' QALANDAR ALI KHAN (CHAIRMAN).--- Mr. Ziarat Gul, appellant, is Driver in the Forests, Southern, Circle, Peshawar. The record shows that he was attached with the Conservator of Forests, Southern Circle, Peshawar i.e, respondent No,1, for driving the official vehicle assigned to the latter. It is alleged that the official vehicle (A-1040) with which the appellant was attached as a Driver and was assigned to respondent No,1, had a narrow escape from meeting accident due to failure of brakes on 20-6-2008. It is further alleged that on 25-7-2008 all the nuts of rear left side wheel of the vehicle were removed but again the vehicle escaped accident.
2. The Authority i.e, respondent No,1 treated both the above acts/omissions as misconduct on the part of the appellant and initiated proceedings under the N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000, and appointed Mr. Shaukat Fiaz Incharge SDFO Patrol Squad as Enquiry Committee under RSO 2000 vide office order No,7 dated 26-7-2008. The Enquiry Committee proceeded with the departmental proceedings and submitted its report. In the report, the Enquiry Committee comprising the one Member namely Shaukat Fiaz concluded that the charges of misconduct and inefficiency stood proved with certainty and recommended imposition of major penalty. On the basis of the said enquiry report, respondent No,1 served the appellant with show- cause notice, dated 23-9-2008, thereby communicating to the appellant that it has been decided to impose on him a major penalty of compulsory retirement from service. The appellant submitted written reply to the show-cause notice, wherein, he refuted the allegations of misconduct and inefficiency. On consideration of the written reply of the appellant and report of the Enquiry Committee, the Authority i.e, respondent No,1 imposed two penalties, (i) Reversion to the lowest of the scale in which the appellant was drawing his pay (BPS-5) and (ii) he was also administered character roll warning to be careful in future, vide Office Order No,24 dated 24-12-2008. The appellant filed appeal/ representation against the aforesaid order of the Authority, which was not disposed of by the Appellate Authority i.e, Chief Conservator of Forests, N.-W.F.P within the stipulated period, hence the instant service appeal under section 4 of the N.-W.F.P. Service Tribunals Act, 1974.
3. In his appeal, the appellant has impugned the order dated 24-12-2008 by the respondent No,1 on the grounds of mala fide, noncompliance with the mandatory provision of section 5(3) of the N.- W.F.P. Removal from Service (Special Powers) Ordinance, 2000 and being against the principle of natural justice as, according to the appellant, respondent No,1 could not be a Judge in his own cause, because he had a personal bias against the appellant. The respondents contested the appeal by filing their written reply wherein they defended the impugned order against the appellant both on factual and legal grounds. The appellant also filed rejoinder to the parawise comments of the respondents wherein he reiterated his contentions raised in the appeal.
4. We have heard arguments of the learned counsel for the appellant and learned A.-G.P., and have perused the record with their assistance.
5. There is no denial of the fact that the appellant was a Driver with official vehicle assigned to respondent No,
1. Incidentally respondent No,1 is also Authority in this case, and has imposed the penalties on the appellant as a result of the report/findings of the Enquiry Committee, which was also appointed by him in his capacity as the Authority. As such, respondent No,1 is both the complainant and the final arbiter who imposed major penalty of reversion to the lowest of the scale in which the appellant was drawing his pay i.e, BPS-5 under the RSO 2000.
6. The appellant denied to have received the charge-sheet and memo of allegations, and the respondents failed to show on record that the charge-sheet and statement of allegations was actually received by the appellant.
6-A. The Enquiry Committee has mainly placed its reliance on the solitary statement submitted to the respondent No,1 in the shape of application by another. Driver (Haider Ali) wherein it was mentioned that six nuts of the left rear wheel of official vehicle No,A-1040 were missing, therefore, approval be accorded for replacement of the six studs which were damaged due to pressure of the wheel. Beside this statement, or, to be more specific, application of Haider Ali Driver, there is no statement available on the record in support of the report/findings of the Enquiry Committee.
Moreover, the appellant was not allowed to subject this sole witness against him to cross- examination despite the fact that he moved application for the purpose on 15-10-2008.
Furthermore, it is not clear on record as to in what capacity he moved the application when he is neither motor vehicle expert nor incharge of the transport.
8. Furthermore, the Show-cause notice dated 23-9-2008 is in fact communication of decision of the Authority to impose the major penalty of compulsory retirement from service instead of asking the appellant as, to why the major penalty may not be imposed on him on the ground of his alleged misconduct and inefficiency.
9. Above all, the Authority has imposed two penalties; one major penalty of reversion to the lowest of the scale in which the appellant was drawing his pay (BPS-5) under the RSO 2000 and the other of administering character roll warning to be careful in future, which is neither provided for in the RSO 2000 nor in the N.-W.F.P Government Servants (E&D) Rules, 1973. The respondents attributed the removal of nuts from the wheel of the vehicle to the appellant and declared the same to be a sabotage activity or in other words an attempt on the life of the respondent by the appellant. The alleged acts would certainly fall within the definition of criminal acts, but neither a criminal complaint or F.I.R. Has been lodged against the appellant nor any motive is appearing on the record prompting the appellant to resort to such an extreme act of putting the life of a senior Government officer to risk. Needless to say that there is not an iota of evidence showing the involvement of the appellant in the removal of nuts. There is neither ocular nor circumstantial evidence to that effect.
10. All the above facts would go a long way to prove that neither proper procedure was adopted for proceeding against the appellant under the law nor he was provided proper opportunity of defence, which would vitiate the entire disciplinary proceedings against him.
11. No doubt, there was objection with regard to non-signing of the appeal by the appellant, but that technicality should not preclude the Tribunal from granting the relief to the appellant when he is otherwise held to be entitled to the relief prayed for on the grounds of lack of evidence against the appellant, material defects in the proceedings and denial of right of defence to him as well as on the ground that the Authority could not be a Judge in his own cause.
12. As a sequel to the foregoing discussion, the appeal is accepted and the impugned order dated 24-12-2008 is set aside, with no order as to costs.