the mandatory provisions of the rules has prejudiced him irreparably in preparing his defence which fact by itself is a strong ground to render the resultant impugned order passed against him ab initio void and inoperative as
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regards his service rights. We have deeply deliberated over the matter in issue in the light of record and rules and have come to irresistible conclusion that the contention of the appellant is entirely misconceived and unfounded. The first point of the appellant that grounds of action were not conveyed to him because, no copy of the report of Commission of Inquiry was supplied to him before asking him to submit his explanation to the charges is without any force because a civil servant is governed by the Civil Servants (Efficiency and Discipline) Rules, 1977 in the matter of inquiries and disciplinary actions and any infringement of these Rules by the Authority or Authorised Officer would entitle the civil servant to claim security against violations of the rules and procedure that have the force of law. The inquiry conducted by the Commission of Inquiry No, II under the order of the Government-respondent was not tantamount to an inquiry under the Efficiency and Discipline Rules, 1977 but was a preliminary probe to adjudge whether initiation of proceedings under the Efficiency and Discipline Rules was called for or not, The report of the Commission was basically meant for the satisfaction of the Government and under no law or rule such a report could be read or used as a piece of evidence against the appellant with the result that it was in no way obligatory on the respondent to furnish a copy of the report of Commission to the appellant before proceeding to take any action under rules against him. In other words failure to furnish a copy of such a preliminary report does not vest any legal right in the appellant to assail the impugned order finally…
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