' CH. HASAN NAWAZ (MEMBER).--Two appeals under section 4 of the Service Tribunal Act 1973, with identical questions of law and facts, to set aside the orders of appellants' compulsory retirement from service dated 20-5-1985 have been taken together for disposal in this judgment.
2. Mushtaq Mahmood appellant in Appeal No, 181(L)/1985 filed on 25-i-1985, was working as Electrician A.C. Plant Sub-Division, WAPDA House Lahore whereas Bashir Ahmad Piracha appellant of Appeal No, 184(L)/85 instituted on 28-7-1985 was A.C. Mechanic in A.C. Plant Sub-Division, WAPDA House, Lahore, at the time of the passage of impugned orders.
3. These are the facts in the background: On 27-11-1984, at 10-45 a.m., the appellants made a report to S.H.O., Police Station Civil Lines, Lahore to the following effect:-- {{URDU TEXT}}
4. The S.H.O. Recorded this report against serial number 19 of the Daily Diary of the police station with the observation that the allegations made by the applicants did not make out any cognizable offence and there was no apprehension of the breach of peace. Physical examination of one of the applicants revealed a simple injury about which it was said by the S.H.O. That he himself wanted to get it examined. He further said in the record of his proceedings that he did not feel the necessity of taking the applicants for medical examination. A copy of the report was sent to the concerned officers of WAPDA for necessary proceedings.
5. Some time later on the same date, the appellants made the following complaint in writing to the General Manager, Thermal Power Station, WAPDA House, Lahore:--- {{URDU TEXT}}
6. A month later, on 28-12-1984, Syed Mudabbar Hussain Jaffary, S.D.O. Who was also involved in this incident made a complaint in writing to S.S.P., Cantt. Division Lahore which makes the following reading:-- {{URDU TEXT}}
7. On the basis of this complaint, a case under sections 506/34 and 341, P.P.C. Was registered at Police Station Civil Lines, Lahore, which was followed by investigation and necessary proceedings in accordance with law. The details of those proceedings are not material for determination of the point involved in these appeals.
8. A few months after the aforementioned occurrence, Mushtaq Mahmood appellant was served with a letter of explanation dated 12-3-1985 which reads as under:-- Subject: Explanation ' While working in A.C. Plant Sub-Division, WAPDA House, Lahore as an Electrician during the year 1984, you committed the following acts of omissions and commissions:-- ' In accordance with the orders/instructions of the Authority, the technical staff members while on duty are compulsorily required to wear `Dangri' in order to ensure their own safety as well as safety of various costly equipment's/machines. The S.D.O. (Operation), A.C. Plant Sub-Division, WAPDA House, Lahore, checked you on 27-11-1984 at about 8-40 a.m. And found that you were performing your duties at that time on the Panel Board of the A.C. Plant Room of WAPDA House, Lahore, without wearing `Dangri' although the same was available with you. The above S.D.O. Directed you to wear your `Dangri' in accordance with the orders/instructions of the Authority. Upon this you stalled the compliance of above orders. The said S.D.O. Again repeated Authority's above orders for compliance but you flately refused to obey the same and instead you started abusing the S.D.O.
And created a scuffle with him. You also attacked the aforementioned S.D.O. With an iron pipe. The other staff present on duty at that time stopped you from doing so but you rushed to Sub-Division and took a hockey from there and assaulted on the S.D.O.
' I, Muhammad Hussain Rana, Resident Engineer (S.E.) GTPS Shandara as 'competent authority' have considered the case under Rule 5(iv) of the Pakistan WAPDA Employees (E&D) Rules, 1978, applicable to you and upon consideration, I have decided that it is not necessary to have a formal inquiry conducted in this case. If the above allegations are established, you will be found guilty of misconduct/inefficiency etc., under the Pakistan WAPDA Employees (E&D) Rules, 1978, you are, therefore, hereby directed under Rule 5(iv) ibid to explain in writing within seven days of the receipt of this letter why all or any of the major penalty/penalties described in Rule 4 ibid should not be imposed upon you and you should not be proceeded against under Rule 5(iv) of Pakistan WAPDA Employees (E&D) Rule, 1978.
