RASHID ALI MIRZA, MEMBER.- Appellant has filed this appeal under section 4 read with section 2-A of the Service Tribunal Act, 1973 for assailing Respondent No.2's order dated 25/11/2002 whereby the Appellant's Departmental Appeal dated 04/12/2002 was rejected on 25/06/2003.
2. The brief history of the case is that the Appellant joined the Respondent-Organization in 1970 as Junior Engineer after qualifying B.Sc. Engineering Exam. He was promoted as Executive Engineer in 1976 and was allowed move-over to B-19 in 1984. Appellant qualified the Management Course which was the prescribed Departmental Examination for promotion to the post of superintending Engineer. The entire service record of the Appellant is un chequered and unblemished. There was no minor/major punishment at the discredit of the Appellant throughout his service. ACRs of the entire service career of the Appellant are intact, perfect and above board. During service one minor punishment was awarded which is sub judice in Federal. Service Tribunal Lahore. Appellant while posted as Principle Regional Training Centre HESCO Jamshoro was served with show-cause notice along with copy of the enquiry report by the Respondent No.2 alleging therein that while the Appellant was posted as Store Manager Regional Store HESCO Hyderabad, failed to monitor the affairs of Regional Store HESCO Hyderabad during tenure of posting w.e.f. 24/06/1086 to 26/10/1989 and 08/12/1991 to 15/03/1992, which caused shortage of 6.434 numbers LTPCC Poles during the periods 6/86 to 2001 as the Appellant was reportedly to have blindly relied upon the subordinate i.e. ASM, SSK and JSK as such WAPDA sustained heavy loss of Rs.3,96,85,521/-. The Appellant tendered his reply to the said Show-Cause Notice and rebutted all the charges which were levelled against him. it was contended by the Appellant that in the enquiry report it was not specifically cleared as to losses if any occurred during the tenure of posting of the Appellant. The Enquiry Committee in the body of the report had written that as stay of the Appellant was short, manufacturing of Poles started in 1989 as such statement of Appellant was not recorded, facts were not checked and reconciled by the Enquiry Committee with reference to the posting of the Appellant which had been as RSM Hyderabad w.e.f. 24/06/1986 to 26/10/1989 (First tenure) and 08/12/1991 to 15/03/1992 (2nd tenure), whereas the first tenure was spelt w.e.f. 24/06/1986 to 08/03/1989 and 22/05/1989 to 26/10/1989 and the gape from 09/03/1989 to 21/05/1989 was due to under training of the Appellant for middle management training at Lahore for 10 weeks and during the period the charge of the store had been with Mr. S.M. Iqbal ASM (now expired). The Enquiry Committee absolved the Appellant by declaring no shortage of Poles either at Kotri or Hub, where the Poles Plants had been operating tenure of posting of the Appellant. The shortage was possible only if the balance of stock in the store was over and above the quantity was shortage and no shortage was possible if the items had not been in the stocks or less than the quantity of shortage hence there had been no shortage during the tenure of posting of the Appellant. The Appellant further contended that 2nd tenure of the Appellant lasted for three months w.e.f. 08/12/1991 to 15/03/1992 and that very the stocks on taking up charge on 08/12/1991 had been 7677, at the the of relinquishing the charge on 15/03/1991, the stock has been 8794 and stocks received during the period 3276 whereas total issue during the period had been 2157. As per chart that balance left by the Appellant on 15/03/1992 had been more than that received by the Appellant on 08/12/1991. No shortage occurred not was reported during the tenure of field staff and contractors. During tenure of posting the Appellant did not rely upon blindly upon the subordinate and the Appellant had official duties and obligations as per rules. The Enquiry Committee has not examined the Appellant. After tendering reply to show- cause notice to the Respondent No.2, the Respondent No.2 on 25/11/2002 imposed the punishment of censure upon the Appellant vide order No.CE/HESCO/DIR(ADMN)A-2/C-8447-53 and a conveyed such enter of punishment to the Appellant on 26/11/2002. The Appellant feeling aggrieved and dissatisfied with the impugned order of censure dated 25/11/2002 sent his departmental appeal on 14/12/2002 to the Respondent No.1 for setting aside the order of censure awarded by respondent No.2.
