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Petitioner: Syed GHULAM ABBAS ASHRAF VS Respondent: PROVINCIAL DIRECTOR, LOCAL FUND AUDIT, PUNJAB, LAHOREHonorable Justice Muhammad Sarfraz Khan JhawariAsif Nazir Awan,Malik Javed Iqbal
2009 P L C (C
2009 P L C (C.S.) 630
[Punjab Service Tribunal]
Before Muhammad Sarfraz Khan Jhawari, Member-II
Syed GHULAM ABBAS ASHRAF, EX-AUDITOR
Versus
PROVINCIAL DIRECTOR, LOCAL FUND AUDIT, PUNJAB, LAHORE and another
Appeal No.700 of 2002, heard on 29th January, 2004.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---
----Rr. 2(5), 3, 4(1)(b)(iv) & 5---Punjab Service Tribunals Act (V of 1974), S.4--Removal from service---Appeal---Service of the appellant was brought to an end after charge-sheeting him and holding enquiry against him on certain charges of inefficiency, corruption etc.---Appellant had levelled a serious charge of its being prejudiced against the Authority---Appellant had also submitted an application stating therein that Authority had become not only prejudiced, but also inimical on account of the complaint lodged by the appellant, against it to the high-ups---Said allegations levelled against Authority in the case of the appellant, had not been refuted---Under R.2(5) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, the Authority, who was personally interested in the result of proceedings was not proceeded against the case; and the Authority was required to report the matter to the Appellate Authority to which the orders passed by the Authority were ordinarily, appealable; and such Appellate Authority was to appoint an authorized officer of the corresponding rank and status to act as the Authority---Appellant could not expect justice from the Authority with whom it had strained relations due to the complaints as well as lodging F.I.R.---Inquiry proceedings in the case, in circumstances, were not conducted in a proper and transparent manner---Impugned orders passed by the departmental Authorities were set aside and the appellant was ordered to be reinstated in service---Intervening period between removal from service and reinstatement would be treated as extraordinary leave without pay.
(b) Administration of justice---
----Justice should not only be done, but manifestly and undoubtedly should be seen to have been done---To achieve that objective/goal, it was of prime importance that a judge/person equipped with the authority of decision should not be having any sort of a personal interest in the outcome of the matter under issue before him---Conduct of proceedings should not generate any reasonable apprehension in the mind of a person that the deciding Officer, by any manner was prejudiced against it.
2003 SCMR 104 rel.
Asif Nazir Awan for Appellant.
Malik Javed Iqbal, District Attorney for Respondents.
Date of hearing: 29th January, 2004.
JUDGMENT
MUHAMMAD SARFRAZ KHAN JHAWARI (MEMBER-II).---This appeal has been submitted under section 4 of the Punjab Service Tribunals Act, 1974.
2. Brief facts are that the appellant was charge-sheeted by respondent No.2 on 19-8-1998 and 15-9-1998 on the following allegations:--
(a) While posted as an Auditor Incharge Municipal Committee Haveli Lakha, the appellant failed to point out losses in various leases and excess payment in works bills in connivance with (he administration of said Municipal Committee.
(b) The appellant managed to draw conveyance allowance @ Rs.130 p.m. from 3/92 to 12/96 fraudulently when on demand the appellant failed to produce registration of his Motor Cycle.
(c) The appellant absented from duty on various dates enumerated in the charge-sheet while posted as Auditor Incharge Municipal Committee, Muridke.
(d) The appellant formed an illegal "Local Fund Audit Staff Association."
(e) On 18-8-1998 the appellant took away the complete record of a Municipal Committee Muridke to avoid inspection of respondent No.2.
