' AKBAR M.MEMON, MEMBER.---Appellant, hereinabove, who was lastly working as Medical Officer with the respondent, has challenged the order of dismissal dated 30-7-2001. The order in question is reproduced hereunder:- ' "Subject: Dismissal From Service.
1. This has reference to the show-cause notice No,CMO(PS3)/01/02 dated 30-6-2001 issued to you under section 3(1)(b) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance 2000 and your written explanation dated: 18-7-2001 to the above show-cause notice.
2. After due consideration of your explanation and examination of related documents/evidence on record, the Competent Authority has decided to dismiss you from the service of the Corporation in exercise .Of the powers as contained under the provisions of Removal from Service (Special Powers) Ordinance, 2001.
3. You therefore, as per order of the Competent Authority are hereby dismissed from the service of the Corporation with immediate effect i.e, 30-7-2001.
4.You are directed to deposit/surrender the KESC Policy Vehicle to the OIC (Transport) forthwith and deposit KESC Identity Card. Medical Cards and other KESC belongings with the concerned departments and contact the Chief Accountant forsettlement of your dues after obtaining clearance as per laid down procedure.
(Sd).
' Major ' OIC (PERSONNEL)
(SHAHEED HUSSAIN)"
2. Mr. Shafi Muhammad, learned counsel for the Appellant has contended that the appellant, who is a Doctor by profession having acquired the required qualification of M.B.B.S., was appointed as Part-Time Medical Officer vide letter No,OC-33/1497 dated 13-9-1989 and as a result of the appointment letter, the appellant joined the respondent's service on 23-9-1989. He has contended that the appellant was then offered post of Full Time Medical Officer and such interview was conducted by the Selection Board on 13-8-1990 whereafter the appellant was appointed permanently vide letter No,00-MED/1543/1400 dated 15-8-1990. He has contended that the appellant served the respondents with dedication and put in devoted service of 11 years from 15-8- 1990 to 22-5-2001 when he was transferred to Industrial Health Unit on 23-5-2001. He has contended that on 5-7-2001 he was served with a show-cause notice which was replied on 19-7- 2001 where he denied all the allegations, but the respondents, without holding proper inquiry and without affording full chance to the appellant, dismissed him vide letter No,00/PF/1543/2001/1909 dated 30-7-2001 under Removal from Service (Special Powers) Ordinance 2001. He has contended that section 5 and 5(4) of the Removal from Service (Special Powers) Ordinance 2001, has been violated as they have failed to follow the procedure, laid down under section 6 of the said Ordinance. He has further contended that in case the respondents had held preliminary inquiry that was done against one Mr. Jalal where the appellant was called as a witness, but the appellant has, been punished without following the prescribed procedure, which show that he has been condemned unheard. In such circumstances, he has contended that the impugned order is liable to be set aside and the appellant is entitled to be reinstated with all back benefits, as the assertions, made by the appellant in the memo of appeal, have been virtually admitted by the respondents in para-6 of the comments. At the same time only mention has been made in para-6 where it has been submitted that regular inquiry was dispensed with under Section 5(4) of the Removal from Service (Special Powers) Ordinance 2000, but no such order appears to have been passed nor the same has been filed alongwith the comments. In support of his contentions, he has placed reliance on 1997 SCM R 1543 and 1552.
3. Mr. Ashfaq Ayyubi, associate of Mr. Masood Mukhtar Naqvi has filed letter of authority and has argued on behalf of the respondents. He has contended that the appeal, from the face of it is time- barred. He has contended that the appellant has been dismissed from service after serving proper show-cause notice, as required under section 3(1)(b) and 3(1) (c) of the Removal from Service (Special Powers) Ordinance 2000. He has contended that the appellant is alleged to have misappropriated medicines, as such, his appeal is liable to be dismissed.
4. After hearing the arguments of learned counsel appearing for the parties, we have gone through the Authorities cited by Mr. Shafi Muhammadi, learned counsel for the appellant.
5. The present appellant, who was lastly serving as Medical Officer with the respondents, has been dismissed from service on the basis of Show-cause notice under section 3(1)(b) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance. The show-cause notice dated 30-6-2001 is reproduced hereunder:-- ' "Subject: SHOW-CAUSE NOTICE ' You have been found indulged in misappropriation of the medicines in Medical Department by misusing your powers conferred upon you in the capacity of Medical Officer.
