' ABDUL GHANI SHAIKH (CHAIRMAN).--- The appellant is aggrieved by the impugned order dated 8- 9-2004 passed under Removal from Service (Special Powers) Ordinance, 2000, whereby penalty of reversion to lower grade for a period of one year was imposed upon him, against which departmental appeal was filed on 28-9-2004 which has been rejected on 7-12-2004. Hence the appellant filed the instant appeal before the Tribunal on 3-1-2005.
2. Briefly stated the facts of the case, as stated in the memo of appeal are, that while the appellant had been serving as Assistant Foreman. C&W Shops. Hyderabad, he was served with a show-cause notice dated 21-1-2002 with statement of charges, alleging therein that the appellant had misappropriated the railway material (2000 KGs MS Round of Sizes) costing Rs,18,000 while posted in vacuum slop of C&W Shops, Hyderabad during 1998-1999. The appellant submitted his reply to the said show cause notice on 18-2-2002 and rebutted the charges. It is stated in the appeal that while the said show-cause notice was in the field, the respondent No,1 issued another show-cause notice dated 19-9-2002 with statement of charges by changing the contents of the charges that the appellant had signed bogus MIT of MS Round released of sizes (2225 Kgs) and did not report to higher authorities for non-receipt of subject material deliberately which was subsequently misappropriated by Mr. Zahid Hussain, AEFO, C&W Shop, Hyderabad. The said show-cause notice was also replied by the appellant vide reply dated 28-9-2002, again rebutted the charges and contended that as per record the said material had no concern with him simply preparing the requisition was not enough to hold him guilty, whereas, he had no role at all for its embezzlement. It appears that said reply of the appellant did not find favour with the competent authority and the impugned penalty has been imposed upon the appellant vide impugned order dated 8-9-2004; hence, this appeal.
3. Learned counsel for the appellant contended that in both the show-cause notices regular inquiry had been dispensed with without. Indicating any plausible reasons. He relied on 2008 PLC (C.S.)
593. He further contended that the appellant denied the allegations, levelled in the said show- cause notice and, therefore, regular departmental inquiry was imperative and placed reliance on 2004 PLC (C.S.) 438. He also contended that procedure for dealing with the cases under the Removal from Service (Special Powers) Ordinance, 2000 was not properly followed; hence, action against the appellant is not maintainable. He also further contended that major penalty of any kind under section 3 of the Removal from Service (Special Powers) Ordinance, 2000 cannot be imposed till proper regular inquiry is conducted against the accused official, which is lacking in this case; hence, penalty so imposed is not sustainable. He relied on 2007 SCMR 152 and 2009 SCMR 339. He argued that evidence which was recorded during the Court of preliminary inquiry report in the absence of appellant was used against him, which is not permissible in law and the penalty so awarded is liable to be set-aside and placed reliance on 2008 Appeal Cases 345. As a last leg of his arguments, he contended that the penalty of reversion has been awarded without providing chance of personal hearing to the appellant; hence, appellant has been condemned unheard and relied on 2005 TD (Service) 423.
4. Departmental representative on the other hand stated that the appeal is time-barred and is liable to be dismissed.
5. We have considered the above arguments of both sides and perused the record carefully. We are of the view that major penalty cannot be imposed upon an accused official, without holding regular departmental inquiry, when charges are denied. In the instant case, charges were denied by the appellant hence regular departmental inquiry was imperative, which was not conducted and major penalty has been imposed upon the appellant. We also find that two separate show cause notices were issued with slight change of allegations. Either inquiry upon first show-cause notice was to be conducted or it was to be withdrawn or the second show cause notice was to be withdrawn. In either way, holding of inquiry was necessary, which was dispensed, with in both the show-cause notices. Evidence of the preliminary inquiry report has been relied upon while imposing penalty upon the appellant. Report of preliminary inquiry cannot take place of regular inquiry. We also find that the appeal is within time from the date the appellate rejection order was received by the appellant in view of ruling reported in NLR 2002 (Service) 170 and 2002 PLC. (C.S.)
243..
6. In view of the foregoing discussion, we have no hesitation in setting aside the impugned order dated 8-9-2004 as well as appellate rejection order dated 7-12-2004 and direct that the appellant be restored to his original position and remand the case back to the department for -conducting the de-novo disciplinary proceedings by adopting the prescribed procedure under the law. The disciplinary proceedings shall be initiated and completed preferably within a period of 120 days from the receipt of this judgment by the department. The question of consequential benefits will depend on the outcome of fresh proceedings, if held. No order as to costs.