' FAISAL ZAMAN KHAN, J.--- Through this petition, orders dated 10.1.2004 and 26.2.2004 passed under the Removal from Service (Special Powers) Ordinance, 2000 (RSO) imposing and affirming penalty of removal from service upon the petitioner have been assailed.
2. The case of the petitioner is that he was appointed as Khakrob (sweeper) in January 1998 and had been performing his duties diligently when on 06.11.2003 a show cause notice under the RSO was issued to him on the allegation of absence from duty for 66 (sixty-six) days in different intervals. A reply to the said notice was filed, however, vide order dated 10.1.2004 respondent No,1 imposed major penalty of removal from service. Feeling aggrieved, he preferred an appeal before respondent No,2, which was also dismissed vide order dated 26.2.2004. Thereupon, petitioner filed an appeal before Federal Service Tribunal on 22.3.2004, which was dismissed on 08.3.2011 on the ground that petitioner was not a civil servant, therefore, in view of judgment of Hon'ble Supreme Court of Pakistan reported as Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi [2010 SCMR 1484], he cannot approach the Service Tribunal, therefore, this petition.
3. Learned counsel for the petitioner submits that without holding regular inquiry, major penalty for removal from service could not have been imposed on the petitioner, which even otherwise is too harsh. He further submits that petitioner has been applying for leave but somehow his applications have not been considered and he was removed from service.
4. Learned Standing Counsel appearing on behalf of the respondents submits that the petitioner confessed before the departmental authorities that he remained absent and asked for pardon but he being a habitual absentee, therefore, did not deserve any leniency, because of which The order of removal has been passed.
5. I have heard the learned counsel for the parties and have gone through the record.
6. Although the competent authority has passed a comprehensive order discussing all the pros and cons of the case, however, upon perusal of the order passed by the appellate authority dated 26.2.2004, it can be easily gauged that instead of giving an independent finding, the appellate authority without applying its independent mind has merely affirmed the order passed by the competent authority, which in itself does not fulfil the requirements of a speaking order. A speaking order especially by an appellate authority should have the following ingredients:
(a) point in issue;
(b) stance taken by the parties;
(c) finding rendered by the forum below;
(d) grounds of assailing an order;
(e) independent finding based upon reasons by the appellate authority; and
(f) the final result of the appeal.
' Keeping the above parameters in view the order of the appellate authority is perused. For convenience, operative part of the same is reproduced below: I have given due consideration to the facts of the case and to the record produced before me. I have also heard the said Faqir Masih at length. It is proved from the documentary evidence and admitted by the said appellant that he did habitually proceed on leave without proper authorization and due sanction of his leave. (Emphasis supplied).
8. In view of the foregoing I find no reason or cause to upset or modify in any manner the order passed by Joint Director (Administration) on 10.01.2004 against Faqir Masih which was passed in accordance with law. In view of the foregoing, Shaigan Shareef Malik, Director (F&A) Civil Services Academy, as appellate authority in this case, after due consideration of the material presented before me and after hearing the said appellant, dismiss the appeal of Faqir Masih".
' The above extract of the order 'would show that no independent finding has been rendered by the appellate authority and he, in a convenient manner, has decided the appeal endorsing the findings of the competent authority. This by no stretch of imagination can be considered to be a speaking order. The duty cast upon the appellate authority is to independently analyze the ease before him and once he arrives at a conclusion, independent of findings rendered by the competent authority, he has to give his own reasons for acceptance or otherwise of the appeal.
7. It is not disputed that the award of punishment is the prerogative of the competent authority and none else. Reliance can be placed on Inspector-General (Prisons), N.-W.F.P., Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others [2009 PLC (C .S.) 47] and Allied Bank Limited through attorney and others v. Syed Nasir Abbas Naqvi and others [2007 SCMR 1143].
' On the contrary, it is equally important to highlight that the penalty, which is awarded has to commensurate with the offence which has been committed by the official. Reliance can be placed on Saeed Ahmad Awan v. Registrar, Lahore High Court, Lahore [2013 PLC (CS) 928] and Secretary to Government of the Punjab, Food Department, Lahore and another v. Javed Iqbal and others [2006 SCMR 1120]. Merely because of the fact that major penalty of removal or dismissal from service has been provided in the statute book, the same has to be awarded will be a very harsh decision. The competent authority is invested with a very noble duty and has to draw a fine line between his personal impressions and the offence committed by the employee. He may have a personal grouse or grievance against the employee yet he has to confine himself to the allegations leveled in the show cause notice, charge-sheet and act in accordance with that.
8. Furthermore, it has been held by the Hon'ble Supreme Court of Pakistan in judgments reported as Deputy Inspector General Investigation, Lahore v. Asghar Ali [2012 PLC (CS) 787], Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others [2009 SCMR 339], M/s. Best Buy Computers, Lahore and another v. Director, Intelligence and Investigation (Customs and Excise), Lahore and others 2009 SCMR 19 = 2009 PTD 2019 and Tariq Mehmood v. District Police Officer, Toba Tek Singh and another [PLD 2008 SC 451] that major penalty would not be awarded to an employee without regular inquiry. This, by no stretch of imagination, would disentitle the competent authority to dispense with the inquiry, if facts of the case so require. Reliance can be placed on Deputy Inspector-General Investigation, Lahore v.
Asghar Ali [2012 PLC (CS) 787], Deputy Inspector-General Investigation, Lahore v. Asghar Ali [2011 SCMR 1389], Dr. Pakiza Raza Hyder v. Ministry of Health and others [PLD 2010 SCMR 501], Javed Iqbal Qamar v. Pakistan Telecommunication Co. Ltd. Through its Chairman, Islamabad and another [2004 PLC (CS) 436 and Executive Engineer and others v. Zahid Shari! [2005 SCMR 824]. It is equally important to note that while dispensing with the inquiry, reasons have to be given. In the case in hand, the show cause notice would show that on the basis of numerous reports, the competent authority decided to dispense with the inquiry without confronting the petitioner with the same.
9. In the case in hand, the appellate authority without considering the gravity of the offence and the quantum of penalty awarded, upheld the order of the competent authority. In this case, as the charge against the petitioner was only to the extent of absence of 66 days and if the competent authority had awarded the maximum punishment, the appellate authority was duty bound to reconsider and reappraise the same and give an independent finding, one outcome of which could be upholding the order of the competent authority. In the case in hand, the appellate authority failed to consider the following aspects, while rendering a finding: a. The gravity of charge; b. Whether or not sufficient evidence was available for dispensing with the regular inquiry; c. Whether procedure provided under the law was followed; and d. Whether the penalty commensurate with the offence which employee was charged with.
10. For what has been discussed above, I find that the order passed by the appellate authority dated 26.2.2004 is not sustainable, therefore, the same is set aside, as a sequel to which, the appeal of the petitioner shall be deemed to be pending before the appellate authority/respondent No,2 who shall decide the same strictly in accordance with law through a reasoned order, after hearing all necessary parties keeping in view the law and the observations made in the operative paragraph of this judgment.
11. In the above context, this appeal is accepted.