' This act of yours falls within the ambit of clause 3(1)(b) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance 2001, which tantamount you to be severely punished,.
' You are, as such, hereby directed to clarify your position and explain within 15 (fifteen) days from the receipt a this showcause notice as to why severe disciplinary action could not be taken against you.
(Sd).
' OFFICIATING CHIEF MEDICAL OFFICER"
The above show-cause notice speaks of misappropriation of medicines in the Medical Department at the hands of the present appellant, but no inquiry appears to have been conducted by the respondents. Even no letter whatsoever has been produced which could show that the inquiry was dispensed with under section 5(4) of the Removal from Service (Special Powers) Ordinance. This shows that proper procedure, as laid down in the Removal from Service (Special Powers)
Ordinance 2000 as amended by Amendment of 2001, has not properly been followed particularly when the appellant had denied theallegations in his reply to the show-cause notice. It has been laid down by the Hon'ble Supreme Court in the Secretary Government of the Punjab, through Secretary. Health Department, Lahore and others v. Riaz-ul-Haq reported in 1997 SCM R 1552.
"(c) Civil Service--- ' ----Termination of service---Misconduct---Regular enquiry---If an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of regular enquiry. The removal or dismissal from service of a civil servant on the basis of summary enquiry is not sustainable in law---Charges of defiance of orders of superiors; being rude to his colleagues and having concealed the factum of having a job in another department, which the civil servant had denied involved factual controversy which could not be resolved without holding regular enquiry and services in such a situation could not be terminated without such enquiry."
' While following the procedure the respondents ought to have conducted the enquiry and in case it was considered necessary to dispense with the enquiry then under rule 5(4) such reason in writing was to be recorded. For the sake of convenience rule 5(4) ibid is reproduced hereunder:-- "5(4) The Competent Authority may dispense with the inquiry under subsection (1) if it is in possession of sufficient documentary evidence against the accused, or for reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry."
' Apparently no such order is available and in case of denial, Inquiry Officer was to be appointed and under Section 6 the inquiry Officer or Inquiry Committee had to perform its duty according to the procedure, laid down in the Ordinance.
6. As regards the objection, raised by Mr. Ashfaq Ayyubi about limitation, we want to bring it on record that the dismissal order was passed on 30-7-2001. On 11-8-2001 the appellant submitted his departmental appeal which remained unresponded whereafter the appellant filed service Appeal bearing No,1341(K)(CE) of 2001 before this Tribunal before expiry of statutory period. On our pointation, the appeal was withdrawn whereafter present appeal has been filed. Even otherwise the rejection order is dated 14-9-2001 and keeping in view the rejection order, the appellant ought to have filed the appeal on or before 14-10-2001. However, considering the affidavit annexed to the application under section 5 of the Limitation Act where mention has beenmade that there is some ambiguity in section 9(2) and section 10 of the Ordinance, as such, the appellant filed pre mature appeal before this Tribunal, which was subsequently withdrawn. Thereafter on the next date he has filed appeal before this Tribunal, as such, while accepting the assertions made by the appellant in the affidavit annexed to the application under section 5 of the Limitation Act, we condone the delay, as it was not intentional.
7. At the same time, it is shocking that appellant had taken a plea that in preliminary inquiry against one Mr. Jalal, he was called as a witness and thereafter, he has been awarded punishment of dismissal from service, which shows that the respondents have acted with some ulterior motive.
Had there been misappropriation on the part of the appellant, then they should have conducted full-fledged inquiry, which is missing.
8. In such circumstances, we are of the view that the impugned order is not sustainable.
Accordingly we while allowing the appeal, set-aside the impugned order dated 30-7-2001 and direct the respondents to reinstate the appellant in the same position and to hold fresh inquiry on the basis of same show-cause notice and to afford full chance to the appellant to cross-examine all the witnesses and to put up his case, within 4 months from today. Question of back-benefits would depend on the report of inquiry. In case inquiry is not conducted and completed within the stipulated period, the appellant would be entitled to all the back-benefits.
9. In the circumstances of the case, there will be no order as to costs. Parties be informed accordingly.