' MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against the judgment dated 1-7-2003 passed by Federal Service Tribunal whereby the appeal filed by the present appellant against the penalty of dismissal from service imposed upon him by the competent authority, was dismissed.
2. The facts in the background are that appellant while posted as Assistant Director (Arboriculture)
Thermal Power Station, Guddoo, was served with the letter of explanation containing the allegation of causing financial loss to the WAPDA as under:-- "You did not prepare any drawing for a realistic estimate during arboriculture work at Thermal Power Station, Guddu. You could have saved expenditure on ground levelling, turning and installation of two tube-wells. Thus, you had caused a loss of Rs,1,408,509.20 to WAPDA. At least the expenditure of Rs,1,73,478.61 incurred on the installation of two tube-wells could have been easily saved."
The appellant in his reply, denied the allegation as under:--- "
3. That my reply to the alleged charge/allegation of non-preparation of any drawing for a realistic estimate during the process of arboriculture work at Thermal Power Station and loss of Rupees 14,08,509.20 and expenditure of Rs,173,478.61 incurred on the installation of two tube-wells is also based on following reasons and cogent grounds as under:--
(a) That the estimate was prepared according to the schedule of WAPDA composite rate of 1990 along with 20% premium allowed, after approval and sanctions of the Chief Engineer TPS Guddu.
(b) That the total expenditure of the project was Rs,18,09,440, whereas tender was of Rs,23,35,000 wherein loss of Rs,14,08,509.20 has been imaginary, rather ludicrous.
(c) That the date of the tender was 25-6-1996 and project was completed on 24-1-1997. As such, action after two years at belated stage is not tenable nor according to principle of natural justice, when all the superior authorities had investigated, enquired, verified, issued, instructions and approved diking the process of execution of the project.
(d) That the estimation of arboriculture work at Thermal Power Station, Guddu was duly based on the drawings available in the record. As such, suppositions regarding extra expenditure on ground levelling, turfing and installations of two tube-wells, are not tenable in view of the WAPDA composite schedule rates of 1990.
(e) That the installation of two tube-wells Were very essential in view of the required need of the thickly populated colony, building, playgrounds, parks and other amenities, as during the summer season requirement of the water is acute need of the said project on account of hottest area of the country and dry land, otherwise, estimated by the two Sub-Engineers Civil deputed by the Chief Engineer TPS Guddu under his supervision. The estimation carried out by them under WAPDA composite schedule rates of 1990. As such, saving of expenditure on two tube-wells on my part does not arise nor attracted to me.
(0 That the parks and two tube-wells are in existence as well as in operation and in use of the employees of the colony, based on the estimation which was executed and finalized under supervision of the Chief Engineer, who was authority of the project work.
(g) That it is also pertinent to mention here, that the civil work of the project was direct under execution and supervision of two Sub-Engineers Civil, who had prepared estimation of the civil work under direct supervisions of the Chief Engineers, TPS, Guddu and Director Technical, TPS, Guddu, including drawings of the civil works available in the record of WAPDA, namely, fencing, earthwork levelling, dressing and installation of two tube-wells. As such, I was not concerned with the civil work of the project and only arboriculture works of the project at site was under my supervision.
(h) That during the progress of the project of work disputed in the show-cause notice and explanation, on fictitious complaints, fact finding investigations/enquiries were ordered through Honourable Chairman, WAPDA's Inspection Team, namely, Technical Inspection II, comprising on two members of Monitoring Cell (Civil), monitoring and surveillance division, who conducted the inspection and verify the project work in the month of December, 1996 at the site and found no any irregularity in the project work (Report enclosed).
(i) That during the process of execution and completion of project work, that the work was time and again inspected and verified by the Chairman WAPDA's Inspection Team (M&S) Division and other authorities, who had also issued instructions for the execution of the work, which were followed and carried out in letter and spirit. As such, charge/allegation of the show-cause notice has not been based on correct information rather based on hypothetical surmises and conjectures."
3. The competent authority without holding a regular inquiry in the matter, issued final show-cause notice of the dismissal to the appellant and vide order, dated 21/22-12-1999 dismissed him from service. The appellant, after availing the departmental remedy, filed an appeal before the Federal Service Tribunal under section 4 of the Federal Service Tribunals Act, 1973, which was dismissed by the Tribunal. The leave was granted in this appeal vide order, dated 3-8-2004 as under:-- "Petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), dated 1-7-2003, passed in Appeal No,81(K)CS of 2000.