' Your explanation should reach the undersigned within the aforesaid period, failing which it shall be presumed that you have declined to offer the same and ex parte action will be taken against you.
' You are also allowed to be heard in person in this case, if you so desire.
' A duplicate copy of this letter should please be returned to this office duly acknowledged by you.
(Sd.)
Resident Engineer, G.T.P.S. Shandara. c.c. Executive Engineer, A.C. Plant Division for information and necessary action.
9. Bashir Ahmad P.Iracha appellant was also served with a letter of explanation of the same date.
We may take notice only of the material part of this notice which is to the following effect:-- "While working in A.C. Plant Sub-Division, WAPDA House, Lahore as Mechanic during the year 1984, you committed the following acts of omissions and commissions:-- ' The S.S.O. (Operation), A.C. Plant Sub-Division, WAPDA House, Lahore checked Mr. Mushtaq Mahmood, Electrician, on 27-11-1984 at about 8.40 A.M. And found that he was performing his duties on the Panel Board of the A.C. Plant Room of WAPDA House, Lahore without wearing `Dangri' although the same was available with him. The S.D.O. Directed him to wear his `Dangri' in accordance with the orders/instructions of the Authority but on his repeated directions, said Mushtaq Mahmood, Electrician flatly refused to obey the lawful orders of the Authority. He started abusing the S.D.O. And also attacked him with an iron pipe and hockey.
' You were also present at that time in the A.C. Plant Room and you sided above Mushtaq Mahmood, Electrician unlawfully and also attacked the S.D.O. With the help of a brick to support the above said miscreant. Both of you jointly assaulted the S.D.O. And as a result of which he received some blows and hits on his person. By virtue of above you have committed gross 'misconduct' under Pakistan WAPDA Employees (E&D) Rules, 1978."
10. Both the appellants submitted identical explanations on 19-3-1985 in response to the letters of explanation. In view of its importance, the explanation is also reproduced in detail:-- "Subject: EX PLANATION Sir, ' I have received your letter dated 12-3-1985 on the subject noted above on 13-3-1985 whereby I have been asked to explain the allegations against me relating to the incident dated 27-11-1984.
Before giving any reply to the said letter, it is brought to your notice that this matter is sub judice before the National Industrial Relations Commission Pakistan, Islamabad in a petition under section 15/53 of the Industrial Relations . Ordinance, 1969 and the next date of hearing before the Commission has been fixed as 25-3-1985. The same matter is also under investigation before the local police in two cross-cases and evidence by both the contending parties has been produced before the Investigating Officer. In these circumstances I have to seek legal advice as to what would be the affect of the proceedings initiated by you vide your letter dated 12-3-1985 on the aforesaid cases pending before the Police and the National Industrial Relations Commission.
2. Even otherwise the source of information and the complaint forming basis of the allegations contained in your letter against me has not been supplied to me alongwith the letter. In the absence of these documents, it is very difficult for me to give a reply to your letter dated 12-3-1985.
It is also noteworthy that the alleged incident had taken place about four months back and the proposed action is being initiated belately due to reasons best known to the quarters concerned.
' In the light of the facts and circumstances explained above, it is requested that two weeks time may kindly be given to me to give my explanation after seeking proper legal advice."
11. On 1-4-1985, after their explanations failed to bring about any response, the appellants addressed a letter to the Resident Engineer, where it was said that they had asked for the supply of copy of source of information and copy of the complaint filed by the S.D.O. Concerned which made a basis for the allegations against them, so that they may be able to furnish a detailed explanation to letter dated 12-3-1985. They again requested that necessary information and copies of the documents may be supplied to them to enable them to do the needful.
12. On 7-4-1985, the Resident Engineer addressed a letter to the appellants which said that their "replies dated 19-3-1985 and 1-4-1985" were not considered relevant and that the extended period for submission of explanations to the letters of explanation had also expired without any response.
They were directed to attend the Resident Engineer's office at 10 a.m. On 11-4-1985 for personal hearing.
