' RASHID ALI MIRZA, MEMBER.--- For the disposal of this appeal, brief facts of the case are that the appellant was appointed as Junior Officer (Revenue) BPS-16 in WAPDA vide letter, dated 21-12-1981 and after qualifying the departmental examination was promoted as Revenue Officer (BPS-17) in the year 1984. The appellant was allowed leave encashment for 180 days in lieu of LPR on full pay and was due for retirement from 14-8-2003 on attaining the age of superannuation. On 6-1-2003 a show-cause notice issued by the Chief Engineer/Technical Director, HESCO, Hyderabad was served upon the appellant under the Removal from Service (Special Powers) Ordinance, 2000. The statement of allegations is reproduced as under:-- ' Whereas you Mr. Ghulam Nabi Soomro, R.O. HESCO Sanghar while working as R.O. Dadu are charged with gross"misconduct; inefficiency, corruption and malpractice on account of the following charges:--
(i) Heavy loss of Revenue due to fraudulent, bogus and wrong cash posting to private consumer accounts noticed during Audit of Revenue Accounts of R.O. HESCO Dadu for the period from 7/2001 to 2002 Rs,11,958 million.
(ii) Bogus cash postings were made to private consumers through CP-139 (General Adjustment) by debiting the Government consumer account and crediting to the private consumer account.
(iii) The tampering/adding figure in the office copy of Bank scroll made by concerned Revenue Staff and by this malpractice 19 Nos. Private consumers were benefited.
' From the above, it becomes very clear that on account of your negligence and poor performance and failure to control the staff who was working under you and sustained above mentioned heavy financial loss to the Authority.
(Sd.) Abdul Rashid Khan, Chief Engineer/Technical Director HESCO Hyderabad.
2. The appellant submitted reply to the show-cause notice and denied the charges being vague, false and baseless and also requested for the supply of copies of relevant documents. The appellant was supplied copy of the report of fact-finding vide letter dated 23-1-2003, without supporting relevant documents. The appellant through application dated 3-2-2003 again requested the respondent No,3 for the supply of relevant documents enabling him to submit proper explanation of show-cause notice but the Chief Engineer/Technical Director, HESCO (WAPDA), Hyderabad vide impugned order, dated 31-1-2003 awarded major penalty of dismissal from service upon the appellant against which he preferred departmental appeal on 10-2-2003 and the same was rejected vide letter, dated 3-3-2003, hence the appellant filed the present appeal. The impugned order is reproduced hereunder:-- ' Office of the Chief Executive HESCO (WAPDA) Hyderabad No,CE/HESCO/Dir(Admn.)/A-2/C-747-54 31st January, 2003 ' Read-1. Show-cause Notice No,CE/HESCO/Dir(Admn.)A2/ SCN/C-134, dated 6-1-2003 under Removal from Service (Special Powers) Ordinance, 2000.
2. Defence reply to SCN dated 18-1-2003. OFFICE ORDER ' After due consideration of above mentioned documents I, Abdul Rashid Khan, Chief Engineer/Technical Director, HESCO, Hyderabad being competent authority under Removal from Service (Special Powers) Ordinance, 2000, have decided and hereby imposed the major penalty of "dismissal from service" upon Mr. Ghulam Nabi Soomro the then Revenue Officer, HESCO (WAPDA), Dadu now RO HESCO Sanghar, as the charges have been established against him.
' Mr. Ghulam Nabi Soomro, Revenue Officer, HESCO (WAPDA), Sanghar therefore, stands "dismissed from service" with immediate effect.
(Sd.) Abdul Rashid Khan Chief Engineer/Technical Director HESCO Hyderabad.
3. The learned counsel for the appellant stated that the appellant was appointed with the approval of General Manager (Distribution), WAPDA, Lahore, who was Competent Authority in the case of appellant but the show-cause notice and impugned order of dismissal from service was passed by an incompetent officer i,e, Chief Engineer/Technical Director as such the whole action on the part of respondents is illegal, unlawful and without jurisdiction on this score alone. He has relied on the case reported in Mirza Muhammad Sharif v. Chairman WAPDA and others 2003 PLC (C.S.) 600 and the judgment passed by this Tribunal, Islamabad. Bench in Appeal No,1043(R)/C.S. Of 2003 (Hafiz Muhammad Usman Ghani v. The Chief Executive, Hyderabad Electric Supply Company (HESCO), Hyderabad and others), wherein the action was taken against the appellants by the officers, who were not competent to award major penalty. In the judgment in Appeal No,1043(R)/CS of 2003, Notification dated 27-5-2000 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division has been referred and reproduced, whereby officers to act as Competent Authority for various classes of persons have been authorized by the Chief Executive. In Table No,3 of the judgment, the Managing Director/Chief Executive Officer of the Organization by whatever name called is Competent Authority for the persons in corporation service holding posts in BS-16- 19 and equivalent. The learned counsel further stated that as per section 2 of the Removal from Service (Special Powers) Ordinance, 2000, the competent authority should not be inferior in rank to the appointing authority. The relevant portion of section 2 is reproduced as under:-- "2. Definitions.--- In this Ordinance, unless the e is anything repugnant in the subject or context,---
(a) .