' It is inter alia contended that no regular enquiry was held against the petitioner before inflicting major penalty of dismissal from service and recovery of huge amount from him; that enquiry report by the Director-II Works supporting the case of the petitioner was not at all considered by the Authority as well as the Tribunal; that no grounds were recorded for dispensing with the regular enquiry before taking action against the petitioner and that the principles of natural justice were flagrantly violated A in this case.
' Points urged required serious consideration. Leave to appeal is, therefore, granted to consider, inter alia, the above submissions."
4. Learned counsel for the appellant has contended that in reply to the letter of explanation, the appellant having specifically denied the allegation contained therein, explained the factual position in detail, therefore, it was essential for the competent authority to hold a proper inquiry in the matter before passing the final order as has been held in Basharat Ali v. Director Excise and Taxation, Lahore PLJ 1987 SC 1393; Zahoor Ahmed v. WAPDA 2001 SCMR 1566; Syed Yaqoob Shah v.
Xen PESCO (WAPDA) Peshawar PLD 2002 SC 667 and Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110. The learned counsel submitted that the charge against the appellant involving factual controversy could not be proved without recording the evidence and providing proper opportunity to him to cross-examine the witnesses and produce evidence in rebuttal whereas the competent authority on the basis of a preliminary inquiry which was conducted in his absence, held him guilty of the charges. In nutshell, the argument of learned counsel was that the appellant was awarded the major penalty of dismissal from service without providing him proper opportunity of hearing and he was condemned unheard.
5. Learned counsel for the respondents, on the other hand, has contended that allegations against the appellant were proved on the basis of official record, therefore, there was no need of a regular inquiry and the competent authority after taking into consideration the reply of appellant to the show-cause notice and giving him personal hearing passed the final order strictly in accordance with law.
6. The pivotal question requiring determination would be whether in the nature of allegation contained in the letter of explanation, the dispensation of a regular inquiry was justified or such an inquiry was essential.
7. The perusal of the charge and the reply of the appellant would show that without ascertaining the correct factual position, it would not be possible to hold the appellant responsible for causing the loss to the exchequer. The competent authority may, in exercise of the powers under Rule 5(iii) of the (ibid) Rules, by dispensing with the requirement of regular inquiry, follow the summary procedure, but this power must be exercised in exceptional cases, in which either there is no factual controversy or the facts are admitted. The competent authority may, without holding a regular inquiry, pass the final order, if the charge is not based on disputed questions of facts, otherwise dispensation of regular inquiry would amount to deprive a person from right of defence and fair opportunity of hearing. The matter involving controversial questions of facts cannot be decided without detailed scrutiny and proper appreciation of oral and documentary evidence, and this is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross-examining the witnesses and to make his defence. Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (CS) 868 it was held by this Court as under:-- "(5) It has been consistently held by this Court that there is a marked distinction between Rule 5 and Rule 6 of the Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed With, whereas the later Rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses is support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the. Case of Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222."
8. It is well-settled principle of law that in the normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner, as the dispensation of regular inquiry in such a case would amount to defeat the law and condemn a person unheard. The discretionary power of the dispensation of the regular inquiry should be exercised only in exceptional circumstances and not as a general rule in every case, as the exercise of the power of dispensation of regular inquiry in a. Case involving factual controversy is against the spirit of law and the concept of substantial justice. The departmental authorities are certainly not required to follow the procedure of the regular Courts and observe the technicalities of law for determining the question of guilt or innocence of a person, but the fair and reasonable opportunity of hearing to enable a person to make his defence, is an inalienable right of a person facing the charge of misconduct. In the present case, the factual controversy regarding the need of installation of two tube-wells and the correctness of the estimates of arboriculture work could not possibly be resolved without a regular inquiry with participation of appellant and detail scrutiny of record to ascertain that in what manner the appellant was responsible for causing loss to the exchequer.
9. In the light of foregoing discussion, we allow this appeal, set aside the impugned judgment of the Tribunal and reinstate the appellant in service with permission that department may hold a proper inquiry into the allegations against the appellant which should be concluded within six months. The payment of back benefits for the period during which the appellant remained out of job, shall be subject to the result of the inquiry. This appeal is accordingly allowed with no order as to costs.