' SAJJAD ALI SHAH, J.---In this appeal with leave is challenged judgment dated 13-1-1991 of the Federal Service Tribunal, Islamabad, whereby service appeal of the appellant is dismissed on the ground that it has no merit.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant was serving as Lower Selection Grade Clerk (BPS-9) posted as Head Clerk Phone Branch, Karachi, when on 7-7-1986 he received order from Director, Telephones-II giving him additional work of "Minister communication cases". Assistant Director, Phones-II, who was immediate superior officer of appellant forwarded a note recommending that appellant should be spared as he was already loaded with heavy wbrk on account of shortage of staff and for that reason additional work may be assigned to some other Head Clerk. On the following day appellant was suspended and on 20-7-1986 he was served with charge-sheet on the ground that he had disobeyed the order of superior officer which amounted to misconduct. Appellant submitted his defence denying allegations. Mr. Zahiruddin Siddiqui, A.D.
Engineering-II proceeded to examine appellant by directing him to answer questionnaire which was done. After formal personal hearing, order of compulsory retirement of appellant from Government service was passed on 18-11-1986. According to the appellant, he had put in 28 years of service. He filed departmental appeal which was dismissed after which he filed service appeal before the Tribunal which is also dismissed as stated above.
3. We have heard learned counsel for both the parties. It appears from the impugned judgment of Service Tribunal that charge against the appellant is that he disobeyed office order passed on 7-7- 1986 directing him to look after "Minister communications cases" in addition to his own duties, which he refused. It is submitted on behalf of the appellant that he did not refuse or disobey the order but apprised his own immediate superior officer about the order and the factual position with regard to his own load of work and on that note his immediate superior officer A.D. Phones-II agreed and recommended in writing that appellant was already overloaded with heavy work in his normal duties, which he had been performing in the face of shortage of suitable staff, hence additional work should be assigned to some other Head Clerk.
4. We have noted' in the record that order assigning additional duty was passed on 7-7-1986 and on the same day appellant forwarded a note in writing to A.D. Phones-II, who on the same day added his own note in hand in the margin agreeing with appellant and recommending that he should be spared. There is also another note of the some officer i.e, A.D. Phones-II made on the following day directing appellant to clear all the files on his table and then start attending to additional work as well. It, therefore, appears that inbetween these two notes this officer was called and persuaded to change his mind and not recommend that appellant should be spared from additional duty.
5. On 8-7-1986 appellant was suspended and on 20-7-1986 he was charge-sheeted and required to show cause within 7 days as to why penalty of dismissal from service as specified in Government Servants (Efficiency and Discipline) Rules, 1973 should not be imposed upon him on the ground of misconduct. Mr. Zahiruddin Siddiqui A.D. Engineering-II was appointed as Enquiry Officer. On 3-8-1986 appellant filed written reply to charge-sheet in which allegation levelled against him was denied. Appellant asked for change of Enquiry Officer but his request was declined. In the enquiry no witnesss was examined and as it appears from the enquiry report dated 26-8-1986, four allegations were noted from which one related to refusal to do additional work and the other three with regard to the objections raised by the appellant himself. It further appears that appellant was cross-examined on these points and his defence in writing was considered and in one short paragraph conclusion is noted that charge of misconduct stands justified. Vide order dated 18-11-1986, authorised officer, who is Assistant General Manager-I, Karachi, Telecommunication Region, Karachi, retired appellant compuslorily from Government service with effect from 17-11-1986 with all admissible benefits treating period of suspension as leave admissible.
6. In Government Servants (Efficiency and Discipline) Rules, 1973, "misconduct" is defined. Rule 4 contemplate minor and major penalties. Compulsory retirement is included in major penalties.
Rule 5 empowers authorised officer to direct enquiry against Government servant through an Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. If it is decided that there should be enquiry either by Enquiry Officer or Enquiry Committee then procedure laid down in Rule 6 is to be followed and the requirements enumerated therein are that charge shall be framed and Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross-examine the witnesses and he can also produce witnesses in his defence. It appears that in the instant case this procedure as such was not followed in letter and spirit and witnesses were not examined in support of the charge. It was necessary for that reason that ultimately major penalty has been imposed upon the appellant. The manner in which enquiry proceedings were conducted by way of questionnaire without examination of witnesses in support of charge or defence cannot be approved as it is not consistent with requirements of Rule 6 of the abovementioned Rules. Before the Service Tribunal in written objections filed on behalf of respondents order of compulsory retirement has been defended on other unconnected grounds that appellant was inefficient and unwilling worker. In the enquiry report no comment is made upon plea of appellant that his immediate superior officer recommended that appellant was overburdened with his own work and should not be given additional work. For the facts and reasons mentioned above, we are of the view that order of compulsory retirement is not sustainable as enquiry was not held in accordance with procedure laid down in Rule 6 of Government Servants (Efficiency and Discipline) Rules, 1973. We, therefore, set aside impugned judgment of Service Tribunal and order of compulsory retirement of appellant and direct that he be reinstated with back benefits. Since we are striking down order of compulsory retirement of appellant on the ground that enquiry was not held as required under the rules, it is open to the respondents to take action against appellant on that ground but strictly according to law and rules.
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