' UMAR ATA BANDIAL, J.---In September 1999, the appellant was serving as SDO Gulberg (O&M)
WASA. Certain vent shafts were damaged by the contractor during construction of service roads and had to be removed. This was done on the instructions of the appellant by shifting six vent shafts to the T Block tube well. The shifting was done by officers subordinate to the appellant in the official Suzuki pickup provided to the appellant. Stocktaking of the said scrap material was not catered in the old stock and was misappropriated. A fact-finding enquiry in the incident was conducted in which statements of three accused officers namely the appellant, a Sub-Engineer and Assistant Supervisor, concerned subordinate employees of WASA were recorded in brief. Since the fact-finding enquiry did not press charges against any accused persons, therefore, no cross- examination was conducted by any of them. The enquiry report observed that the appellant ought to have been careful in the final disposal of scrap material in accordance with WASA rules and regulations. It was recommended that the proportionate value of the misappropriated material be recovered from the three accused officers. The appellant was served with a notice alleging inefficiency and demanding a reply to be filed. The two accused officers were given minor penalties. By order dated 15.03.2000, major penalty of reduction in pay to one lower stage in time scale was imposed upon the appellant along with order for recovery of proportionate loss caused to WASA due to misappropriation of vent shafts. The appeal preferred by appellant before the departmental authority was turned down and after service of notice dated 26.06.2000 for enhancement of punishment, the appellant was dismissed from service vide order dated 13.07.2000.
2. Learned counsel for the appellant has highlighted that the law laid down by this Court favours the holding of regular enquiry in a case where major penalty is likely to be imposed on an accused officer. In the present case, it is evident from the record that in the fact-finding enquiry, the appellant was not provided any opportunity to cross-examine the witnesses in the enquiry including the two co-accused persons.
3. Learned counsel for the respondents submits that appellant had an opportunity under Rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 to object to the dispensation of regular enquiry mentioned in the show cause notice dated 22.12.1999. He did not do so and therefore, no prejudice has resulted to the appellant. He further submits that appellant has left the country and does not seem to be interested for employment within the department.
4. We have heard learned counsel for the parties at length and have perused the available record with their assistance.
5. The fact-finding enquiry does not accuse the appellant personally for committing misappropriation. The allegation against all three accused is of inefficiency and misconduct for failing to abide WASA Rules on storage of scrap stock. A heavy penalty has been imposed on the appellant without an opportunity to demonstrate that the responsibility for the alleged inefficiency was shared and he could not be singled out. The enhancement of penalty through notice dated 26.06.2000 attributes malice and concealment of pilferage to the appellant. These are altogether new charges regarding which a regular inquiry was necessary and could not be dispensed. The failure by the appellant to represent against the dispensation of enquiry ordered in case of joint liability cannot bestow legality/validity upon an administrative action that is deficient in meeting the legal standards of fairness and propriety in disciplinary proceedings. In the circumstances, the appellant was apparently punished for misappropriating property of WASA but without charging him with the same or confronting him with the adverse material sustaining the allegation. To our minds, it would be lawful, appropriate and fair that a regular enquiry is conducted into the extent of responsibility of the appellant for his alleged misconduct and if culpable, the lawful penalty that may be imposed on him.
6. On the contention of learned counsel for respondents that enquiry in the circumstances of the case would be futile because the appellant is not available in the country, suffice it to observe, the respondents shall make efforts to serve the appellant at the given address. If he attends the proceedings, then respondents shall proceed with the regular enquiry, otherwise, the law shall take its course.
7. For what has been discussed above, this appeal is allowed. The impugned judgment/order(s) of the lower fora and also the major penalty of dismissal of service against the appellant are set aside. The case is remanded back to the department for holding regular enquiry against the appellant after giving him full opportunity of representation, in accordance with law. No order for payment of back benefits is made as the appellant is admittedly working abroad. In any event, his entitlement will be subjected to the outcome of the disciplinary proceedings held against him.