(aa) "Competent Authority" means the Chief Executive and where, in relation to any person or class of persons, the Chief Executive authorize any officer or authority, not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance..."
4. The learned counsel further submitted that the appellant remained posted at Dadu from 5-12- 1998 to 31-7-2001 and the alleged charge of wrong posting according to show-cause notice is for the period from 7-2001 to 2002 and the posting of appellant during this period is only one month i,e, the month of July, 2001 but no break up of the alleged amount for the month of July is given in the show-cause notice as such the charge is vague and unspecific and the appellant cannot be charged for the said alleged wrong postings. He further submitted that the charges were of serious nature but no departmental enquiry as required under the law was conducted. The appellant was neither issued final show-cause notice nor an opportunity of personal hearing was given and the appellant was condemned unheard.
5. Learned counsel for the respondents rebutted the arguments of the learned counsel for the appellant and stated that the Chief Engineer/ Technical Director, HESCO, Hyderabad was the competent authority in the case of appellant as he was authorized in this connection and the impugned order of dismissal from service was passed after completing all the codal formalities. He further stated that the appellant was involved in bogus and wrong cash posting to private consumer accounts and also in tampering/adding in the office copy of Bank Scroll and by this malpractice 19 Nos. Private consumers were benefited as such the appellant was rightly issued the show-cause notice. Learned counsel further stated that under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, there is no provision of holding a formal enquiry and it was also not essential to provide the documents to the appellant as such neither departmental enquiry was conducted nor documents as requested by the appellant were provided to him.
6. We have heard the arguments of the learned counsel for the parties and perused the record.
7. It is an admitted fact that the appellant was appointed with the approval of General Manager (Distribution), WAPDA, Lahore and according to section 2 of the Removal from Service (Special Powers) Ordinance, 2000, competent authority cannot be inferior in rank to the appointing authority. Admittedly disciplinary proceedings against the appellant were initiated by the Chief Engineer/Technical Director, HESCO, Hyderabad, who was not competent to initiate such proceedings as such in view of the above fact and, case-laws produced by the learned counsel for, appellant, the impugned order, dated 31-1-2003 is not maintainable. Further, serious allegations regarding bogus and wrong cash posting to private consumer accounts, tampering/adding figure in the office copy of Bank Scroll and financial loss of Rs,11,958 million to the HESCO were levelled against the appellant, who vide reply dated 18-1-2003 denied the charges but no regular departmental enquiry to thrash out the charges was conducted, which is mandatory requirement of law. Report of Fact Finding Committee before the issuance of show-cause notice and that too without participation of the appellant/civil servant could not be substituted or regarded to take place of a regular, independent and impartial enquiry as provided under the law. Neither final show-cause notice was given nor an opportunity of personal hearing was afforded to the appellant and he was awarded major penalty of dismissal from service as such the impugned order is not maintainable. Further, admittedly the appellant remained in Dadu only for the month of July, 2001 but it is not mentioned in the show-cause notice that how much amount is involved for the month of July, 2001 and the learned counsel for respondent is unable to provide us the break up of each month, which shows superficial charges were levelled against the appellant.
8. In view of above discussion, the appellant has successfully been able to prove the fact that the impugned order was passed by an authority which was not competent to do so, no departmental enquiry was conducted and the respondents have been failed to prove any loss to the HESCO during the month of July, 2001, the posting of appellant at Dadu, therefore, we set aside the impugned order dated 31-1-2003. As the learned counsel for the appellant informed that the appellant stands already retired from service on attaining the age of superannuation on 14-8-2003 as such no reinstatement order is passed. However, the appellant will be treated as on duty from the date of dismissal till 14-8-2003 and accordingly the appellant will be entitled .For payment of all consequential back benefits including gratuity and pension.
9. No order as to costs.
10. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of Service Tribunals (Procedure) Rules, 1974.