' ABDUR RASHID (MEMBER).-Facts of the case are, that the appellant, while serving as a complaints clerk in the office of the S.D.O. (E) Hafizabad No, 2, was reported to have slipped away from his office on 28th May, 1981 after marking his presence at 7-00 a.m. And the S.D.O. Concerned vide his letter, dated 31st May, 1981 reported this incident to the Executive Engineer, Hafizabad Division, Hafizabad. The appellant was placed under suspension by the said XEN vide Order No,
134. Dated 1st June, 1981.
2. A show cause, dated 3rd June, 1981 was served on the appellant which is reproduced : "Subject : Show-cause notice. As reported by the S.D.O. (E), WAPDA No, 2 Hafizabad under his memo. No, 2062, dated 31st May, 1981 that you are absent from duty w,e,f, 28th May, 1981, to date, without any intimation of your immediate Boss.
(2) On 28th May, 1981 while I was going at Sukhakee, on 28th May 1981 for open kutachery, you alongwith other persons, stopped my WAPDA Jeep and threatened to kill the undersigned, in this way a case has registered with the police vide F.I.R. No, 137, dated 28th May, 1981, under sections 186, 148/49, 506/134, and you have been found guilty of misconduct.
' By virtue of above, he is required to show-cause in writing within 7 days from the receipt of this letter, as to why major penalty of dismissal of services may not be imposed upon him.
' In case of non-submission of explanation within aforesaid period from the date of receipt of this issue, your services will be liable to be dismissed without any giving the further notice.
(Sd.)
(Ghulam Nabi Alvi), Executive Engineer, Hafizabad Division, Hafizabad."
3. The appellant denied charge No, 1 by saying that he was present on duty on 28th May, 1981. That he was also present on duty on 29th May, 1981, that 30th May, 1981 was his rest day and that on 31st May, 1981 he had to go to the Sessions Court to obtain bail before arrest against the F.LR. Mentioned in charge No, 2.
4. An Enquiry Officer had, in the meantime, been appointed who submitted his report with reference to charge No, 1 viz. Absence from duty on 28th May, 1981 and held the appellant guilty of the charge.
The enquiry report is dated 20th January, 1982 and says nothing whatever about charge No, 2.
5. A final show-cause notice, dated 1st July, 1981 was served on the appellant. The said show-cause notice is reproduced : " Subject : Final show-cause notice.
' It is reported by the S. D. O. No, 2 Hafizabad, under his memo. No, 2297, dated 27th June, 1981 that a show-cause notice bearing No, 115/C, dated 3rd June, 1981 issued to you, and sent through S.D.O.
No, II Hafizabad under No, 2170-71, dated 9th June, 1981. Under Registered Acknowledge due, received back from Post Office, with the remarks that you flatly refused to receive the show-cause notice, which is against the E & D Rules.
' Now you are directed to appear before the undersigned for personal hearing on 9th July, 1981 at 8- 00 a.m. In case of noncompliance of the show cause-notice in writing, your services will be liable to be dismissed without any further notice. Matter most urgent.
(Sd.)
(Ghulam Nabi Alvi), XEN (E), Hafizabad.
6, The appellant was dismissed from service vide Office Order No, 318, dated 26th January, 1982 which is reproduced : "Office Order No, 318, dated : 26th January, 1982.
' Read : Mr. Muhammad Shabbir son of Muhammad Bashir Complaint Clerk sub-division No, II Hafizabad suspended vide Xen : (E) Hafizabad Office Order No, 134, dated 1st June, 1981.
' Read : Show-cause notice issued to the accused official vide Xen : (E) Hafizabad memo. No, 115/Confidential, dated 3rd June, 1981, which received back undelivered, from S.D.O. No, II Hafizabad Memo. No, 2297, dated 23rd June, 1981 with the remarks that as intimated by the Postman in writing that the accused official has flatly refused to receive the show-cause notice.
' Read : Final show-cause notice sent to the accused official at his home address vide XEN : (E)
H.F.D. Memo. No, C-147, dated 1st July, 1981 which was acknowledged by the official on 5th November, 1981.
' Read : Enquiry report made by the S.D.O. No, I Hafizabad under his Memo. No, 176, dated 20th January, 1982 which was received in the office of XEN : (E) H.F.D. : with detailed comments. ORDER ' Consequent upon the consideration of above-mentioned documents, and personal hearing on 25th January, 1982 and examination of the accused official, i,e, relevant record, and defence reply submitted by the accused official to the final show-cause notice which acknowledged by the official after 5 months and two days late, the undersigned finds him guilty of misconduct, levelled against him in the show-cause notice.
' Mr. Ghulam Nabi Alvi, Executive Engineer, Electricity : WAPDA Hafizabad as Competent Authority, therefore, hereby, dismiss M. Muhammad Shabbir, Complaint Clerk, from service with immediate effect. He is also debarred from service from further employments under WAPDA and its consultants.