13. Again, an identical response was made by the appellants to letter dated 7-4-1985, in their letters dated 9-4-1985 separately addressed to the Resident Engineer which are to the following effect:-- "I am in receipt of your letter No,RES/Confdl/257/C dated 7-4-1985, wherein I have been asked to appear for personal hearing on 11-4-1985, in connection with the charge of misconduct.
2. It is surprising that without fulfilling the requirments of getting a reply to the charge-sheet and without taking proceedings of enquiry, I have been asked to appear for personal appearing the stage of which has not so far reached. I may remind you that in my letter dated 19-3-1985 and again in my letter dated 1-4-1985, I had requested you to supply me a copy of the complaint forming basis of the allegations against me and also to apprise me of the source of information about the facts alleged against me. I had expressed my inability to give an explanation without having perused the aforesaid documents.
' In the circumstances, I once again request you to supply me the above-mentioned documents as early as possible so that I may be able to give my explanation about the charges levelled against me."
14. Thereafter, the appellants were served with final show-cause notices dated 24-4-1985, each one of which made the following reading:-- "Subject: SHOW-CAUSE NOTICE ' The 'Explanation letter' bearing this office Memo. No, RES/Confdl./ 247-48/C, dated 12-3-1985, on account of acts of omission and commission on your part was received by you on 19-3-1985 as per your dated acknowledgment appended by you on duplicate copy of the above 'Explanation Letter' in token of having received the original one. You were required to submit your defence reply of the same within seven days from the receipt of said 'Explanation Letter' which was not adduced by you.
You applied vide your application dated 19-3-1985 for extension of 14 days period for submission of your defence reply to the above 'Explanation Letter' and the same was also allowed to you but in spite of the same you did not furnish the same even on the expiry of extended period.
' Consequent upon consideration of above documents, relevant record and your oral explanation given by you to the undersigned on 21-4-1985 during the personal hearing afforded to you into this case, I, Muhammad Hussain Rana, Resident Engineer (S.E), G.T.P.S. Shandara being `competent authority' under Rule 2(3) of the Pakistan WAPDA Employees (E&D) Rules, 1978, am provisionally of the opinion that as to why penalty of compulsory retirement from service as defined under Rule 4 ibid should not be imposed upon you.
' You are, therefore, hereby informed under Rule 5(iv)(b) ibid to show cause in writing within seven days from the receipt of this show-cause notice, why proposed action should not be taken against you.
' Your reply to the show-cause notice must reach the undersigned within the stipulated period, failing which it shall be presumed that you have no defence to offer and ex parte action will be taken against you.
' You are also allowed to be heard in person in this case, if you so desire.
' A duplicate copy of the show-cause notice may please be returned to the undersigned, duly acknowledged by you.
(Sd.)
RESIDENT ENGINEER, G.T.P.S., SHAHDARA"
15. The appellants submitted more or less similar explanations on 2-5-1985 where, in addition to the averments that they were still in need of copy of complaint made by the S.D.O. About the occurrence of 27-4-1984, the allegations made in the letter of explanation dated 12-3-1985 and final show-cause notice dated 24-5-1985 were totally denied. These explanations to the final show-cause notices were in some detail. The appellants not only refuted the allegations made against them but also came out with a counter version. It was pleaded that there was no justification for proceedings under rule 5 (iv) of the Efficiency and Discipline Rules 1978 and that a detailed inquiry should have been conducted in the light of the facts of the case under rule 5(iii) of the Rules.
16. After explanations to final show-cause notices had been submitted, the appellants were compulsorily retired from service with the following orders passed on 20-5-1985:-- "ORDER ' Consequent upon consideration of defence reply dated 24-4-1985 of accused Mushtaq Mahmood, Electrician, A.C. Plant Sub-Division, WAPDA House, Lahore, to his above show-cause notice, examination of above documents/relevant record and after giving him personal hearing on 15-5-1985, the undersigned finds him guilty of the charges levelled against him in his above show- cause notice.
