Justice (R) Abdul Ghani Shaikh, Chairman. Appellant has filed the instant appeal against the appellate rejection order dated 23.06.2009 allegedly received by him on 28.06.2009, whereby the departmental appeal/representation dated 28.08.2009, preferred by him against order of recovery of. Rs,108100/ in instalments @ 1500 per month dated 13.8.2008, has been rejected.
2. We have heard learned counsel for the parties as well as departmental representative on behalf of the respondents.
3. At the very out-set, learned counsel for the appellant contended that punishment for recovery of losses was imposed upon the appellant without holding proper/regular departmental inquiry, whereas, in reply to show-cause notice, the appellant had denied the charges. He argued that major or minor punishment in such situation cannot be imposed till regular departmental inquiry is conducted against the accused official. As such, learned counsel contended, that the impugned order dated 13.08.2008 as well as appellate rejection order dated 23.06.2009 are arbitrary, ,vague and capricious as no proper/ regular departmental inquiry was conducted in the matter. He relied on 2009 PSC 333, He further contended that punishment of recovery of loss was imposed upon the appellant on the basis of some facts finding inquiry/preliminary inquiry/domestic inquiry in which the appellant was neither called for nor associated and, therefore, such an inquiry cannot be used/termed as regular inquiry against the appellant. He contended that fact finding inquiry cannot be equated to that of regular departmental inquiry and relied on 2007 PSC 1854.
4. The departmental representative, appearing on behalf of the respondent has mainly relied on the comments and stated that same be treated as arguments. He also stated that the appeal is liable to be dismissed as the appellant was responsible for the loss as it was caused on account of his negligence.
5. We have considered the above arguments advanced on behalf of both parties and carefully perused the record including the written comments/objections filed on behalf of the respondents.
Perusal of the record shows that an order of inquiry dated 21.05.2008 was issued to the appellant under the Removal from Service (Special Powers) Ordinance, 2000, Under the said Ordinance, the statement of allegations/charges was required to be issued by the inquiry officer/inquiry committee, as the case may be. The order of inquiry, show-cause notice as well as the impugned order all have been signed/issued by Divisional Superintendent, Postal Services, in contravention of the provisions of Law, prevalent at the relevant time. No regular departmental inquiry appears to have been conducted against the appellant and thus he has A been deprived of his right of defence, as enshrined in the Maxim "audi alteram partete. Perusal of the inquiry report further reveals that the inquiry has been conducted against the appellant in "question and answer arm which is not permissible in view of the ruling reported in 2007 PSC 1854. The allegations, so leveled against the appellant, mentioned in the show-cause notice have since been denied by the appellant, a regular inquiry should have been conducted to. unveil the reality. We rely on 2004 PLC
(CS) 1275 (Supreme Court). The appellant has fully explained his position in the said reply to the show-cause notice which should have been considered and a proper and regular inquiry should have been conducted which has not been done in the present case. We are of the firm opinion that appellant has not been provided full opportunity to defend himself, which was to be provided, had a regular inquiry been conducted. He has not been dealt with in accordance with law. No opportunity of personal hearing has been provided to the appellant, despite having been requested in the reply to the show-cause notice. The appellant has thus been condemned unheard and principles of natural justice have been violated.
6. The upshot of the above discussion is that we while setting aside the impugned appellate rejection order dated 23.06.2009 as well as the original order dated 13.8.2009, direct the respondent-department 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. Till Finalization of such fresh proceedings, no recovery be made. No order as to costs.
7. Parties be informed accordingly.