Sayed Mehar Hussain Shah, Member.--The appellant through this appeal has challenged the impugned order of his Compulsory Retirement from service dated 15.09.2003. Against the said order, he preferred a departmental appeal on 27.09.2003, which having not been responded; hence, the present appeal has been filed before the Tribunal on 09.09.2004, which appears to be barred by time.
Alongwith the appeal, an application under Section-5 of the Limitation Act for condonation of delay in filing the appeal, has also been filed supported by an affidavit.
2. Learned counsel for the appellant, has drawn our attention towards the show-cause notice dated 13.05.2003, wherein inquiry has been dispensed with. He argued that since serious allegations have been leveled against the appellant in the said show-cause notice, holding of regular departmental inquiry was imperative, which has not been done and penalty of compulsory retirement has been imposed upon the appellant, which is illegal. In support of his contentions, he relied on 2004 SCMR 366, 2004 SCMR 1662 and PLJ 2006 SC 189.
3. Regarding condonation of delay, learned counsel for the appellant argued that appeal is barred by eight months and 14 days, application for condonation of delay has been filed by the appellant, covering the medical certificates issued by the private medical practitioner, as such, facts narrated in the said application/affidavit shall be presumed to be true. He relied on PLJ 1996 TRC (Service)
259, 2004 PLC (CS) 677, 1986 CLC 1408 and KLR 2007 L & SC 180.
4. Learned counsel for the respondents forcefully defended the action taken against the appellant and argued that the competent authority has right to dispense with the inquiry as the allegations contained in the show-cause notice were quite substantial and proved; hence, there was no need to conduct inquiry against the appellant. The reply of the appellant to the said show-cause notice was duly considered by the authority. Consequently, after having considered all aspects of the matter, appellant was awarded major penalty of compulsory retirement from service. He argued that the appeal is hopelessly time barred.
5. We have heard the arguments of both sides and have also carefully perused the material placed on record. We, in the given facts and circumstances of the case, condone the delay in filing the appeal, as no inquiry having been conducted against the appellant, despite the fact that serious allegations have been leveled against him in the show-cause notice, which could not have been proved without holding proper inquiry, as has rightly been pointed out by the learned counsel for the appellant. It is by now a well settled principle of law that in case of awarding major penalty, a proper inquiry is to be conducted in accordance with law wherein an accused officer is to be provided an opportunity of defence and personal hearing after issuing show-cause notice, obtaining his reply and if the charges are proved in the regular inquiry, thereafter, he is to be penalized. Since serious allegations have been leveled in the show-cause notice, regular inquiry was required to have been conducted which has not been done, rendering the impugned order, as illegal. We rely on 2004 PLC (CS) 312, PLD 2003 Supreme Court 187, 2000 SCMR 1030, 2004 PLC (CS)
856 and 1993 SCMR 603 on the point of holding inquiry in case of major penalty.
6. The upshot of the above discussion is that the impugned order dated 15.09.2003 imposing major penalty of compulsory retirement from service upon the appellant is set-aside. The appellant is ordered to be reinstated in service. However, the respondent-department is directed to initiate and hold de novo departmental proceedings against the appellant by providing full chance to the appellant to cross examine the witnesses and to defend himself properly. Such proceedings shall be initiated and completed within a period of 120 days from the date of receipt of a copy of this judgment. The question of back benefits shall depend upon the outcome of such fresh proceedings. Appellant is directed to fully participate in the inquiry proceedings.
7. Parties be informed accordingly.