(Sd.)
(Ghulam Nabi Alvi), Executive Engineer, WAPDA, Hafizabad."
7. From the order of dismissal, the appellant went in appeal to the Punjab Labour Court No, 7 Gujranwala. The learned Presiding Officer of the said Court set aside the order of dismissal and re- instated the appellant into service, vide his judgment, dated 27th January, 1983. Thereafter, the XEN
(E) Hafizabad, WAPDA went in appeal before the Punjab Labour Appellate Tribunal. The learned Appellate Tribunal, in the light of the learned Supreme Court judgment in the case of F.U. Malik v.
WAPDA (Civil Petition for Leave to Appeal No, 163/R of 1982), set aside the decision of the Labour Court No, 7 on grounds of jurisdiction and directed the appellant to approach the appropriate forum.
8. On 21st June, 1983 the appellant came in appeal before the Federal Service Tribunal. His appeal was admitted for regular hearing on 22nd June, 1983. A miscellaneous petition for status quo was also filed by the appellant. The Tribunal ordered status quo subject to notice to the respondents. By yet another petition received in the office of the Tribunal on 22nd August, 1983 the appellant prayed for the restoration of office from where he was relieved by respondent No, 1 (XEN. Hafizabad).
However, it was discovered by the Tribunal that the appellant had already been removed from service in the light of the Punjab Appellate Tribunal's judgment, already referred to and that this was done vide Office Order No, 106, dated 22nd June, 1983 which was before the Tribunal's order as to status quo was brought to the notice of respondent No,
1. The Tribunal accepted the contention of the respondent and rejected the plea of the appellant. However, while doing so, the, Tribunal ordered an early hearing of the appeal. This was done on 18th February, 1984 and this order disposes of the appeal.
9. We heard lengthy arguments from both sides which it is unnecessary for us to reproduce in detail. However, we do tabulate them from both sides. The learned counsel for the appellant made the following points
(a) The XEN (respondent No, 1) levelled charge No, 2 against the appellant in show-cause notice dated 3rd June, 1981. This charge was of a nature that it, directly, involved the person of the said XEN against the appellant. Thereafter, the XEN, acted as a judge in his own cause and thus vitiated the departmental proceedings as being against an accepted principle of natural justice and this proved the mala fide of the XEN. He cited note B at page 67 in the case of Muhammad Mohsin Siddiqi v. Government of West Pakistan. In this case an officer, who was, also, the complainant took disciplinary action against his subordinate. The learned Supreme Court set aside the proceedings on the grounds that the officer concerned had acted both as a prosecutor and a judge when, over and above, the cause was his own.
(b) If the appellant had behaved as alleged in charge. No, 2 of show cause, dated 3rd June, 1981 then, at least, the statements of the XEN and his Jeep driver could have been easily recorded by the Enquiry Officer but this was not done.
(c) No proper enquiry was conducted and no copy of enquiry proceedings was made available to the appellant to prepare his defence.
(d) No second show-cause notice was served.
10. The learned counsel for WAPDA, while replying to the above averments, ad seriatem, said :
(a) Charge No, 2 was not enquired into since an F.I.R. Had already been lodged with the police.
There was, therefore, no involvement of the NEN's person.
(b) In fact the XEN was fair in having the enquiry conducted by the S.D.O. Other than the one who had reported the absence of the appellant on 28th May, 1981. This reply also took care of the argument at (b) above.
(c) As to (c) and (d) above, the procedure of enquiry was combined with that of summary disposal.
11. The learned counsel for the respondents raised the plea of limitation. The learned counsel for the appellant said that an application for condonation of delay had been made.
12. We are not convinced by the arguments made by the learned counsel for the respondents. The mere fact that the appellant was alleged to have misbehaved towards the person of the XEN, recording of the F. I. R. With the Police could not have removed the prejudice of the XEN. It is but human. It was, therefore, incumbent upon the XEN that he removed him from any proceedings, whatever, against the appellant. We have, therefore, no doubt that the XEN did not act as a judge in his own cause and the proceedings against the appellant did stand vitiated. This short ground alone would have been enough for us to set aside the order of dismissal but there are other serious infirmities as well to which we, now, advert.
13. We shall not allow disciplinary proceedings to be violative of the laid down rules. If it is decided, after due application of mind, to) adopt the summary procedure then a show-cause would suffice.
On the other band, if the enquiry procedure is adopted then this process will be gone through to the end. Switching of courses, midway is not provided for under the rules. Neither can the rules be treated with the flexibility as has been evident in the appeal before us. The show-cause, dated 3rd June, 1981, listed two charges. Charge No, 1 was that of absence on 28th May.