' I, Muhammad Hussain Rana, Resident Engineer (S.E), G.T.P.S, Shandara, as 'competent authority' under Rule 2(3) of the Pakistan WAPDA Employees (E&D) Rules, 1978, therefore, hereby impose the penalty of compulsory retirement from his service with immediate effect, under Rule 4 ibid."
17. After the appellants' departmental appeals dated 1-6-1985 addressed to the Chief Engineer Gas Turbine Power Station Faisalabad were rejected by orders dated 10-7-1985 validity of the impugned orders of compulsory retirement dated 20-5-1985 was challenged in the present appeals, primarily on the ground that under the circumstances of the case, the respondents should have proceeded under rule 5(iii) of the (Efficiency and Discipline) Rules for a regular inquiry, after service of charge- sheets, to enable them to defend themselves against the action proposed to be taken and that the Authority's failure to adopt this procedure was a material irregularity, resulting in miscarriage of justice. Another ground in support of the appeals is that the appellants are workmen under the provisions of Labour Laws and the letters of explanation dated 12-3-1985 are time-barred under Ordinance VI of 1968.
18. In defence it was pleaded that the appeals are barred by limitation and they are not accompanied by any application for condonation of delay. On merits, the gist of the respondents' case is that the procedure adopted by them in the disciplinary proceedings was in accordance with the rules and that no injustice had been caused to the appellants. It was further pleaded that the Labour Laws were not applicable to the appellants and that the letters of explanation were within time.
19. Rule 5(iii) of the Rules prescribes that the competent authority shall decide whether in the light of the facts of the case or the interests of justice, an inquiry should be conducted through an Inquiry Officer or Inquiry Committee, and that if he so decides, the procedure indicated in rule 6 shall apply. After careful application to the material on the record, I am of the view that there is substance in the contention that a regular inquiry should have been held against the appellants in the interests of justice, which could be possible only by serving them with charge-sheets accompanied by statements of allegations, so that they would have had the opportunity to cross- examine the witnesses and produce evidence in defence. The summary procedure adopted by the Authority under Rule 5(iv) of the Rules, was not warranted by the circumstances of the case and the impugned orders resulting from this procedure cannot be said to have promoted the ends of justice. It is impossible to say, under the circumstances that the appellants have been given fair opportunity of defending themselves against the action proposed to be taken against them.
20. Show-cause notice dated 12-3-1985 served under rule 5(iv) of the Rules on Mushtaq Muhamood appellant contains certain positive allegations of fact. It is alleged that he was seen by the S.D.O. Concerned, without a "Dangri" during the performance of his duties in violation of the instructions of the Authority on the subject. It is further alleged that he flatly refused to obey the S.D.O.'s repeated orders to wear "Dangri" and started abusing him that "he created a scuffle with him and also attacked him with an iron pipe on intervention of the staff present on duty at the time of occurrence" and that he rushed to the Sub-Division and took a hockey from there and assaulted on the S.D.O."
21. The charge against Bashir Ahmad Piracha appellant in a similar notice under rule 5(iv) of the Rules of the same date is that he was present at the time of aforementioned occurrence at A.C.
Plant Room and that he sided with Mushtaq Mahmood appellant "unlawfully and also attacked the S.D.O. With the help of a brick to support the above miscreant". It was further alleged that "he asaulted the S.D.O. Alongwith Mushtaq Mahmood appellant and that as a result of this assault he received some blows and hits on his person".
22. The attending circumstances apart, the aforementioned allegations made in notices dated 12- 3-1985 clearly indicate that the procedure laid down in rule 5(iii) of the Rules should have been adopted in the light of the facts of the case and the interests of justice, rather than the summary procedure prescribed in rule 5(iv) of the Rules which resulted in the passage of the impugned orders of compulsory retirement. The allegations against the appellants were such in nature, as required the production of evidence for their proof which could be possible only by adopting the procedure laid down under rule 6 of the Rules. Show-cause notices dated 12-3-1985, served on the appellants spelled out a positive story, which if established, could result in their conviction by a Court of competent jurisdiction; which is more than enough to establish the serious nature of charge against them. Discipline-wise, the allegations, if proved, would have established a gross misconduct, justifying even their dismissal from service. Therefore, I find it impossible to hold that there was any justification whatever, for adopting the summary procedure of rule 5(iv) of the Rules, where no evidence was to be recorded and the appellants would not have had the opportunity of cross-examining the witnesses against them to question the veracity of their statements. As already mentioned before, to say nothing of other circumstances, appearing from the record the very nature of allegations made in the show-cause notices dated 12-3-1985 was enough to enable the competent authority to decide that a regular inquiry was required under the circumstances of the case and in the interests of justice. I do not think it possible to hold that the competent authority has exonerated itself of the duty of applying itself to the facts of the case already available before the issuance of notices, to decide whether an inquiry was required in the interests of justice.
