JRDGMENT MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant then a Driver in the Population Division; was required by the Deputy Director (Transport) of the said Division, vide letter dated the 20th March, 1980, to explain the reasons of his unauthorized absence from duty on .25-2-1980, 28-2-1980, 1-3- 1980 to 43-1980 and 13-3-1980 to 16-3-1.980 and also as to why disciplinary action' should not be taken against him for the said lapses. In reply, thereto the appellant denying the charge of unauthorized absence, submitted that he .Was not absent on the dates mentioned above.
Thereafter a show-cause notice dated the 2nd August, 1980, was served upon the appellant by the authorised officer under rule 5 (3) of the Government Servants (Efficiency and Discipline) Rules, 1973, requiring him to show---cause as to why the penalty of removal from service should not be imposed on him for misconduct on account of his unauthorized absence from duty on the above- mentioned dates and also on 30-6-1980. The appellant vide his reply dated the 9th August, 1980, again denying the charges asserted that he was not absent from duty on the above-mentioned dates: He was, however, informed vide a communication dated the 16th October, 1980, that the authority had ordered dismissal of the appellant from service under the Government Servants (Efficiency and Discipline) Rules, 1973.
2. Aggrieved thereby the appellant submitted a departmental appeal dated the 29th October, 1980, but when he did not receive any repry thereto, even after the expiry of the statutory period of ninety days, he filed the present appeal on 9-2-1981. During the course of hearing, however, it was brought to our notice that on the said appeal of the appellant the penalty of dismissal from service imposed upon him was converted into removal from service.
3. We have heard the learned counsel for the parties. It is to be seen that the nature of the charges against the appellant were such as could not be legally established unless a proper enquiry is held and he is con--fronted with the evidence against him. It has been persistently held by us in a number of cases that discretion to dispense with the enquiry proceedings and adoption of summary procedure in disciplinary cases can be exercised only judiciously and for substantive reasons. In the instant case, the adoption of summary procedure was ex facie improper and unlawful. The impugned order is, quite obviously, based on no evidence and is liable to be struck down on this score alone.
4. We would, however, like to add that the appellant himself has admitted in the memo. Of appeal that he refused to perform duties after office working hours when many a time he was asked by the respondent No. 2 to do so., In the written statement filed on behalf of the respondents an exception has been taken to this, averring that the appellant's this admission itself shows that he was indisciplined. It was added that all other Drivers were performing duties after office hours and had been claiming overtime allowance admissible under the Rules Finding our--selves in accord with the stand taken by the Department, we feel that the refusal of the appellant to perform-duties, after office hours, apparently amounts to insubordination and indiscipline, for a civil servant is liable to work even after the office hours if he is required to do so in the exigencies of the service. Be that as it may, however, the Department itself did no care to proceed against the appellant for such an insubordination and indiscipline. It is, therefore, impossible for us to uphold the impugned order on the basis of such alleged misconduct of the appellant which was not dealt with in the impugned proceedings and order passed thereon.
5. In view of the foregoing, the impugned order cannot be sustained and is accordingly set aside.
The appellant is re-instated into service but it shall be open to the relevant authorities in the respondent-depart--ment to proceed afresh against the appellant according to law. If this is done then an order about payment of emoluments for the period the appellant remained out of service, shall also be passed according to Rules by the competent authority. In case, however, the respondent-department does not wish to proceed afresh against the appellant, it is directed that the appellant should be allowed all consequential benefits including emoluments after deducting such amount, if any, which he might have earned while he remained out of service.
6. No order as to costs.