MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant, Mr. Khadim Ali Tahir, was dismissed from service vide order dated 26-8-1978. He has preferred the present appeal against the impugned order.
2. At the time of passing the impugned order the appellant was posted as Assistant Foreman, Filling, Pakistan Ordnance Factory, Walt Cantt. It was alleged that on 12-I-1978 the N.C. Powder weighing about 5 K.G. Was recovered from the house of the appellant. A case was accordingly registered against the appellant and one Sultan Khan. Peon at Police Station, Wah Cantt., under section 379, P.P.C. And under section 4/5 of the Explosive Substances Act. The appellant was arrested by Police for investigation and was tried for the charge by the Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), who, vide order dated 7-10-1980, has acquitted him. The Judge has expressed doubt about the recovery of N.C. Powder from exclusive possession of the accused appellant.
3. On 10-6-1978 an 'order' was issued to the appellant by the Superintendent, Filling, P.O.F., Wah Cantt., to show cause as to why penalty should not be imposed on him for pilferage of N.C. Powder.
This order was sent to the appellant in District Jail, Rawalpindi, where he was confined as under- trial prisoner. On receipt of the said order, the appellant requested the Chairman, P.O.F., Wah Cantt., to provide him statement of allegation, the enquiry proceedings, copy of the enquiry report and other documents connected with the case to prepare his defence. No action was taken on the request of the appellant, instead vide order dated 26-8-1978, he was dismissed from service for misconduct. His appeal to the Chairman, P.O.F., was also rejected.
4. We have heard both the parties and also examined the record produced by the Department.
Admittedly the departmental proceedings were taken against the appellant when he was confined in jail. At no stage he was associated with those proceedings. He was not even provided with necessary documents to prepare his defence. The nature of allegations contained in the order dated 12-6-1978 which the State Counsel wanted us to take as order in writing in terms of rule 5 (3) of the Government Servants (Efficiency and Discipline) Rules, 1973, could not be considered such as could be decided summarily, rather, the ends of justice would have served only if an enquiry had been conducted in presence of the appellant. We also do not find any force in the conten--tion of the counsel for the respondent-Department that the appellant was given sufficient opportunity to defend himself by issuing order dated 12-6-1978. Quite obviously, the requirement of reasonable opportunity of showing cause against the proposed action in the instant case would only be satisfied if substance of evidence in support of the charges, and specific punishment which would follow if the charges are established, are communicated to the appellant and he was given reasonable time and opportunity to explain and defend his case.
5. It is a well-settled legal position that whenever any discretion is vested by a statute in the public authority, such discretion is not to be: exercised arbitrarily but judiciously and for good reasons to be recorded. In this view of the matter and after a careful consideration of all the aspects of the case, we are of the opinion that exercise of the discretion not to hold an enquiry by an enquiry officer and to adopt summary procedure under rule 5 (3) was improper and wrong and has seriously prejudiced the appellant in his defence. Indeed the circumstances of the case and the 'nature of the allegations lead us to the conclusion that it was only proper if an enquiry should have been conducted in the instant case through an Enquiry Officer under rule 6 ibid. Be that as it may, even the reasonable opportunity was not given to the appellant as provided for in clause (b) of rule 5 (3) of showing cause against the proposed action. It is also noticeable that the Department in an indecent hurry started the departmental proceedings against the appellant without even waiting for the result of the prosecution case then pending before the Special Judge for the same charge. In the circumstances, we have no hesitation in holding the impugned order as unlawful and incompetent.
6. For the aforesaid reasons coupled with the order of the Special Judge acquitting the appellant of the charge we hereby set aside the order of dismissal of the appellant from service and direct that he should be re-instated into service with all consequential benefits.
7. No order as to costs.