23. The adoption of procedure under rule 5(iii) of the Rules necessitating an inquiry after framing a chrage-sheet with statement of allegations was all the more necessary in the background of certain material facts appearing from the record. It has already been noticed that the appellants lodged a report about the occurrence of 27-11-1984 on the same day with the Police Station Civil Lines, Lahore. The details of this report have already been seen and it will be sufficient to notice for the purpose of this discussion, that it makes out a positive counter-version against the allegations subsequently made by the competent authority in the letters of explanation dated 12-3-1985. This being so, in all fairness, the appellants should have been given an opportunity to establish the allegation made by them in the report lodged with the S.H.O. Of Police Station Civil Lines, Lahore.
This, as already held, could be possible only, if a regular inquiry had been held into the matter, where apart from other things, the appellants would have had the opportunity of leading evidence in their defence and in support of their counter-versions.
24. In the statement of facts, it has been seen that Syed Mudabbar Hussain Jaffary, S.D.O. Involved in the matter also made a complaint of the occurrence of 27-11-1984 to S.S.P., Cantt Division Lahore, a month later on 28-12-1984, on the basis of which a First Information Report was recorded at police station Civil Lines Lahore. Though slightly different from the allegations subsequently made in letters of explanation dated 12-3-1985, in one or two material particulars, the complaint made to the S.S.P. Tells the S.D.O.'s part of the story. Here again, the details are unnecessary and it would be enough to point out that this complaint brings out the S.D.O.'s, version of how the occurrence came about. But this is immaterial in so far as the point under consideration is concerned. What is of real importance is the fact that there was no justification for preferring one version to the other without proper inquiry and recording of evidence justifying a definite finding. I am of the view that the S.D.O.'s complaint was as good as that of the appellant and the truth or otherwise of these two versions could be determined only in consequence of a regular inquiry, which has not been conducted in this case, obviously to the detriment of the interests of justice.
25. Then, no less important is the fact that certain documents on the record placed by the appellants bear out that their relations with the S.D.O. Concerned left everything to be desired. If not inimical, they were certainly very unpleasant. Mushtaq Mahmood appellant has placed three applications on the record to show that he asked for one month's leave on three different occasions on the ground of some domestic business and that they were refused by the S.D.O. I also see from the record that after his applications for leave were refused, he made a complaint of this fact to the Executive Engineer concerned, where it was alleged that his applications had been rejected as a measure of personal revenge, although certain other employees had been granted leave on different occasions. I am not concerned with whether the allegations made in this complaint were correct or if there were reasonable grounds for the grant of leave requested by Mushtaq Mahmood appellant. What is material, in the context of present discussion, is that his requests for leave were not allowed and that he did make a complaint to the Executive Engineer concerned. It may also be mentioned as a relevant fact that a complaint was made against the S.D.O. To the General Manager Thermal Plants WAPDA House, Lahore by the employees of A.C. Plant where it was prayed that they may be relieved of the highhandedness of the S.D.O.
