ORDER.
RAJA MUHAMMAD ASHRAF KAYANI (MEMBER).--Mrs. Daud Sultana, a midwife in Pay Scale No, B-4, has filed the present appeal under section 4 of Service Tribunals Act, 1975 and has impleaded the District Health Officer, Mirpur and Director Health Services, Azad Jammu and Kashmir, Muzaffarabad as respondents.
2. The appellant has assailed the Order No, 8033-36/M0/85, dated 6-10-1985 passed by the District Health Officer, Mirpur whereby she was awarded major penalty of termination of services. Her appeal against the said order was also dismissed by the Director Health Services vide Order No,19202/ DHS/87, dated 13-8-1987.
3. The relevant facts for the disposal of the present appeal are that the appellant was serving as midwife in Rural Health Centre Chak Sawari. The Civil Medical Officer of the Centre informed the District Health Officer, Mirpur vide his Letter No, 193/CMO/85, dated 18-7-1985 that the said midwife was found involved in the cases of illegally causing miscarriages of the women approaching her.
The District Health Officer vide his Order No, 5217-21/DHO/85, dated 30-7-1985 constituted a Board of Inquiry to probe into the allegations against her. The said Board held an inquiry and also found the appellant responsible for causing illegal miscarriages etc. and on the recommendations the Board of Inquiry, the Services of appellant were terminated by the District Health Officer, respondent No,2, vide impugned order dated 16-10-1985. The appellant challenged the order before respondent No,2 without any success and hence this appeal.
4. We have heard the arguments and perused the record. The learned counsel for the appellant has submitted that the report prepared by the Board of Inquiry was not correct as the appellant in fact had made no confession before the Board. Neither any show-cause notice was served upon her nor she was afforded any opportunity of being heard and as such she was condemned unheard. It was next argued that the impugned orders were made mala fide. The respondents have controverted the claim of the appellant and have also raised the objection that the appeal was time-barred.
5. We have given our anxious consideration to the entire matter and find that the respondent No, 2 has proceeded in most illegal manner while initiating the proceedings against the appellant. The procedure for initiating proceedings against a public servant is provided in rule 5 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter referred to as the Rules). Rule No, 5 reads as under.- Initiation of proceedings_.- -(l) If, on the basis of its own knowledge or information placed before it, the authority is of the opinion that there are sufficient grounds for proceeding against a Civil Servant, or where in a case in which Anti-Corruption Committee/Committees set up by. the Government from time to time has decided to take departmental action, it shall direct the authorised officer to proceed against such Civil Servant.
(2) Where no authorised Officer stands designated in respect of the accused Civil Servant, the authority shall simultaneously appoint an officer senior in rank to the accused, to perform the function of an authorised officer.
It would appear from the plain reading of the above rule that if an authority finds sufficient grounds for proceeding against a Civil Servant on the basis of information placed before him, he should direct the authorised officer to proceed against him under the Rules. But in the instant case the authority (District Health Officer, respondent No,2) instead of following the procedure laid down by the above rule of procedure travelled through a short-cut and passed the impugned order in flagrant departure from the relevant Rules. The impugned order was passed on the basis of the report submitted by the Board of Inquiry which was constituted by him without proceeding against the appellant under rule 5 of the Rules. The original as well as the appellate impugned order being violative of the prescribed rule is, therefore, held to be ab initio void. In the circumstances the objection of limitation is immaterial and need not be discussed.
6. The upshot of the above discussion is that the impugned orders are set aside and the appellant is reinstated on her post with all back benefits. The authority may take fresh proceedings against her under the Rules if so advised. No order as to the cost.