' MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant then posted as Telephone Operator (Overseas) Trunk Exchange, Karachi, was charge sheeted on 4th November, 1976 for 'misconduct' and 'gross negligence towards duty', The charge-sheet is reproduced as under :- CHARGE-SHEET "It was reported by the A.E.P. (Overseas), Karachi that YOU, Mr. Masood Ahmed Shah, Telephone Operator, Overseas Exchange, Karachi, while performing 1900-0100 hours duty on 27th October, 1976 connected a free outward call at 20-30 hours from Karachi No, 71368 to Copenhagon when manning H/Kong-Bern cuts. By preparing an inward ticket for the same. That call started at 20-30 hours and finished at 20-44 hours as shown by you on inward ticket. The A. E. On duty personally checked you on the spot and during interrogation you accepted that it was a free call (outward).
After that you booked an outward call under Ticket No, 0-13 from the same Karachi Number 71368 to Copenhagon and then you charged it for 40 minutes. You showed the starting time as 20-30 hours and finishing time as 2110 hours.
' And Whereas, I am of the view that the allegation would call for a major penalty of removal from service as defined under rule 4(b) of the Government Servants (E & D) Rules, 1973.
' Now, therefore, as contemplated under rule 5(3) of the aforesaid rules, I, S. Wajid Hussain, Divisional Engineer, Phones (Overseas) Division, Karachi, charge Mr. Masood Ahmed Shah, T.O.
Overseas Exchange, Karachi, with :-
1. Misconduct.
2. Gross negligence towards duty.
' And Hereby direct Mr. Masood Ahmed Shah, T. O. Overseas Exchange, Karachi, further under rule 5(3)(ii) of the said Rules to put in written defence within seven days of the date of receipt of this charge-sheet as to why the proposed action should not be taken against you and also state at the same time whether you desire to be heard in person or to bring any witness.
' In Case your written reply is not received within the time specified it shall be presumed that you have no defence to offer and the case may be decided ex parte.
Sd/- (S. WARD HUSSAIN), Divisional Engineer, Phones, Overseas Division, Karachi-5."
2. The appellant submitted his reply to the above charge-sheet on 11th November, 1976, wherein he refuted the charge and alleged that the Assistant Engineer on duty under coercion got prepared from him an outward call ticket. He thus pleading his innocence, requested for a proper enquiry to ascertain the true facts. The reply, however, was not considered of any worth and the authority i. e.
The General Manager, Telecommunication Region, Karachi, without taking any further proceeding vide his order dated the 18th November, 1976, removed the appellant from service. His appeal to the Director-General, T & T, Islamabad, was also dismissed. Aggrieved thereby he preferred the present appeal before this Tribunal. The case was finally heard by us on 24th August, 1982. The learned counsel for the appellant assailed the impugned order mainly on the following grounds :-
(i) That the impugned order was passed in disregard of the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973.
' That the summary proceedings had been taken against the appellant arbitrarily and with the predetermined mind to punish him as otherwise there was no justification for holding depart mental proceedings under rule 5 (3) of the Government Servants (E & D) Rules.
(iii) That it was only proper if enquiry should have been ordered under rule 6 of the Rules in the interest of justice.
(iv) That mandatory provision with regard to grant of reasonable opportunity of showing cause had also not been followed."
3. With regard to the exercise of discretion for not holding formal enquiry under rule 6, it was contended by the learned counsel for the respondent-Department that the discretion is absolute one and can be exercised at the option of the authorised officer. We, however, find this submission untenable. Although it has not been specifically provided in the Efficiency and Discipline Rules, 1973, that the authorised officer is bound to give reasons for exercise of the discretion for proceedings under rule 5, it is a well-settled legal position that whenever any discretion is given to a public authority, it has to be exercised not arbitrarily but judiciously and for good reasons to be recorded.
We are further of the view that for the purpose of determining whether the discretion not to hold enquiry through an Enquiry Officer was properly exercised, nature of allegations against the public servant and the available evidence in the case has to be considered. In the instant case the appellant was alleged to have connected a free outward call from Karachi No, 71368 to Copenhagen by preparing an inward ticket for the same. It was further alleged that he admitted his guilt before the Assistant Engineer concerned and that thereafter he prepared a ticket for booking an outward call from Karachi No, 71368 to Copenhagen. The appellant denying the charges made counter-allegation of coercion and threats by the Assistant Engineer on duty for preparation of the said outwards call ticket. These allegations and counter-allegations could not be considered such as could be decided by reference to any record only, rather, the ends of justice would have served only if a proper enquiry as required by rule 6 ibid had been conducted through an Enquiry Officer. The factum of issuing charge-sheet and not "an order in writing" required by rule 5(3) also called for an enquiry in the matter by an Enquiry Officer appointed for the purpose. In the circumstances, the contention of the department that as guilt of the appellant was proved from documentary evidence, no formal enquiry as contemplated by rule 6, was considered necessary, is not acceptable to us.
4. The fact that it took only six days to complete the departmental proceedings also goes in favour of the appellant who has alleged that the proceedings were taken against him with a pre- determined mind. The charge-sheet was issued to the appellant on 4th November, 1976 and the reply thereto was submitted to the authorised officer on 11th November, 1976. It is presumed that the authorised officer must have consumed some time in making formal enquiry into the charge and examining record etc. Before formulating his recommendations to the authority. The impugned order in the case was passed by the authority on the 18th November, 1976. This quite unusual hasty manner, in which the proceedings were concluded, has raised strong doubts in our mind as to the proper investigation and applicability of mind by the Authorised Officer and the Authority.
5. For these reasons we are of the view that a summary procedure was erroneously and unjustifiably adopted in this case and no proper enquiry as required by the Rules, in the circumstances of the case, was held before passing the impugned order. The impugned order was, therefore, nothing but an unlawfuband incompetent order which is accordingly set aside and it is hereby directed that the appeal be re-instated into service with all consequential service benefits.
6. No order as to costs, ' A. O. RAZIUR RAHMAN (MEMBER).-Agreeing with the findings and the proposed order contained in the judgment prepared by my learned colleague, I am tempted to make the observation that it is entirely on account of the most high-handed and zabardasti decision of the concerned authorities in the disciplinary case against the Appellant that he has been kept out of office for almost six years without reasonable justification and that, as a consequence thereof, he has to be re-instated with full benefits of arrears of pay and other emoluments without having had to work for a single day all this time. The carelessness and disregard of rules and the normal requirements of justice on the part of the concerned officers has thus caused considerable financial loss to the public exchequer, for which it is difficult to find any justification whatsoever. We can only hope that the relevant officers, not only of this department but also of other departments of Government, will refrain from acting negligently and rashly in disciplinary matters, not only for the sake of justice and fairplay toward their subordinates but also in the interest of the finances of the Government.
2. While there can possibly be two opinions on the point whether it is essential for an officer dispensing with an enquiry under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, to record his reasons for doing so, there can be no two opinions that an enquiry cannot be dispensed with without adequate and convincing reasons. I the instant case, the facts and circumstances were such as called for thorough and detailed enquiry, particularly in view of the very clear stand of the accused officer contained in his reply, dated 11th November, 1976, to the show-cause notice (show-cause notice designated as "charge sheet") and his request therein for a proper enquiry into the case. The summary disposal of the case, therefore, was completely uncalled for and cannot be sustained on any ground whatsoever.
3. With the above observations, I endorse the decision contained in paragraph 5 of my learned colleague's judgment.