1. DAUD KHAN (CHAIRMAN).------While posted as Staff Officer-II, in the Office of Director of Works, Chief Engineer, PAF AIR Headquarters, Peshawar, the appellant was served with a show-cause notice dated 15th October, 1976 on the following four grounds : -
(i) Accepting substandard works from contractors for ulterior motive ;
(ii) Because your financial powers are limited to Rs. 50,000, you break up and sub-divided works beyond that limit to bring it within your com--petence so that you can oblige your favourite contractors with impunity ;
(iii) Pilfered building material from Government Stores ; and
(iv) Recently stole and sold in local market electrical equipment for Rs. 20,000.
2. On 19October, 1976, appellant Mr. Banaras Khan, submitted his detailed reply rebutting all the allegations. Despite his denial he was com--pulsorily retired without inquiry on 30th of October, 1976, under Government Servants (Efficiency and Discipline) Rules, 1973.
3. His review petition dated 27th November, 1976 is still pending decision. The appellant, however, has filed this appeal after expiry of ninety days under proviso (a) to section 4 (1) of the Service Tribunals Act, 1973. According to him, the impugned order is illegal, mala fide and arbitrary. He prays for its vacation and re-instatement into service with all the benefits accruing therefrom.
4. His principal challenge to the order in question, in want of any substance in the charge. He has, however pressed into service technical provisions as well to highlight arbitrary nature of the order and its mala fides.
5. The technical points raised are charge of authorised officer from Secretary, Ministry of Defence to Secretary, Establishment Division, for a period of only three months-interregnum only lasting 9thth October, 1970 and 7 January, 1977. The contention is that this temporary phrase proves legal mala fides. Want of inquiry and lack of due compliance with the rules like supply of statement of allegations are also set up to the same end.
6. However, we do not have to go into technical failures. The mainstay of respondents case, was that appellant had split up individual contract to bring it within his own financial powers and that he had pilfered certain stores anti also favoured contractors by accepting substandard works. Out of the respondents, Secretary, Ministry of Defence and Engineer-in-Chief, who are directly incharge of work of the appellant, have clearly admitted that no such bungling was detected by them. In fact they have under mined the case by admitting that powers to accept contracts upto two lakh as per Ministry of Defence Letter No. 7001/MES-REGs/Paras/Rev 1764/D3 (A)/74, dated 18th April, 1974, were delegated and vested in the appellant. So the question of arbitrary split of work is disproved by the concerned Department which has also denied pilferage of any stores or illegal sale of any electricity equipment. This admission on behalf of the Department put the appellant's position clear as to allegations against him. The general allegation of corruption could only arise from the aforementioned four itemised charges which are disproved. Establishment Secretary, therefore, was not well advised to take such a. Drastic action on the allegations which are even admitted to be false by the superiors of the appellant. No case was made out to justify disciplinary action against the appellant.
7. The general charge of misconduct not specifically numbered could only be based on the earlier four itemised charges. When the original charges are not proved, the charge of corruption will also go overboard. Stand of the Establishment Division that F. I. A. Had reported owning of a house by appellant costs whereof are beyond known means of the appellant, was never put to the appellant.
8. Consequently no order could be passed on a charge, not preferred.
9. In the circumstances when the charge is admitted to be false, assertion of the appellant that he was made to suffer for conscientious refusal to hand over record to F.I.A. And its retaliation by manipulated allegations, can be accepted. The charge is proved to be false. Appellant has to be re-instated.
10. He would be entitled to all the pay and emoluments that he was entitled to during the service. The order is made accordingly.
11. The comments of respondents 2 and 3 do not justify the order of com--pulsory retirement. The very basis of the charges put becomes questionable.
12. I, therefore agree that the order of compulsory retirement be vacated an the appellant be deemed to be in service throughout and entitled to the pay and emoluments during service (less the amount already drawn) by way of gratuity/pension if any.