' CH. HASAN NAWAZ (MEMBER).--On 19-3-1983 when the appellant was serving as Line Superintendent-II, Sanda Sub-Division, Lahore, his next annual increment was stopped for a period of one year without future effect by the Superintending Engineer, Second Circle, Lahore, in exercise of his powers as the competent authority.
2. In the present appeal under section 4 of the Service Tribunals Act, 1973 filed on 26th July, 1983, it is prayed that the aforementioned order No, C-277/T, dated 19-3-1983. (Annex. "D") may be set aside as illegal arbitrary and untenable, with a direction to the respondent to release the appellant's annual increment with consequential benefits. A prayer has also been made for costs of the appeal.
3. Facts constituting the background of the impugned order are very material. On 8-4-1980, the appellant was served with charge-sheet dated 30-31980 wherein it was alleged that "while posted as such, by abusing your official position, you got a connection installed at the premises of Mr. Muhammad Yasin, Proprietor, Yasin Laundry, Millat Road, Sanda Khurd, Lahore against Reference No, 1144-04512-055, disconnected through Mr. Muhammad Rafiq, Lineman Grade-II of the said Sub- Division during February, 1980, without any documents/orders and working beyond your sphere of duty which corroborates your ulterior motive to extract illegal gratification from the consumer".
4. On 20-5-1980, the following order was passed by the competent authority "Consequent upon the examination of the above documents relating to this case and hearing the accused L/S personally on 17-5-1980,it has been observed that although the action of the accused L/S in allowing his Lineman to disconnect the connection of consumer bearing Ref. No,1144-44512- 055 was in the interest of Authority, yet before allowing such disconnection, he should have first verified the factual position. I, being competent authority, hereby warn him to be more careful in future."
5. Subsequently, on 26-4-1982, another order in respect of the same subject-matter and on the basis of the same charge-sheet was passed by the Superintending Engineer to the following effect: "Consequent upon the re-examination/reconsideration of the case regarding allowing Mr. Muhammad Rafiq, Linesman Grade-II, Sanda Sub-Division, Lahore to disconnect the connection bearing Reference No,1144-04512-055 of M/s. Yasin Laundry, Millat Road, Sanda, Lahore, by Mr. Muhammad Ashraf, Line Superintendent Grade-H, Sanda Sub-Division, Lahore on 7-2-1980, in the light of report of Inquiry Officer (Executive Engineer, Baghbanpura Division, Lahore), the punishment already inflicted upon Mr. Muhammad Ashraf, Line Superintendent, Grade-II, vide this Office Order No, 208/T, dated 20-5-1980 is hereby enhanced to the extent of stoppage of one annual increment, without future effect."
6. It appears from the record that it was pointed out to the Superintending Engineer by the Director(Adorn.) Power-I, that the provisions of rule 6 of the Pakistan WAPDA Employees (E & D)
Rules, 1978 had not been complied with while proceeding against the appellant, whereupon the Executive Engineer, Baghbanpura, Lahore was appointed, as Inquiry Officer who submitted a report to the Chairman, Area Electricity Board, Lahore. It was on the basis of this report chat the subsequent order dated 26-4-1982 was passed by the Superintending Engineer, whereby the earlier penalty imposed on 20-5-1980 was enhanced to stoppage of one annual increment. It was also pointed out that the earlier order dated 20-5-1980 had not been withdrawn and that it was mentioned as new order dated 26-4-1982.
7. On these facts, the respondents sought the advice of their Legal Adviser whether the procedure adopted by the Superintending Engineer was in accordance with law and whether he should in the first instance cancel the earlier order ,dated 20-5-1980 and then inflict another punishment by issuing a fresh order.
8. It further appears from the record that the afore-mentioned earlier orders dated 20-5-1980 and 26-4-1982 were withdrawn as being without jurisdiction by Office. Order No, C-276/T, dated 19-3- 1983, which must have been done on the advice of the Legal Advisor on the same date, that is to say 19-3-1983. The appellate order was passed by the Superintending Engineer in the following terms: "Consequent upon the consideration of defense reply tendered by the accused Mr. Muhammad Ashraf, L/S-II, Sanda Sub-Division, Lahore, in regard to the charge-sheet and examination of the abovementioned documents/correspondence besides hearing the accused L/S in person on 17-5- 1980, the charge levelled against him in the charge-sheet, stands proved. I, as Competent Authority, therefore, hereby order to stop his next annual increment for one year without future effect."
