' SHAH ABDUR RASHID (CHAIRMAN). - The appellant, Sardar Fateh Khan, was serving as trained Graduate Teacher, in the Federal Government Boys High School, Quetta, when on 22nd October, 1979, he was served with a charge-sheet by the Director, Army Education. The charge against the appellant was that he was guilty of misconduct, and the statement of allegations shows that he had been absent from duty without leave with effect from 9th March, 1979, and had failed to comply with the instructions that he should appear before the Medical Superintendent for medical check-up. The appellant submitted his explanation denying the charge, and explaining the reasons for his absence. The appellant was then served with a show-cause notice dated 20th November, 1979, requiring the appellant to explain why he should not be dismissed from service. This letter was not accepted by the appellant and came back to the sender as unserved. As a consequence on 15th December, 1979, the services of the appellant were terminated for misconduct.
2. Unfortunately, in this case the procedure provided for under, the Government Servants (Efficiency and Discipline) Rules, 1973 has not been followed. There are two procedures for taking disciplinary action. It is in the discretion of the Authorised Officer to adopt either procedure, but it has been held time and again by this Tribunal that this discretion should be judicious and not arbitrary. In one case, the Authorised Officer is to serve the show cause notice straightaway if there is unrebuttable material with him, and in that case the procedure laid down under rule 5 (1)(ibid), had to be adopted. However, if the Authorised Officer considers that more evidence might be required to prove the guilt of the accused officer or otherwise then he is to serve a charge sheet and the statement of allegations and also appoint an Inquiry Officer, or Inquiry Committee, to whom the explanation is to be submitted. After receiving the explanation, the Inquiry Officer has to conduct the inquiry and give the accused officer opportunity of producing evidence in his defence. He is then to submit the report to Authorised Officer along with the record. At that stage, if the Authorised Officer considers that the accused officer does not deserve a major penalty, then he can award a minor penalty himself, and in that case, the natural justice requires that the Authorised Officer may again hear the accused Officer. If, however, he thinks that the accused officer deserves a major penalty, then he should forward the entire record to the Authority alongwith his report and recommendations. The Authority has then to give further opportunity to the accused officer as laid down in the case of Syed Mir Mohammad v. Government of N.-W. F. P. (1). It is then that a final order exonerating or penalising an accused officer can be passed. In this case, this procedure has not been adopted. We, therefore, accept this appeal, and set aside the order of termination of service of the appellant. He is re-instated into service with immediate effect. It is for the authority to decide whether after re-instatement, the appellant should again be proceeded against on the same charge or not, and in case of dropping the charges to regularize the period the appellant was out of service or under suspension.
3. Parties shall bear their own costs. {{FOOT NOTE}}
(1) PLD 1981 SC 176 {{FOOT NOTE}}