RASHID ALI MIRZA, MEMBER -- The appellant who had applied for the post of Telephone Operator, against the vacant post was appointed as Nursing Attendant against the quota of disabled persons with the respondents. He was removed from service vide order dated 28.9.2002 on the ground That he had remained absent from duty for the last 2 months i.e. 1st July, 2002 till date.
2. The authority-ci/m-authorized officer (Deputy Director). Directed initiation of disciplinary proceedings against the appellant. As a result, he was served with a show-cause notice dated 9.9.2002 under Removal from Service (Special Powers) Ordinance, 2000 requiring him to explain why he should not been punished for having remained absent from duty for the last 2 months i.e. 1st July,- 2002 till date. He contested the proceedings by denying the charge but the authorized officer repealed his defence, and acting as authority awarded him the majority penalty of removal from service.
3 The respondent has filed parawise comments and has supported the impugned order praying for dismissal of appeal.
4. Heard the arguments of the appellant and of learned Standing Counsel and also perused the written arguments,
5. The point involved was typical. When the same officer acts simultaneously as authority as well as authorized officer the relevant rule purports to impose restrictions on his power in the matter of awarding penalty.
6. The appellant has argued that the show-cause notice dated 9,9.2002 was issued by the Deputy Director as authorized officer and authority at the same time although he was not competent authority as per definition of competent authority mentioned in Section 2(a) and (aa) of the Removal from Service (Special Powers) Ordinance, 2000. According, to him, Director, N.I.C.H.
(respondent) was the competent authority under Section 6(2) of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 and under the Removal from Service (Special Powers) Ordinance, 2000, no person inferior to the appointing authority could act as competent authority; that Deputy Director, Dr. Aftab Shah being inferior in rank to the Director, N.I.C.H. Was not competent to initiate disciplinary proceedings against the appellant under Removal from Service (Special Powers)
Ordinance, .2000 and pass order of removal from service of the appellant, hence the entire disciplinary proceedings against the appellant were ab initio void, nullity in the eyes of law, without lawful authority and liable to set aside. In support of his arguments, the appellant relied on SBLR 2004 (SC) 01, PLJ 1983 Tr.C (Services) 1 and 1994 PLC (CS) 477.
7. Coming to the objection of the appellant against maintainability of the disciplinary proceedings by an incompetent authority, we have to reproduce the definition of competent authority' as mentioned in Section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000 and we reproduce it as under:- "(aa) "Competent authority" means the Chief Executive and where, in relation to any person or class of person's, 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, that officer or authority, and in relation to an employee of a Court or Tribunal functioning under the Federal Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal."
Now, in accordance with Section 5 of the Removal from Service (Special Powers) Ordinance, 2000, the competent authority has to appoint an inquiry officer, or inquiry committee, who is required to communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority. This shows that the charges have to be framed with the statement of allegations by the competent authority i.e. (Director) respondent. In the instant case against the appellant charge sheet dated 9.9.2002 was issued by the Deputy Director, Dr. Aftab Shah who was not the competent authority.
8. The appellant argued that Deputy Director could not act as competent authority because he was inferior in rank to the appointing authority prescribed for the post (BPS-IV), the appellant held at the relevant time. According to the appellant, Director, N.I.C.H. Was the appointing authority in respect of employees in BPS-IV, as such, the Deputy Director being inferior in rank to the Director, N.I.C.H. Was not competent to issue the show-cause notice and statement of allegations to the appellant. The appellant argued that the order of dismissal is illegal, void and nullity in the eyes of law for the reasons that Dr. Aftab Shah, Deputy Director was the sold person, who had acted as authorized officer/authority also had issued show-cause notice and the -dismissal order without holding regular departmental enquiry which was absolutely necessary in this case in view of the fact that no major penalty upon the appellant could be imposed without holding a departmental regular enquiry into the serious allegations of facts which had been denied by the appellant as has been. Repeatedly held by the apex Court. Reliance is placed on 2004 SCJ 455 wherein it was held-:-.
(a) Removal from service (Special Powers) Ordinance, (XVII of 2000)-- -------------------------
(b) Ibid- Ss. 3,
5. S. 5 contemplates that in case of charge of misconduct as stipulated in S. 3 a full-fledged inquiry is to be conducted. Action taken without holding full-fledged inquiry on charge of misconduct would be unjustified.
(c) Ibid- Ss. 3,
5. It is well-settled principles of law that in case of awarding major penalty, a proper inquiry is to be conducted in accordance with law wherein a full opportunity of defence is to be provided to the employee proceeded against."
9. We have carefully considered the arguments of the appellant as well as "of learned counsel for the respondent and the relevant law. As per definition of 'competent authority' already reproduced above, any officer inferior in rank to the appointing authority could not be authorized to act as competent authority under the Removal from Service (Special Powers) Ordinance, 2000. The learned counsel for the respondents had not denied the assertion of the appellant that the Deputy Director was inferior in rank to the Director, N.I.C.H., who was the appointing authority in respect of the appellant.
10. The above discussion shows that Deputy Director was not competent authority in respect of the appellant. We find, that the disciplinary proceedings against the appellant had not been initiated by a competent authority in accordance with law i.e. Removal from Service (Special Powers)
Ordinance, 2000. This was a grave discrepancy, which cut across the Very root of the disciplinary proceedings initiated against the appellant by the Deputy Director without any lawful authority.
Reliance is placed on 2003 PLC (CS) 600 and 2004 SBLR 199.
11. We are, therefore, of the considered opinion, that the case of the respondents against the appellant suffers from grave and serious discrepancies which cut at the very root of the case against the appellant. One man who was acting as authorized officer and authority at the same time was conducting the entire disciplinary proceedings against the appellant. Such a cause of action is not permitted by any law. Over and above all this, the proceedings are ab initio null and void.
12. It has been reported in a number of cases by the Hon'ble Supreme Court that no major penalty can be imposed upon an employee without holding a regular disciplinary inquiry against a delinquent employee. Reliance is placed on 1984 PLC (CS) 641, 1986 PLC (CS) 894, 1982 SCMR 770, 1997 SCMR 1552, 2004 SCJ 455.
13. Under the circumstances, the order of dismissal of the appellant cannot be sustained. The appeal is, therefore, remanded with direction to the respondent to reinstate the appellant and hold de novo disciplinary proceedings against the appellant on the same allegations/charges within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the respondent. The question of back benefits shall depend upon the result of the enquiry. No order as to costs.
14. Copies of the judgment be sent to the parties (under register cover) and to the relevant quarters under Rule 21 of the Service Tribunal (Procedural) Rules, 1974.