Brief facts of the case are that the appellant while serving as Head Warder of Central Jail Rawalpindi was departmentally proceeded against vide show cause notice dated 31.1.2011 under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 on the following allegations:-- a. You being Head Warder were deployed as Incharge barrack No, 8 and security ward. You failed to check the presence of weapons in barrack and also allowed unhindered movement to the accused under trial prisoners from barrack No, 08 to security ward. b. Thus you failed to perform your duty with honestly, diligence and efficiency in violation of Rules 1084 and 1095 (f) of PPR, 1978."
The competent authority/Respondent No, 1 awarded the punishment of removal from service vide order dated 07.06.2011. He preferred departmental appeal/representation to the Respondent No, 2 which is still hanging fire. After availing the statutory period he filed the instant appeal before this Tribunal under Section 19 of the Punjab Employees ,Efficiency, Discipline and Accountability Act, 2006.
2. Learned counsel for the appellant contended that the impugned orders are against the law and facts as those were passed by the respondent based on surmises and conjectures and a wrong presumption was raised against the appellant. The impugned orders are contrary to law and facts as no regular inquiry was held into the matter to sift out the truth and he was proceeded against in a perfunctory manner. Further contended that the respondent department remained unable to fix the direct responsibility upon any official but only he has been closed to victimize whereas Altaf Hussain Ansari Incharge Assistant Superintendent who was declared negligent in the probe report was not even proceeded by the department what to talk of penalty which is against the spirit of Article 25 of the Constitution of Islamic Republic of Pakistan. That the alleged recovered weapons were never delivered to the condemned prisoner by the appellant. The statements recorded during the preliminary inquiry proceedings did not support the version of the department against him.
3. On the contrary the learned Deputy District Attorney as well as Departmental Representative vehemently opposed the contentions raised by learned counsel for the appellant. They maintained that the orders were passed in accordance with law and facts of the case. Further maintained that the appeal has no merits and the same may kindly be rejected.
4. I have heard the arguments of the learned counsel for the appellant, learned Deputy District Attorney, departmental representative and have gone through the available record minutely.
Perusal of the record reveals that respondent department imposed the impugned penalty upon the appellant without establishing the charge against him. It is also settled principle of law that no one can be penalized without establishing charge/guilt. The competent authority despite mandatory requirement of law had not held regular departmental inquiry before imposing major penalty to him. The Hon'ble Supreme Court of Pakistan in various cases has held that no major penalty can be imposed without holding regular inquiry, recording evidence and also affording opportunity of defending to the civil servants. Furthermore the incharge Assistant Superintendent Jail Altaf Hussain Ansari who was declared negligent like appellant was not awarded any penalty.
The Hon'ble apex Court had repeatedly held that major penalty cannot be imposed on the basis of negligence. Therefore, the impugned order cannot sustain in the eye of law.
5. In view of the above discussion appeal of the appellant is partially accepted. The impugned order dated 07.06.2011 is modified and the penalty of removal from service is converted into reduction in pay by two stages for the period of three years. Consequently he is reinstated into service from the date of dismissal. The intervening/removal period during which he remained out of service will be treated as leave of the kind due.