26. Even the relations of Bashir Ahmad Piracha appellant with the S.D.O. Were far from being pleasant. The record shows that his services were terminated by order dated 20-7-1980, that he got this order set aside by the Federal Service Tribunal on 29-8-1983 and that the Tribunal judgment was upheld by the Supreme Court on 28-2-1984 on appeal by the respondents. On reinstatement, he joined his duty and it is alleged in the appeal that the S.D.O. Used abusive language against him and "adopted an inimical attitude towards him from the very beginning". It is alleged that certain allowances and other benefits admissible to the appellant were not paid to him. Applications Annexures A to A/3 and B bear out that he had been making applications for recreation and medical allowances and other such amenities to the Authorities concerned on various occasions. It is alleged in paragraph-3 of the appeal that he had been making complaints to the concerned Authorities against the corrupt officials. It is immaterial, like in the case of applications made by other appellant, whether there was truth in the allegations made by Bashir Ahmad Piracha appellant in his complaint. The importance of these documents lies in the fact that the complaint made by him lends support to the contention that his relations with the Authorities were strained. I am of the view that in the background of these strained relations, it was all the more necessary for the competent authority to have applied itself closely to the available material to decide whether an inquiry had to be conducted in the interests of justice, which does not appear to have been done, with the result that it is not possible to repudiate the contention and that appellants have been denied the right to defend themselves and the summary procedure adopted by the competent authority has resulted in miscarriage of justice.
27. Reference may be made with advantage to the cases of Muhammad Arif Goraya in Appeal No,216(L)/84 (1989 PLC (C.S.) 828) decided by this Tribunal on 6-6-1989 and 8-12-1988 respectively. A Full Bench judgment of this Tribunal in the case of Rafaqat Ali in Appeal No 54(L)/85 1990 PLC (C.S.) 533 is also in point. Even in those cases, like we have in the present case, the allegations were such as required the production of evidence, which could be possible only in the event of a regular inquiry, It was held that the summary procedure prescribed in rule 5(iv) was not warranted by the relevant circumstances and that it amounted to pulpable denial of the established right of an accused to defend himself against the proposed action. As in the previous cases, this is evidently a typical case for evidence. Mere show-cause notices could not possibly have given the appellants an opportunity to defend and prove that the allegations against them were baseless. Reliance may also be placed on the case of Mr. M. Shamsi v. Pakistan International Airlines Corporation and another 1988 PLC (CS) 451 also decided by a Full Bench of this Tribunal.
Another case in support is that of Lal Muhammad and another v. Government of Sindh 1980 SCMR
850. In Lal Muhammad's case it was observed by the Supreme Court that "a casual perusal of the defence of these appellants would have convinced the most ignorant layman that the appellants would not be able to meet the charges against them unless they were permitted to produce evidence in support of their defence".
28. During the course of arguments, a point was raised (not by me) probably on the basis of competent authority's observation made in the impugned orders of 20-5-1985, that the appellants failure to submit their explanations to show-cause notices dated 12-3-1985 amounted to confession of their guilt, which obviated the necessity of a regular inquiry, in accordance with the procedure laid down in rule 6 of the Rules. In the first place, it is factually incorrect to say that the appellants failed to submit any explanation to the show-cause notices dated 2-3-1985. As already noticed in the statements of facts, both the appellants sent letters dated 19-3-1985 (Annexure E in both the files) to the Resident Engineer, where it was brought to his notice that the matter was sub judice before the National Industrial Relations Commission, Islamabad in a petition under section 15/52 of the Industrial Relations Ordinance 1969. The letters further said that the matter was also under investigation before the local police in two cross-cases and both the parties had produced evidence before the Investigating Officer. Further, the appellants requested for provision of certain documents to be able to give a detailed explanation. There being no response, the request was repeated through letter dated 1-4-1985 addressed to the competent authority (Annexure 'F in both the files). In the presence of these letters, it is not possible to say that the appellants failed to respond to the show-cause notices and that no explanation was rendered. They brought certain facts to the notice of the competent authority and asked for certain documents. Whether this request was genuine or otherwise, is immaterial. What is important is that they did respond to the letters of explanation.
