JUDGMENTMOHAMMAD SIDDIQUE KHATTAK, MEMBER:- This appeal has been filed by Zahir Shah S/O Abdul Wahid, Formerly Junior Clerk D.C's Office Dir at Timergarah, against the order of respondent No.1 and 2 whereby he was compulsorily retired from service, praying that the impugned orders be set aside and he be reinstated in sendee with all back benefits accruing therefrom.
2. The facts of the case, as brought out in the appeal are that the appellant was working as reader to Extra Assistant Commissioner Timargara at the the of his suspension. The circumstances leading to this suspension were that he was allotted a residential house in 1987 in Chakdara on the conditions that he would vacate it within 30 days of the receipt of notice for vacation, as this was a designated house for Tehsildar Adenzai. On appointment as Tehsildar Adenzai, Mr.Didan Gul Safi submitted an application on 8.11.1988 to respondent No.2 requesting him to get the house vacated for him. On receipt of this application respondent No. Directed A.C. Timargara to get the house vacated from the appellant immediately. The A.C. Timargara in turn asked the EA.C. Chakdara for arranging vacation of the house and also issued a notice on 27.11.1988 to the appellant to vacate the house within thirty days failing which disciplinary action would be initiated against him. The appellant in response to the notice requested that since he had no accommodation of his own, he may either be provided alternate accommodation to accommodate his family or altraatively he may be given some the to find out accommodation for himself. Respondent No.2 was annoyed at this request and gave adverse remarks in his annual Confidential Report for 1988 which were communicated to the appellant on 19.2.1989 (Annexure-B on file). The allegations were denied and reply was furnished on 16.3.1989 (Annexure-C on file). Respondent No.2, on receipt of the appellant's reply, suspended him from service vide his orders dated 9.4.1989 (Annexure-D). The appellant was then immediately served with a charge sheet and Assistant Commissioner Timargara was appointed as Inquiry Officer and the appellant was directed to submit his explanation to the charge sheet within 14 days of its receipt (Annexure-E and F). The appellant submitted his reply to the charge sheet on 2.5.1989. He also requested for affording him opportunity of personal hearing.
The appellant was given another charge sheet on 15.5.1989 on the reply to the adverse remarks in his ACR. The A.C. Timargara formulated his inquiry report wherein the appellant was found guilty of the charge and major penalty was recommended for him. The appellant was then directed to appear before respondent No.2 on 30.5.1989 in connection with the show cause notice (Annexure- I). On 1.6.1989 the appellant was removed from service (Annexure J). Not content with the removal of the appellant from service, respondent No.2 also ejected the appellant and his family from the house through police and also arrested him with his two sons and sent them to judicial lock up.
3. Against the order of respondent No.2 the appellant submitted an appeal to respondent No.1 who converted the penalty of removal from service into compulsory retirement vide his order dated 9.10.1989 (Annexure-L). Feeling aggrieved with this order he has come in appeal to this Tribunal.
4. The orders have been assailed on the grounds that the allegation of misconduct were not proved against him, the proceedings were conducted in violation of the rules, no show cause notice was given to him, nor the inquiry report was furnished to him, the proceedings were malafide and the penalty imposed on him was not commensurate with the charge levelled against him. The orders were oppressive, capricious, arbitrary and against the rules, so liable to be set aside.
5. Respondent No.1 and 2 in their comments, have submitted that the appellant was allotted a residential house on the condition that he would vacate it within thirty days when it was required.
On posting of Tehsildar Adenrai, the appellant was asked through a notice, to vacate the house.
The appellant had a house in Dir and notice for vacation was issued on 27.11.1988 and till 10.6.1989 he was constantly arguing that he could not find alternate accommodation but when he was ejected he managed another accommodation within a couple of days where he is still reading. The appellant also brought political pressure on the administration through Ms.PA and Ministers of Dir District requesting for giving him the to enable him to find accommodation for himself but he had no intention of vacating the house. The notice period was extended from the to the. On receipt of inquiry report he was called so as to pursuade him to vacate the house but he refused. After removal from service he was no more a Government servant he was ejected by force after giving him a notice. Instead of one month he was almost given seven months for vacation of that house, W hedid not give positive response and remained in accupation of the house. The action taken against him was in accordance with the rules and the charge sheet issued to him was itself a show cause notice.
6. Respondent No.1 in his comments has stated that the appellant, guilty of misbehaving and defiant attitude, deserved major penalty but because of his long service he was dealt with leniently by converting his removal from service into compulsory retirement.
