S. ABDUL JABBAR KHAN (CHAIRMAN).-Rana Muhammad Rafiq, Inspector- Food (Retd.), has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against certain recoveries, which had been ordered against him. He has impleaded Deputy, Director, Food, Sargodha and Tehsildar, Lahore with powers of Assistant Collector, Second Class, Lahore, as respondents.
2. Brief facts of the case are that while posted at Langar Makhdoom District Jhang, he was served with a show-cause notice as to why he should not be made responsible alongwith Mr. Tariq Shaheen, to pay the damages so caused due to their negligence, to the wheat stock, which was being handled by them. This notice was issued by the Deputy Director Food on 29-11-1976. After a number of adjournments which were granted to the appellant, due to his illness, he ultimately appeared before the Deputy Director Food and the impugned order was passed against him, by which he was made liable to pay Rs. 9,424.60. Similarly when he was working, he received from P. R.
Centre Lalian, gunny bags, worth Rs. 24,000 but did not make entry in the stock register. For this lapse, a regular case was registered with the Police for investigation vide F. I. R. No. 58/56, dated 20- 4-1978. Similarly there was another allegation against him that he advanced Rs. 1,287 to one Muhammad Hussain Patwari for the purchase of wheat vide Bill No. 43/4241, dated 30-7-1974, who actually did not purchase the wheat. It is also alleged that he failed to return 57 empty gunny bags worth Rs. 570 at the time when be handed over the charge of the post. He was also required to pay a sum of Rs. 133.98 for loading and unloading and segregation charges for damages of wheat despatched by him. It was however, alleged that when the appellant visited Jhelum Centre, he found shortage of wheat, which had occurred en route valuing Rs. 19,092. Ultimately a demand of Rs. 52,905.13 in all has been made against the appellant and warrants for recovery of, the same as a land revenue, were issued.
3. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully-- with their assistance. It has been submitted on behalf of the learned counsel for the appellant that the first order of recovery of Rs. 18,191 dated 9- 3-1978, cannot be sustained as the competent authority at that time was Director Food and not the Deputy Director Food as per Delegation of Powers Rules, 1958. According to the learned counsel for the appellant, this order being without jurisdiction, would be void order. With regard to the other allegations and demands so levied against. The appellant, learned counsel for the appellant has submitted that F.I.R. Was registered against the appellant but besides this action, no show-cause notice or any proceedings under the E. & D. Rules, were taken against him. Thus, all what has been done has been done ex parte without affording any chance to the appellant to establish his innocence or to explain the correct position. According to this learned counsel, once the case has been registered with the Police, it is for the Investigating Agency to find out whether the appellant had committed any embezzlement, misappropria--tion or was guilty of any criminal offence, and if it was found, it was for that Department to institute a criminal case against him. It has been further submitted that the appellant has since been retired and was absolutely ignorant of what had happened behind his back and particularly at this juncture he is suffering from a fatal disease of Trigennial Neurology is absolutely not in a position to throw light on such allegations so made against him in his absence.
4. We have given our anxious thoughts to the argument so advanced by the learned counsel for the appellant and find that the first order which is the only order, which can be considered on the face of it, legally suffers from fatal defect as the same is passed by the authority, which was not competent to do so. This position could not be controverted by the learned District Attorney as this is a fact on the record. In view of the above, we have no hesitation to set aside the above order, as being passed without jurisdiction.
5. With regard to other amounts of recoveries we are at a loss to under--stand, why the Department has failed to proceed against the appellant as down under the E & D Rules, which was a duty so enjoined upon them. Anything which has been done, in ones absence particularly when he is retired, would be against fundamental principle of justice (audi alteram partem) as no man can be condemned without being heard in person is a principle of justice, enshrinted in Holy Qur'an itself. We rely on the ruling of Mr. Justice Fakhruddin Ibrahim in case reported as PLD 197 Kar. 155.
6. In view of the above we accept the appeal, set aside the re--coveries so levied against the appellant during the course of his absence, without affording any opportunity to explain his conduct, as provided by the law. There will be no order as to costs.