29. Even if it be assumed that letters dated 19-3-1985 and 1-4-1985 addressed by the appellants to the competent authority in response to show-cause notice dated 12-3-1985, received by them on 13-3-1985, did not amount to an explanation within the meaning of rule 5(iv) of the Rules, it is impossible to hold, under the circumstances of this case, that the appellants' failure to render a detailed explanation at this stage amounted to confession by any stretch of imagination; considering that both the parties had approached the Police authorities with different reports of the same occurrence on 27-11-1984 and 28-12-1984 making out contradictory versions. It may be repeated for the sake of emphasis that even in letter dated 19-3-1985, they pointed out that the matter was pending investigation before the Local Police in two cross-cases. This being so, I find it impossible to hold that the appellants' failure to submit a detailed explanation to show-cause notices dated 12-3-1985, could in any manner be taken to have amounted to confession, as could have exonerated the competent authority of the duty of applying itself to the facts of the case and decide whether a regular inquiry was needed in the interests of justice.
30. The argument was that the appellants' failure to submit a detailed explanation to notices dated 12-3-1985, if at all it be so, amounted to confession because it deprived the competent authority of the opportunity, even at that stage when notices under rule 5(iv) had already been issued, to retract its earlier decision for the adoption of a summary procedure and order a regular inquiry after framing a charge-sheet with a statement of allegations. With respect to this view, if this is the only reason for holding that the absence of detailed explanation amounted to confession, the argument is still not sound for the reason that the appellants eventually did submit detailed explanations dated 2-5-1985 (Annexure J in both the files) in response to final show-cause notices dated 24-4-1985 (Annexure-I). We find that in these detailed explanations, they not only refuted the allegations made by the competent authority in show-cause notices dated 12-3-1985 but also came out with a counter-version in very clear terms. If the competent authority required a detailed explanation with definite denial of allegations against them, to be able to retract its decision of proceeding under rule 5(iv) instead of rule 5(iii) of the Rules, as has been argued, this was furnished to it on 2-5-1985. No change in the procedure was, however, made in spite of the detailed explanations and there are reasonable grounds for believing that the competent authority would have acted in the same manner even if such detailed explanations had been submitted in response to earlier notices of 12-3-1985.
31. It would be expedient to examine the point raised from another aspect. Let us assume that the appellants failed to furnish detailed explanations containing positive denial of the allegations made against them, in response to notices dated 12-3-1985 or to final show-cause notices of 24-4- 1985. Even in the event of such an assumption, it would not be possible to hold, by any means whatever, that their failure amounted to confession under the circumstances of this case where both the parties had gone to the police with different versions in respect of the same occurrence and the matter was under investigation. As already noticed, rule 5(iii) says that the competent authority shall decide whether in the light of facts of the case, or the intersts of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. Rule 5(iv) says that if the competent authority decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he should (a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of action and (b) give him an opportunity to submit a written explanation against the action proposed to be taken. It is quite clear from these provisions that the decision on whether an inquiry should be conducted either in the light of the facts of the case or the interests of justice, has to be made by the competent authority before the issuance of show-cause notice under rule 5(iv) of the Rules, which is done only after it is decided that no inquiry ought to be conducted. In other words, the competent authority's decision in respect of the necessity or otherwise of an inquiry, pertains to pre-show-cause notice stage and it has got nothing to do with whether the accused fails to furnish an explanation after the notice is issued. This failure cannot, by any means, constitute a basis for a decision which has necessarily to be taken before the accused is ever called upon to render an explanation.
32. The only other point which requires determination is that of limitation. I find that the departmental appeals dated 1-6-1985 having been rejected on 10-7 .985, the appeals filed on 25- 7-1985 and 28-7-1985 are within time and no application for condonation was required. As a matter of fact the respondents' learned counsel did not press the point of limitation at the Bar.
33. For these reasons, the impugned orders dated 20-5-1985 and 10-7-1985 are set aside in acceptance of both the appeals. The appellants shall be reinstated in service with immediate effect, but the respondents will, however, be within their authority to initiate fresh disciplinary proceedings against them after adopting the procedure laid down in rule 5(iii) of the Rules within six months of the communication of this judgment to them. In case they failed to do so, the appellants shall be entitled to all the back benefits. In case fresh disciplinary proceedings are held, the question whether they are entitled to such benefits will depend upon the result of those proceedings. There will be no order as to costs.
34. Parties to be informed.