' CH. HASAN NAWAZ (MEMBER).--While he was working as Office Chowkidar, during the year 1983-84, at village Khairanwala in Sheikhupura Sub-Division, the appellant was served with notice dated 18- 8-1983 (Annex.-A) which said that he remained willfully absent from duty during the period from 10-8-1983 to 14-8-1983, without any intimation to the Office and that "this act of omission and commission being of serious nature warrants strict disciplinary proceedings" against him under the Efficiency and Discipline Rules, applicable to him. This notice shows that on consideration of his case, the competent authority decided that no formal inquiry needs to be conducted in the matter and that proceedings should be held under the provisions of Rule 5(iv) of the WAPDA Employees (E & D) Rules, 1978. He was called upon to explain in writing within 14 days of the receipt of the notice as to why "all or any of the minor penalty/penalties described in Rule 4 of the Rules, "should not be imposed" upon him and why he "should not be proceeded against under Rule 5(v) of WAPDA Employees (E & D) Rules, 1978.
2. It appears from the record that he reported for duty on 15-8-1983, when he was served with an office order (Annex.-B) placing him under suspension with immediate effect on the allegation of willful absence from duty from 10-8-1983 to 14-8-1983 without any intimation to the office.
3. On 12-11-1983, he was removed from service with immediate effect (Annex. F) by the competent authority on the basis of allegation of absence without leave made in notice dated 18-8-1983 with the observation that he did not submit any explanation in writing in response to that notice.
4. The appellant's departmental appeal (Annex.-I-1) dated 11-12-1983 submitted to the competent authority went without a response and after allowing the expiry of mandatory period of 90 days, he filed the present appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973, challenging the validity of the order of his removal from service.
5. As we have seen from the facts of the case, the only charge against the appellant was that he will fully remained absent from the office from 10-8-1983 to 14-8-1983. It has been pleased that this charge is factually incorrect in that he was present in the office on 10-8-1983 in spite of sickness. It is further pleaded that on 11-8-1983, he submitted an application in writing for one day's casual leave through Faqir Shah, Lineman, Kharianwala Sub-Division, WAPDA, where after, he went home because of illness which continued till 14-8-1983. On 15-8-1983, after having recovered, he reported for duty but was suspended by the Sub-Divisional Officer.
6. Merits of the case apart, the record leads us to the conclusion that there has been a serious and incurable flaw in the disciplinary proceedings on account of which the appellant has not been able to defend himself. As already seen from notice dated 18-8-1983, the competent authority was of the opinion that no formal inquiry was necessary in this case. This being so, procedure laid down in Rule 5(iv) of the Rules was adopted. In rule 5(v) (a), it has been laid down that on receipt of the report of Inquiry Officer or the Inquiry Committee, the competent authority shall consider the same and if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed and shall inform the accused, supply him a copy of the report and call upon him to show cause within a reasonable time why the proposed penalty should not be imposed.
7. Clause (v)(b) of this sub-rule, provides that the above procedure of determining provisionally penalty to be imposed asking the accused to show cause and affording an opportunity of personal hearing shall also apply to cases, where the accused was issued explanation letter under rule 5(iv) and the explanation submitted by him was found unsatisfactory.
8. Nothing can be more clear to show that second show-cause notice obviously under clause v(a) of the Rules has also to be served even in cases where no inquiry is held and the procedure of serving the accused with an explanation letter under Rule 4 of the Rules is adopted. Here in the present case, however, no such notice was served in compliance with the provisions of clauses (v)
(a) and (v)(b). There is no provisional determination of the penalty to be imposed and the appellant was never called upon to show cause against the proposed action. Nor, for that matter, an opportunity of personal hearing was afforded to him. This was a serious irregularity which has obviously resulted in miscarriage of justice. It is not possible to say in these circumstances that the appellant was given an opportunity to defend himself. The penalty imposed against him amounts to an ex parte condemnation.
9. It seems to us that the second show-cause, notice was not served probably due to the fact that the appellant had not submitted any explanation in writing in response to notice dated 18-8-1983.
In the first place, there is no evidence to show that he was duly served with this notice. But even if he had been so served, the authority was legally bound to serve him with a second show-cause notice in terms of Rule 5(v)(b) of the Rules. His failure to submit an explanation in writing did not exonerate the respondent from service of second show-cause notice, in fulfillment of the statutory requirements.
10. There is another aspect of the matter. As the facts go, the appellant was removed from service merely on account of unauthorized absence for a period of so short a duration as only five days.
The punishment awarded against him is obviously by no means proportionate to the quantum of his guilt, even if it be assumed that his absence was willful and not on account of illness. This aspect would cause an application to the provisions of Rule 5-A of the Rules which lays down that if an employee does not perform his duties diligently or is an inefficient worker, or is a habitual malingerer, that is a late-comer, a willful absentee from duty, or avoids his duties on false pretenses, a written warning shall be given to him by his immediate superior and if he fails to reform himself, a report shall be made within a period of two months from the date of the notice of warning to the officer named, who may, without prejudice to the provisions of Rules 5 and 6 after obtaining his explanation, impose on him the penalty of stoppage of increment, for a period of one year, without cumulative effect.
11. In the present case, although it has been alleged that he was willfully absent from duty, there is nothing on the record to show that he was in the habit of remaining away from the office without leave, as would bring his case within the mischief of misconduct, as defined in Rule 2(5) of the Rules. Even if the respondent's case be taken as correct, absence for five days on one occasion was not sufficient to establish that he has been guilty of misconduct, so as to justify the imposition of penalty as severe as removal from service.
12. In this view of the matter, we hold that the impugned order of removal from service passed by the Sub-Divisional Officer is not legally sustainable. It is, therefore, set aside in acceptance of the appeal with the direction that the appellant shall be re-instated in service with effect from the date of removal with all consequential benefits. There will be no order as to costs.