3. The Respondent filed their Parawise Comments.
4. In the Parawise Comments the Respondents submitted that an Inquiry Committee was constituted to probe into the matter of embezzlement of it. PCC Poles. The Inquiry Committee submitted its report by recommending that the action should be taken against all Regional Store Managers posted during the said period. On the basis of the Inquiry Committee a Show-Cause Notice dated 14/10/2002 under Removal from Service (Special Powers) Ordinance 2000 was served upon the Appellant. They have added that the defence reply of the Appellant to the Show-Cause Notice dated 14/10/2002 was quite unsatisfactory , hence, it was rejected having no merits by the competent authority. Because, all the action was taken on the recommendations of the Inquiry Committee, which was constituted under the supervision of most experience officers, it was fully based on facts and figures and after examining the officers/officials. The defence reply of the Appellant was not satisfactory therefore, the competent authority/ Chief Executive Officer HESCO imposed penalty of Censure upon the Appellant vide office order dated 25/11/2002. The have further submitted that it has already been proved by the Inquiry Report that the Appellant just act as titular Regional Store Manager, all the business was handled by his subordinates which shows his lack of performance of official job and infirmity in handling with his lower staff, therefore, his plea is drastically condemned.
5. We have heard both the learned counsel appearing the parties and perused the record.
6. The Enquiry Committee in the body of the report had written that as stay of the Appellant was short, manufacturing of Poles started in 1989 as such statement of Appellant was not recorded, facts were not checked and reconciled by the Enquiry Committee with reference to the posting of the Appellant which had been as RSM Hyderabad w.e.f. 24/06/1986 to 26/10/1989 (First tenure) and 08/12/1991 to 12/03/1992 (2nd tenure), whereas the first tenure was spelt w.e.f. 24/06/1986 to 08/03/1989 and 22/05/1989 to 26/10/1989 and the gape from 09/03/1989 to 21/05/1989 was due to under training of the Appellant for middle management training at Lahore for 10 weeks and during the period the charge of the store had been with Mr. S.M. Iqbal ASM (now expired). The Enquiry Committee absolved the Appellant by declaring no shortage of Poles either at Kotri or Hub, where the Poles Plants had been operating tenure of posting of the Appellant. The shortage was possible only if the balance of stock in the store was over the above the quantity was shortage and no shortage was possible only if the items has not been in the stocks or less than the quantity of shortage hence there had been no shortage during the tenure of posting of the Appellant. The Appellant further contended that 2nd tenure of the Appellant lasted for three months w.e.f 08/12/1991 to 15/03/1992 and that very the stocks on taking up charge on 08/12/1991 had been 7677, at the time of relinquishing the charge on 15/03/1991, the stock has been 8794 and stocks received during the period 3276 whereas total issue during the period had been 2157. As per chart that balance left by the Appellant on 15/03/1992 had been more than that received by the Appellant on 08/12/1991. No shortage occurred nor was reported during the tenure of field staff and contractors. in the enquiry report it was not specifically cleared as to losses if any occurred during the tenure of posting of the Appellant.
6. The Enquiry Committee in its report, has mentioned the following remains which are reproduced hereunder: "Muhammad Noor Shaikh (6/86 to 10/89 and 12/19 to 3/92)
The stay of Mr. Muhammad Noor Shaikh as a Store Manager was short as manufacturing of Poles started in 1989, therefore, his statement has not been recorded. More over, he is not available at Hyderabad because of his posting at Lahore".
7. We have come to the conclusion that the Appellant was not associated in the enquiry proceedings and there is also material in the disciplinary action surmounting against the Appellant by the Respondent No.2, complainant and witnesses were never called for or confronted the Appellant, hence the enquiry suffers from material irregularity and legal infirmity, Reliance is placed on 1997 TD (service) 247, 2000 PLC (CS) 375, PLJ 1978 TRC (Service 247 and 1986 PLC(CS) 984. The Appellant did not commit any misconduct not caused any loss to the WAPDA material as is evident from enquiry report, hence the punishment so awarded by the Respondent No.2 is not proper, legal and appropriate rather vague and over bearing which is set aside. Reliance is placed on PLC )CS)
933. Before awarding the punishment not personal hearing was given to the Appellant by the authority as such imposition of punishment without affording the chance of personal hearing is illegal. Reliance is placed on 1986 PLC (CS) 253 and 419, 2003 PLC (CS) 365 and 1994 SCME-2232.
Appellant has been awarded punishment on the basis of negligence being Store Manager Regional Store HESCO Hyderabad for the charges of slack supervision which is unwarranted in law.
During the course of enquiry the Appellant was not called for by the Enquiry Committee to get statement of the Appellant and reply to certain questions prepared by the Enquiry Committee. The enquiry if any was conducted by the Enquiry Committee in question and answer forms at the back of the Appellant which is not allowed under the law of the land. Reliance is placed on 2O0O PLC(CS)
857, 1996 SCMR 802 and 2001 TD (Service) 362.
8. In view of above discussions, the appeal is allowed and both the orders i.e. Of censure dated 25/11/2002 passed by Respondent No.2 as well as of rejection dated 25/06/2003 passed by Respondent No.1 being null and void are set aside. Orders accordingly.
9. Copies of the judgment by sent to the parties and to the relation quarters under registered cover under rule 21 of Service Tribunal.