CH. A. REHMAN KHAN (MEMBER).--The appellant, Ghulam Rasul Sajid, while working as Meter Reader since April, 1979, was terminated from service vide impugned Office Order No. 246, dated 18-4-1982. The extracts of which are given below:- "Read:Show-cause notice in respect of Mr. Ghulam Rasul Sajid L.D.C. (M/Reader) Wassanpura Sub- Division vide this office Memo. No. 5647-49, dated 22-11-1981.
Read:Defence reply, dated 7-12-1981 of Mr. Ghulam Rasul Sajid L.D.C. (M/Reader) Wassanpura Sub- Division, Lahore and inquiry conducted by Inquiry Officer and his inquiry report vide Memo. No. 355, dated 21-2-1982.
Read:Show-cause notice in respect of Mr. Ghulam Rasul Sajid L.D.C. (M/Reader) vide this office Memo. No. 11122-24, dated 2-3-1982 received by him on 8-3-1982.
Read:Defence reply of Mr. Ghulam Rasul Sajid, dated 1-3-1982 and 14-3-1982 of show-cause notice, dated 2-3-1982.
Read:Written statement of Mr. Ghulam Rasul Sajid in response to his personal hearing on 7-4-1982.
"ORDER: 1, the Executive Engineer, Badami Bagh Division, being competent Authority under Pakistan WAPDA E & D Rules 1978, am satisfied that as it is not reasonably practicable to give said Mr. Ghulam Rasul Sajid L.D.C. (M/Reader) an opportunity to show cause under terms of Rules of the aforesaid rules and, therefore, the said Mr. Ghulam Rasul Sajid is hereby terminated from the services with immediate effect under Rules 4(b)."
2. The appellant has challenged the impugned order, cited above being illegal, unlawful, vague and, therefore, untenable in the eyes of law.
3. The appellant was working as Meter Reader when he was served with a show-cause notice, dated 22-11-1981. The extract of show-cause notice is given below:- "Memo. No. 5647-49 EP Dated 22-11-1981 Subject: SHOW-CAUSE NOTICE While posted as L.D.C. (M/Reader) in Wassanpura Sub-Division during 1981 you have been showing the premises locked from 1/81 to 8/81 of Reference No.1122232200-51 installed in the name of Mr. Muhammad S.1 Ganda Nala Gall No. 20 Aziz Road, Misri Shah Lahore. In fact the monthly consumption of the consumer comes out to be 600 to 700 Units with the results that 8000 Units were accumulated by you with your ulterior motive for bargaining with the consumer at latest stage. You have thus proved yourself guilty misconduct on your part and, therefore, being served with this show-cause notice within 14 days to explain your position stating therein as to why a severe action should not be taken under E & D Rules applicable to you. If the above allegations proved, you will be guilty of misconduct under Pakistan WAPDA Employees (E & D) Rules applicable to you and you will render yourself liable to all or any of the penalties as described in para. No. 4 of the above said rules.
You are, therefore, advised to put in your defence reply within 14 days of the receipt of this show- cause notice, otherwise it will be presumed that you have no defence to offer and an ex parte drastic action which may tantamount to the dismissal of your services will be taken against you."
4. The appellant submitted his reply tothe show-cause notice and denied the allegation levelled against him. An enquiry was ordered to be conducted by Sub-Division Officer, Badami Bagh Sub- Division. It was contended by the learned counsel for the appellant that the Inquiry Officer did not conduct the enquiry according to rules and that the appellant was not given a chance to be present while recording the statements of the witnesses or to cross-examine them.
5. A second show-cause notice was also issued to the appellant on 2-3-1982. When the appellant asked for office record to be made available to him so that reply to the second show-cause notice be given, he was denied an opportunity to see the relevant record. However, to avoid the delay the appellant submitted his reply to the show-cause notice reiterating his previous defence reply and also objected to the mode of conduct of enquiry. The order of termination of services of the appellant was passed without regard of the defence reply. The impugned order of termination of services in such circumstances is not sustainable in the eyes of law. It was contended by the learned counsel for the appellant that the appellant did not record the reading of the premises of the complainant, Mr. Ghulam Nabi son of Fazal-ud-Din, because he had locked his premises. This fact was reported by the appellant to S.D.O. Wassanpura Sub-Division who did not have this fact checked up. It is true that the appellant did not record the water reading for the months of February and March, 1981 because he suspected a foul play. When the premises were actually checked up later by the appellant it was found that there was a discrepancy of 8,079 Units and a report was made accordingly. However, this report was changed by someone in the Revenue Office. The actual cutting makes a difference of about 4,000 Units as shown in the meter reading list of Sub-Division duly signed by the S.D.O. Wassanpura. This is not at all in the knowledge of the appellant and, therefore, he cannot be held responsible for this.
6. The representative of the respondent Department was asked to produce the record to confirm or otherwise the assertion made by the learned counsel for the appellant but he failed to do so. Apart from the enquiry report the representative of the respondent Department could not produce the relevant record. This makes the case rather one sided because in the absence of record it cannot be asserted whether the contentions made by the learned counsel for the appellant were untrue.
The representative of the respondent Department was also unable to say whether the enquiry was conducted according to rules and an opportunity of cross-examination to the witnesses was at all given to the appellant. In our opinion these provisions are mandatory in law and makes it incumbent upon the Enquiry Officer to comply with it. A non-compliance with it would consitute denial of a reasonable opportunity which per se would vitiate the action taken.
7. We find that the impugned order is vague and defective as thereby the appellant was awarded a penalty of termination of services under the Efficiency and Discipline Rules while termination of services does not find a place in the penalties prescribed under the said Rules. Of course, compulsory retirement, removal from service and dismissal from service are mentioned as penalties in the Efficiency and Discipline Rules and it is to be noted that all of them would amount to termination of service. Such being the position the competent authority should and can award only the penalties mentioned in the Efficiency and Discipline Rules by making a specific mention thereof. The impugned order thus` being vague and defective also is not maintainable in the eyes of law.
8. For the foregoing reasons, the appeal is accepted, the impugned order is set aside and it is directed that the Appellant shall be re-instated into service from the date of his suspension with all consequential benefits .
9. No order as to costs.