The appellant submitted a detailed reply to the charge-sheet wherein he refuted the charge levelled against him. The inquiry proceedings were initiated against the appellant by the Inquiry Committee. The appellant appeared before the Inquiry Committee and requested to provide relevant documents on basis of which the charges were levelled but the Inquiry Committee did not accept the genuine request of the appellant at the behest of respondent No.2. The appellant submitted an application on 25-10-1999 to respondent No.2 stating that since the respondent No.2 has become not only prejudiced but also inimical on account of complaints lodged by the appellant to the high-ups and to the Anti-Corruption Establishment, the respondent No.2 cannot act as Authority in the case of the appellant in terms of Rule 2(v) of E&D Rules, 1999. Copy of the letter is annexed as Annexure `M' whereas the complaints are annexed as Annexures "N/1" to "N/7". The respondent No.2 had also lodged a false FIR No.142 of 1998 under sections 506/342, P.P.C. at Police Station Mozang Lahore for exerting pressure upon the appellant to withdraw the complaints. However, during investigation, the occurrence narrated in the said F.I.R. was found false and the F.I.R. was quashed. Ultimately, the service of the appellant was brought to an end vide impugned order dated 22-11-1999 passed by respondent No.2. He preferred the departmental appeal which could not succeed and met the fate of dismissal vide order dated 2-3-2002 Hence, the present appeal
3. It has been contended by the learned counsel for the appellant that the respondent No.2 was biased and prejudiced could not act as authority in the case of the appellant. It was further emphasized by the learned counsel for the appellant that before recommending a major penalty to the authority, the Authorized Officer was required to give a notice to the appellant to offer an explanation against the proposed action but no such notice was issued to the appellant in the present case. The respondent No.2 was also duty bound under the rule to provide the appellant personal hearing before the imposition of major penalty but he acted vindictively and without issuance of any notice, imposed the major penalty of dismissal from service. It was lastly submitted that the impugned order was passed which is .based on mala fide, personal grudge and enmity.
4. Conversely, the learned District Attorney assisted by the departmental representative supported the impugned order.
5. Arguments heard and record perused. The appellant in paras. Nos.7, 8, 9, 10 have levelled a serious charge of being prejudiced against the authority (respondent No.2). He had also submitted an application on 25-10-1999 to respondent No.1 stating therein that the respondent No.2 has become not only prejudiced but also inimical on account of the complaints lodged by the appellant to the high-ups. These allegations levelled against the respondent No.2 who was the authority in the case of the appellant have not been refuted. As per Rule 2(5) of the Punjab Civil Servants (E&D) Rules, 1999, the authority who was personally interested in the result of proceedings was not to proceed with the case and the authority was required to report the matter to the appellate authority to which the orders passed by the authority are B ordinarily, appealable and such appellate authority was to appoint and authorize another officer of the corresponding rank and status to act as the authority.
6. Before going into the merits of the case, the learned counsel for the appellant has indeed impressed me and a decision can be rendered at this stage on the preliminary objection raised by him. The learned counsel for the appellant stated that it has been established on the record that the respondent No.2 who was the authority in the case of the appellant was prejudiced and had become inimical to the appellant. Taking the arguments to its logical conclusion, it is submitted with emphasis that the allegations having been levelled by the appellant against the authority/respondent No.2 which have not been refuted by the respondents, the apprehension must have been embedded in the mind of the appellant that no justice will be done to him if the respondent No.1 was to act as authority as he would took his opportunity of acting vindictively, therefore, the impugned order being laced with mala fide cannot be sustained. Learned District Attorney when confronted with the said proposition found it difficult to reply effectively.
7. It has been held in 2003 SCMR 101. It is an age-old fundamental principle of law that justice should not only be done, but manifestly and undoubtedly should be seen to have been done. To achieve this objective/goal, it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue before him. The conduct of proceedings should not generate any reasonable apprehension in the mind of a person that the deciding Officer was by any manner prejudiced against him.
8. Following the dictum in the precedent case, I am of the considered view that the appellant could not expect justice from the authority with whom he had strained relations due to the complaints as well as lodging F.I.R. In the given circumstances, the inquiry proceedings were not conducted in a proper and transparent manner.
9. The upshot of the above discussion is that the appeal is allowed. Impugned orders passed by the departmental authorities are set aside and quashed. The appellant shall be reinstated in service and the intervening period between removal from service and reinstatement shall be treated as extraordinary leave without pay. A regular inquiry shall be held by an officer of independent repute and integrity other than the former authority as well as inquiry officer, strictly in accordance with law. The respondents are further directed to conclude the regular inquiry proceedings within a period of 3 months.
H.B.T./27/PST Appeal allowed.