Moazzam Hayat, Member.--Appellant Mazhar Hussain, Junior Commercial Assistant (Booking) in the Pakistan Railways, has filed the present appeal under Section 4 of the Service Tribunals Act, 1973 against order dated 21.8.2001 by which he was awarded penalty of dismissal from service. His departmental appeal dated 25.8.2001 was rejected on 5.12.2001. It is prayed by him that the order of dismissal and order of the departmental appellate authority be set aside and he be reinstated into service with back benefits.
2. A show-cause notice was issued to the appellant on 27.4.2001 under the Removal From Service (Special Powers) Ordinance, 2000. It was alleged in the notice that in an inquiry conducted against him it was established that he had misappropriated a sum of Rs, 20205/- from the cash collected in the station on 13.3.2001. The defence offered by the appellant was not found satisfactory resulting into his dismissal from service. It was maintained by his learned counsel that notwithstanding the gravity of the charge no formal inquiry was held against him, causing him serious prejudice.
3. The appeal is resisted by the respondents. It is stated that the proceedings had been taken against the appellant under the Removal From Service (Special Powers) Ordinance, 2000 and in view of the report of the inquiry committee no further inquiry was needed. A legal objection is taken that the appeal is time barred.
4. We have heard the learned counsel for the parties and have also persued the record.
5. The departmental appeal filed by the appellant was decided on 5.12.2001. However, the contention of the appellant is that this order was conveyed to him on 18.7.200. We have seen the record. At various places in the appeal this date is mentioned to be 13.7.2002. However, in the index to the appeal this date is stated to be 18.7.2002. Relying on the affidavit of the appellant, statement by his counsel at bar and also considering the index to appeal we hold that the appeal rejection order had been received by the appellant on 18.7.2002. The memo of appeal was despatched by him through post on 16.7.2002. Under the rules an appeal can be filed in this Tribunal by its presentation before the Registrar. It can also be filed through post. We are of the view that since rules provide filing of appeal through post, therefore, the date on which it is presented before the Postal Department for onward transmission to the Tribunal shall be deemed to be the date of filing of appeal. Accordingly we hold that the appeal was filed by the appeal on 16.8.2002. Since the departmental appeal rejection order had been conveyed to the appellant on 18.7.2002, therefore, the appeal filed by him, through post, on 16.8.2002 was in time. The objection in this regard is overruled.
6. Under the Removal From Service (Special Powers) Ordinance, 2000 the Competent Authority can dispense with a formal inquiry on the basis of documentary evidence. We have perused the show- cause notice dated 27.4.2001, issued to the appellant under the said Ordinance. In this notice it was not mentioned that formal inquiry had been dispensed with. The Competent Authority had thus committed an illegality in not passing any order relating to holding or non-holding of formal inquiry. We are of the further view that when documentary evidence is not available a formal inquiry under the Ordinance becomes mandatory. The respondents in the present case had relied on the preliminary inquiry for recording punishment against the appellant. This was not the correct legal procedure adopted by the respondents. In law, a preliminary inquiry has no value. The purpose of that inquiry is only to collect material against the accused official for initiating proceedings against him. This inquiry can never be a substitute for a formal inquiry which is held after the framing of the charge. We are constrained to hold in the circumstances that two illegalities were committed by the respondents, firstly that no order for dispensation of inquiry was passed and secondly that no formal inquiry was held inspite of the fact that serious charges of misappropriation had been levelled against the appellant. The impugned order cannot be sustained in the above circumstances.
7. For the above reasons we accept the appeal and set aside the impugned order. The respondents are directed to hold a formal inquiry against the appellant and then to decide the matter afresh.
Meanwhile the appellant is reinstated into service but the payment of back benefits shall depend on the outcome of the fresh proceedings.
8. There shall be no order as to costs. Parties be informed.