SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--The instant appeal is directed against orders dated 14-2-1987 and 1-10-1988 by which the appellant was removed out of service by the Deputy Director, Local Government and his appeal before Secretary Local Government was dismissed.
2. The relevant facts of the case are that the appellant was employed as helper of a truck driver in Basic Pay Scale No, 1 in the year 1977. During the course of his service he was found guilty of an offence under section 4 of Prohibition of Intoxicants Ordinance by Tehsil Criminal Court of Muzaffarabad and was sentenced to imprisonment till the rising of the Court alongwith a fine of Rs,50 in addition. When this fact was brought to the notice of the Department of Local Government, the appellant was removed out of service under the impugned order passed by Deputy Director of that Department. Subsequently the appellant feeling himself aggrieved by the aforesaid order filed an appeal before Secretary Local Government Department but the same was also dismissed vide his order dated 1-10-1988. Now the appellant has brought this appeal under section 4 of Service Tribunals Act, 1975.
3. The appellant's prayer is that the impugned order is not maintainable for the following reasons that:--
(i) he was not afforded an opportunity of being heard by the Director of Local Government nor a show-cause notice was issued to him before passing the impugned order;
(ii) he has completed 10 years' spotless service in the Department and was never blamed for anything done by him involving his moral turpitude;
(iii) he has been punished twice for one and the same offence which is unwarranted by law.
4. The written objections filed on behalf of the respondents are that the appellant's removal was ordered by the respondents on the basis of an order dated 5-3-1983 passed by Tehsil Criminal Court of Muzaffarabad by which he was found guilty for an offence under section 4 of Prohibition of Intoxicants Ordinance and was sentenced to imprisonment till the rising of the Court alongwith a fine of Rs,50 in addition. The appeal is not maintainable for the following reasons that:--
(i) the appellant has been convicted by a Criminal Court of competent jurisdiction for an offence involving his moral turpitude and the sentence has already been executed; the appellant was discharged under the impugned order by Deputy Director of Local Government but he has not been arrayed as necessary party in the memo. of appeal; (iii)Under Civil Servants (Appeal) Rules, 1982 an appeal against the impugned order was competent before the next higher authority which was in case of appellant Director of Local Government and not the Secretary Local Government. But the appellant has made his appeal before Secretary of the Department bypassing his appellate authority viz. Director Local Government;
(iv) the appellant has not availed of departmental remedy at the proper forum and as such his appeal before the present forum is not maintainable;
(v) the appeal is time-barred. The appellant has been prosecuting his appeal before a wrong forum and has not brought his appeal within the period of limitation provided for such appeal under Service Tribunals Act and the Rules made thereunder.
4. The arguments were addressed by the learned counsel of each party. We have considered the arguments and have also perused the record placed on the file. It is duly conceded by learned counsel for the appellant that the appellant was sentenced till the rising of the Court alongwith a fine of Rs,50 in addition by Tehsil Criminal Court of Muzaffarabad and the said sentence was duly executed upon him in accordance with law. Under Rule 9, sub-rule (1), Civil Servants (Efficiency and Discipline) Rules, 1977 it is provided that in a case where a civil servant is convicted of an offence involving moral turpitude which has led to a sentence of imprisonment, he may, after being given a show-cause notice be dismissed, removed from service or reduced in rank without following the prescribed procedure laid down in rules 5, 6, 7 and 8. Sub-rule (2) of Rule 9 further provides that an authority if satisfied for the reasons to be recorded in writing is competent also to dispense with the issue of show-cause notice before imposing any punishment of a major penalty to a civil servant.
In the instant case no notice was issued to the appellant and the authority making the impugned order has not recorded his reasons for not doing so. Under rule 8, sub-rule (1) the issue of show- cause notice for recording punishment of a major penalty is mandatory but under Rule 9, sub-rules
(1) and (2) it is almost discretionary. Since the instant case falls within the purview of Rule 9 of Civil Servants (Efficiency and Discipline) Rules, 1977, Rule 8, sub-rule (1) is not applicable to the present case, the non issue of show-cause notice is not a material irregularity calling for a fresh inquiry in the matter. Hence, the impugned order cannot be annulled on that account. It is well-established that the Deputy Director of Local Government who made the impugned order was a necessary party but the appellant failed to array him as a party in the memo. of his appeal. At the same time we also agree on this point that the appellant has also failed to avail of departmental remedy before the proper forum. Hence, we feel well-advised that the present appeal is not c maintainable and the appeal merits dismissal. The appeal fails and the same is hereby dismissed.