1981. An Enquiry Officer was appointed who has hardly conducted any enquiry. The learned counsel for the respondents relied entirely on presumptions that the appellant was absent on 28th May, 1981 and that we must believe that to be true. We cannot. And hence the charge of absence on 28th May, 1981 has not been substantiated. It is baseless for the respondents to say at para. 4 of their written statement that the appellant was absent from 28th to 31st May, 1981 when, by their own admission, the appellant had his rest day on 30th May, 1981 and was NOT supposed to be on duty, This position was admitted at the bar. On 31st May, 1981 the appellant by his own admission, went to the Sessions Court to obtain bail before arrest, against the F.I.R. Which was got registered with the Police by the XEN and is mentioned as charge No, 2 in the show-cause, dated 3rd June, 1981.
According to him, he made an application but the respondents deny that no such application was ever made. We take it that the appellant left the office on 31st May, 1981 without permission but in the desparate situation in which he was, even his application would not have been accepted and, in order to avoid arrest, he had to do what he did. This absence has, therefore, mitigating circumstances.
14. We now deal with the final show-cause which has been reproduced at para. 5 above. It is interesting to observe that it is neither final nor a show-cause. It is something out of nowhere and could be termed only as yet another charge whereby the appellant refused to accept the show- cause, dated 3rd June, 1981. This charge, by its very nature, had to be established through a proper enquiry but was not.
15. We are surprised that in a simple case of this nature, the respondent officials should have displayed such gross incompetence in a field which should be on their finger tips. Administration of justice, as we have repeatedly held, is the most important aspect of administration in general for without the proper administration of justice, no machinery would endure and move.
16. As to the limitation, the law in respect of certain categories including the clerks of WAPDA was not well-settled. Quite often they went to the Labour Courts and obtained relief. It was only after the learned Supreme Court judgment in the case of F. U. Malik that the law was finally laid down, holding all WAPDA employees to be civil servants for the purpose of Service Tribunals Act, 1973. The appeal before us pertains to pre-F. U. Malik era. Also, in the circumstances of the case, condonation of delay is warranted and we order accordingly.
17. In the result, we have no doubt that the appellant has not been given a proper opportunity of defence and, this fact notwithstanding we have found nothing against him that has been substantiated before us beyond a reasonable doubt. We, therefore, set aside the order of his dismissal and reinstate him into service with consequential benefits w,e,f, the date of his dismissal.
18. No order as to costs.
19. Parties be informed.
' A.
0. RAZIUR RAHMAN (MEMBER). -Because of certain very peculiar features of this case, I am tempted to add a few remarks to those already recorded by my learned colleague.
21. From the photostat copies of office record produced before us by the appellant, and placed by us on the file, it is observed that entries in the complaint register show the appellant as being present on duty on 28th May, 1981 and 29th May, 1981 and that 30th May, 1981 was his off-day.
Therefore, the allegation that the appellant was absent from duty on these three days, without permission, appears to be prima facie baseless. As regards absence on 31st May, 1981, as observed by my learned colleague, the absence of the appellant was due to his being busy in the Court of the Sessions Judge, in connection with his efforts to obtain bail before arrest.
22. So far as the report of the Enquiry Officer is concerned, it is a thoroughly useless document, not worth the paper it is written on. Not only it is written in deplorably poor Eaglish, full of ungrammatical and meaningless sentences, and incoherent expressions, it hardly makes any sense at all. Apart from conveying that, according to the Enquiry Officer, the appellant was guilty of absconding from duty from 28th May, 1981 to 31st May, 1981, it does not indicate how this conclusion was arrived at, nor whether any witnesses were examined and documents brought on record to prove the allegation against the Appellant.
23. It is also worth noting that, whereas the show-cause notice, dated 3rd June, 1981, mentions, among the charges, that the appellant stopped the jeep of respondent No, 1 and threatened to kill him, neither the Enquiry Officer's report nor the impugned order passed by the Executive Engineer records any finding on this point. The impugned order also does not mention the specific allegation on the strength of which the appellant had been found guilty of misconduct and punished with dismissal from service. In fact, it is not a speaking order at all and is much too cryptic to appear convincing or reasonable.
24. Since no evidence was led on the charge of stopping the Executive Engineer's jeep and threatening to kill him, it is obvious that the Enquiry Officer has not found the appellant guilty on this count. That being so, the order of dismissal from sevices for mere absence from duty for a couple of days or so does not look like a decision taken in a reasonable and judicious manner.
25. Even if the above facts were not there, the setting aside of the impugned order was unavoidable, in view of the points discussed by my learned colleague. I have only added the above points to highlight some of the more deplorable features of this case, which make it more outstanding among the many cases of proceedings under Efficiency and Discipline Rules coming to our notice that have been conducted in a hopelessly bad and lamentable manner.