' As already observed, the appeal is directed against this order.
9. We feel that the facts of the case are enough to lead us to the conclusion that the punishment awarded by the Superintending Engineer is in absolute disregard of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. These facts leave little room either for any analysis or presumption, such as could be necessary to establish that the impugned order has not been passed in accordance with law. This being so, we feel no hesitation in granting relief prayed for by the appellant and declare that the impugned order was not warranted by the circumstances of the case and that it was passed in disregard of the provisions of the WAPDA (E & D) Rules.
10. Rule 6(1) provides that where an Inquiry Officer or Enquiry Committee is to be appointed, the competent authority shall frame the charge-sheet and communicate it to the accused together with the statement of allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration. In the present case, however, there is nothing on the record to show that the charge-sheet was accompanied by a statement of allegations explaining the charge and other relevant circumstances, as required by the rules. There is no doubt about the fact that non-observance of the provisions of this rule did cause prejudice to the appellant's case.
11. Further, as we see from the charge-sheet, the allegation against the appellant was that he allowed disconnection of line, without any documents orders, while working beyond the sphere of duty and that this "corroborated his ulterior motive to extract illegal gratification from the consumer." Three things should thus have been proved to establish the charge. First the appellant acted without any documents/orders. Second, he went beyond the sphere of his duty while allowing the disconnection. Third is that there was ulterior motive to extract illegal gratification from the consumer.
12. It seems to be rather a strange charge-sheet. We are unable to understand as to what exactly was meant to be conveyed by the allegation that he acted without any documents/orders. We are at a loss to understand as to what documents/orders did the appellant require to act in this matter, for apparently he seems to have acted in connection with a campaign launched by the respondent with effect from 21-11-1979 in view of shortage of power supply. Then, one wonders, what is there on the record to suggest that he worked beyond the sphere of his duty. It rather appears from the material on the record that it was his duty to contrive the disconnection and that he did so in the interests of the Authority, as is apparent from the order dated 20-5-1980, whereby he was warned to be more careful in future. This order rather implies that he was 'careful' in the first instance.
13. Still further, there is absolutely no proof of the fact that he got the connection severed with any motive to extract illegal gratification from the consumer. It should be pointed out as a relevant circumstance that the line was disconnected, not by the appellant but by Muhammad Rafiq, Lineman, Grade-II. This being so, there could be no possibility of acceptance of any illegal gratification by the appellant. He could not expect that the consumer would offer any gratification to him, disregarding the Lineman who actually put him off the line. To say nothing of the proof, the allegations made in the charge-sheet suffer from basic infirmities and they could not have carried the respondent's case anywhere. These allegations could not have possibly been established, as to bring about a justification for punishing the appellant, much less in the manner in which it has been done by the respondent in the present case.
14. Then, there is nothing on record to show that the provisions of rule 5(v)(a) of the rules have been observed. The report of the Inquiry Officer does not appear to have been duly considered by the competent authority and there is nothing to suggest that any tentative opinion was formed regarding the penalty to be imposed. Nor is there anything to bear out that the appellant was informed of any such tentative opinion and supplied with a copy of the report. Nor, for that matter, did we find anything to show that he was served with a final show-cause notice or that he was supplied with a copy of the report of the Inquiry Officer. While inflicting the punishment, the competent authority did not consider the cause shown by him and there was no determination of the fact that the charge had been proved, in accordance with the requirement of the rules.
15. Before taking leave of the matter, we might as well deal with the question of limitation. The appeal is accompanied by an application under section 5 of the Limitation Act for condo nation of delay. Even the respondent has raised an objection in the written statement that the appeal is barred by time. There seems to be some misunderstanding on the question of limitation, for what we find from the record is that the appeal is within time. The impugned order was passed on 19-3- 1983. An appeal under rule 11(2)(d) of the rules was filed on 13-4-1983 to the competent authority.
No decision has admittedly so far been made on the departmental appeal. The present appeal having been filed on 26-7-1983 within 120 days of the departmental appeal of 13-4-1983, is obviously within time.
16. In view of the aforementioned findings, the appeal is accepted and Office Order No, C-277/T, dated 19-3-1983 is set aside as being unjustified and illegal. The respondent is directed to release the annual increment of the appellant with consequential relief, as prayed for by him.
17. No order as to costs.
18. Parties to be informed accordingly.