7. Counsel for the parties heard and record perused. Counsel for the appellant argued that the departmental action taken against the appellant was not in accordance with the procedure laid down in the NWFP Government Servants (Efficiency and Disciplire) Rules, 1973, because the inquiry officer was appointed by the authority himself without first appointing the authorised officer thus respondent No.2 acted both as authorised officer and as authority which amounts to violation of Rule 5 of the said rules. Moreover the penalty imposed upon the appellant according to the counsel for the appellant was harsh and excessive and not commensurate with the charge of not vacating the government accommodation particularly when the appellant had thirty years long service with unblemished record. Besides, his wife was sick and his children were studying in various Colleges in T!|ana, he should not have been forced to vacate the house without providing him alternative accommodation. The Government Pleader, on the other hand argued that since the appellant had himself given an undertaking to vacate the house allotted to him on notice he should have vacated it without resisting and resorting to political pressure. He was morally bound to abide by his commitment, more so, when he was a Government servant. He was given a lot of the and instead of one month, he passed 7 months and even then he did not vacate the house, which meant that he was not prepared to vacate the house at all. The second point that the Government Pleader agitated was that the appeal of the appellant was the barred, because respondent No.1 decided his appeal on 9.10.1989. He submitted an application for a copy of the order on 7.12.1989 and got it the same day. Thus he moved his application for a copy of the order very late i.e. After about 2 months, whereas he should have come to the Tribunal within a month of the order of the appellate authority as required under rule 4 of the NWFP Service Tribunals Act, 1974 but since he failed to do so, therefore, his appeal is hit by limitation.
8. No doubt he committed to vacate the house within a month if required and he was given ample the to find alternate accommodation for himself but instead of resorting to extreme step of removal from service, despite his thrity years long service, he could be ejected through police as was done later had they not been compassionate to him by providing him alternate accommodation. Such an extreme step was not at all warranted particularly when the appellant was a low paid employee and had a family of I6 members. Such moments in life are not infrequent when a person cannot abide by his own undertaking and because of obvious limitations the appellant could not keep up his commitment. We feel that the penalty imposed on him for not abiding by his undertaking was very harsh. The appeal succeeds on this point alone. Respondent No.2 in taking action against the appellant did not even care to follow the requirements of rules. He failed to appoint authorised officer to proceed against the appellant and instead acted himself as authorised officer by appointing an inquiry officer a person who had earlier given the appellant a notice to vacate the house. Impartial inquiry in a case cannot be expected of a person who is a party to it. Again respondent No.2 issued the appellant a charge sheet when it was the job of the authorised officer under rule 5 and 6 of the NWFP Government Servants (Efficiency and Discipline)
Rules, 1973. Furthermore no show cause notice was given to the. Appellant before the imposition of major penalty on him. This is evident from the parawise comments of respondent No.2, the relevant portion of which is reproduced below:- Tara-13(d) The charge sheet issued to the appellant is itself a show cause notice as evident from its last para. The last para of the charge sheet issued under letter No.2876/PF dated Timargara the 9.4.1989 reads as under: Now therefore, I Habibullah Khan, Deputy Commissioner Dir Authority hereby charge sheet you for non compliance of Orders and direct you to submit your explanation to the Assistant Commissioner Timargara (Enquiry Officer) within 14 days from the receipt of this charge sheet and show cause as to why disciplinary action may not be taken against you under the rules, ibid failing which it would be presumed that you have no defence to offer.
If this is a show cause notice as held by respondent No.2 then we would be constrained to say that he had very limited knowledge of the NWFP Government Servants (Efficiency and Discipline) Rules 1973 under which action is stated to have been taken against the appellant.
9. Strangely enough on furnishing an explanation to the adverse remarks communicated to the appellant another charge sheet was served on him vide letter No.6064/PF dated Timargara the 13th May, 1989 and the appellant was directed to submit his reply to the charge sheet to the inquiry officer i.e. Assistant Commissioner Timargara. On receipt of the explanation to the adverse remarks respondent No.2 was supposed to take a decision whether to retain or expunge the remarks but he gave the appellant a second charge sheet which was not at all needed. Lastly the orders of removal of the appellant from service were issued by respondent No.2. All this shows that the function of an Authorized officer and authority were arrogated to himself by respondent No.2 and thus he exceeded his powers in utter disregard of the rules on the subject. He acted as a judge in his own cause, thus grossly violated the principles of natural justice. Finally we come to the point of late submission of the appeal to the Tribunal, an objection raised by the learned Government Pleader during his arguments. None of the respondents have raised this objection in the para-wise comments on the appeal. Anyhow we would like to deal with it before parting with the case. The departmental appeal was decided and announced on 9.10.1989 but it was reduced to writing on 29.The .1989. As submitted by the appellant on solemn affirmation, there was strike of the clerical staff in those days and there was no one to receive application from him for the supply of the copy of the order. He resided in Dir and it was not possible for him to stay in swat till such the the strike was called of. He applied for a copy and got it on 7.12.1989 and on 31.12.1989 submitted the appeal.
He could not get a copy before 29.11.1989 because the order, though announced, was reduced to writing. Delay of 7 days is not much the if viewed in the circumstances of the case, lt is condonable and is accordingly condoned. Moreover this objection becomes insignificant if viewed against the overall merits of the case.
10. To sum up respondent No.2 has not been able to deal with the case dispassionately and judiciously and has inflicted punishment on the appellant which by no means was commensurate with the charge of backing out of his commitment. Moreover respondent No.2 is guilty of exercising powers which were not available to him under the rules. In the circumstances we accept the appeal, set aside the impugned order and direct that the appellant .Be reinstated 4n service forthwith. The period from 1.6.1989 to the date of reinstatement be treated as leave without pay to the extent it is available to him under the rules.