HIDAYATULLAH KHAN (MEMBER).---This appeal has been filed by Amir Shah, Ex-Security Guard, Office of the Bureau of Agricultural Information N: W.F.P., Peshawar, against the order dated 28-6- 1992 passed by respondent No. 3, whereby the appellant has been removed from service.. It has been prayed that the impugned order may be set aside and the respondents be directed to reinstate the appellant in service with full back benefits,
2. The facts averred in the appeal are that the appellant while serving as security guard in the respondent department was issued an undated charge---sheet and statement of allegations and communicated certain baseless, unfounded and ambiguous charges levelled against him. The appellant had not yet submitted his reply to the abovesaid charge-sheet and statement of allegations when on 22-3-1992 he was also served with a show-cause, notice by the same respondent, calling upon him to show cause as to why the appellant should not be dismissed from service, also directing the appellant to submit his reply to the charges levelled against him in the statement of allegations which was enclosed with the said show-cause notice. In the show-cause notice it was also communicated that the reply of the appellant to the already served charge--- sheet and statement of allegations was still awaited. The appellant submitted his detailed reply to the allegations levelled against him by fully explaining the correct position of the case and denying all the allegations. Without holding an inquiry, the appellant was served with an order dated 13-4- 1992, whereby the appellant was informed that he would be given an opportunity of personal hearing in his defence. Without serving a final show-cause notice upon the appellant, the penalty of removal from service with immediate effect was imposed upon the appellant vide order dated 28-6-1992. The appellant preferred a departmental appeal to respondent No. 2. On 15-7-1992 but excepting the letter dated 3-8-1992 (Annexure `f), he has not received any response so far. .
3. Assailing the impugned order on the grounds that the disciplinary proceedings were taken against the appellant in utter disregard of the N.-W.F.P. Government Servants (E & D) Rules, 1973.
The appellant was not guilty of any act or omission, which could constitute misconduct and as such the disciplinary proceedings are illegal, unlawful and void. The mind of respondent No. 4 is spelt out from the charge-sheet and statement of allegations, whereby is the capacity of Authorised Officer he thought it proper and decided to hold an inquiry himself in the case but latter on as an afterthought he changed his mode of probing into the matter and resorted to the issuance of show-cause notice which is totally unwarranted, uncalled for and is against the law.
The allegations levelled against the appellant were of factual nature and inquiry was very much essential in the matter and having not done so, the Authorised officer has acted in violation of the law and rules. The appellant was not served with a final show-cause notice and hence the case of the appellant was prejudiced on this score too.
4. Respondents have filed their parawise comments. In the preliminary objection it has been stated that the appellant has not come to the Tribunal with clean hands. On factual side it has been stated that since his appointment throughout his service career, the appellant was found irregular, irresponsible, disobedient and non-cooperative. He was served with uncounted explanations, warnings, stoppage of pay, absentia treated without pay but he did not mend his behaviour.
Several other allegations have been levelled against the appellant. The Department had no other way except to take disciplinary action against him. The charge-sheet alongwith a detailed statement of allegations had been issued to the appellant. In response to the charge-sheet issued to the appellant in which he had been directed to put in written defence or to appear in personal hearing within 14 days after the receipt of the charge-sheet, the appellant had failed to do so. After the expiry of stipulated period, .It was revealed that the charges levelled against him have been confessed by the appellant. He was also served with a show-cause notice. In response to the show-cause notice, the appellant has submitted his reply which was examined' and found unsatisfactory. It was not felt necessary by the Authorised Officer to probe further into the case by appointing another person as inquiry Officer, however, he was given a chance of personal hearing, which was conducted on 23-4-1992. Sufficient time and chances had been given to him to mend his behaviour but all in vain. On perusal of his service record and examination of his case in the light of E&D Rules, it was not necessary to probe further into the case and to hold an inquiry. Hence straightaway show-cause notice was issued. It was not felt necessary by the office to consider his appeal. No violation of E&D Rules, 1973 has been made in his case. Proper procedures had been adopted and his case was decided in the light of facts forwarded by the Authorised Officer to the competent Authority.
5. Arguments heard and record perused. Counsel for the appellant argued that the proceedings conducted and the order of removal from service passed in the instant case are against the express mandatory provisions of (Efficiency and Discipline) Rules, 1973. In the instant case the appellant was served with a show-cause notice alongwith statement of allegations, thereby indicating that action was contemplated under section 5 of subsection (2) of the E&D Rules; (it may be mentioned here that the charge-sheet initially served on the appellant, asking him to furnish reply within 14 days, is undated and therefore, the period during which the appellant was bound to furnish reply/explanation could not be determined). Later on, the Authorised Officer vide his order dated 22-3-1992 served the appellant with a show-cause notice which also contained reference to the previous charge-sheet served upon the appellant. The show-cause notice does not itself contain any thing to show that the action was then being taken under sub-rule (3) of Rule 5 of the E&D Rules. For convenience sub-rule (3) of Rule 5 of the said rules is reproduced as under:-- 5--(3) If the Authorised Officer decides that it is not necessary to have an inquiry conducted through an inquiry Officer or inquiry Committee, he shall--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the Authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
A perusal of this provision clearly shows that the Authorised Officer has the discretion to direct holding of regular inquiry or not. The orders of the Authorised Officer shall clearly indicate the procedure, which is to be adopted for taking disciplinary action against an accused official. The accused official should be in clear knowledge about the relevant provision of the rules under which action is proposed to be taken against him so that he could defend himself according to the laid down procedure. In the case of the appellant the proceedings taken are not clear whether action contemplated to be taken was under sub-rule (2) or (3) of Rule 5 of the E&D Rules. In the first instance a charge-sheet and statement of allegations were served upon the appellant while later on the appellant was served with a show-cause notice. The Authorised officer could not adopt the two courses, simultaneously, as provided by sub---rules (2) and (3) of rule 5 of the E&D Rules, neither he could switch over, after adopting of one course of procedure to the other one. It was further argued that although the Authorised Officer has discretion to direct regular inquiry or not, but that discretion is not absolute and was to be exercised judicially on the principles for sound reasons. It was according to the rule of law and principles of justice that in the normal course, regular inquiry was to be held and in exceptional cases it could be dispensed with by an order in writing of the Authorised officer for clear information of the accused official of such action proposed to be taken against him giving him reasonable opportunity to show cause against dispensing with a regular inquiry. If the allegations were such that major penalty of dismissal from service or removal was to be imposed then justice demanded that Departmental inquiry must have been held, because there is a lot of difference between Departmental inquiry in which witnesses are examined and cross-an, member) examined and defence witnesses can be produced and action provided by sub-rule (3) of Rule 5 of the Efficiency and Discipline Rules, 1973, wherein such opportunity is afforded. It was stated that in this case no separate order was passed by the Authorised Officer dispensing with the regular inquiry and the appellant was also not informed about the same. He further argued that according to sub-rule (4) of Rule 5 of the E&D Rules if it was proposed to impose a major penalty, the Authorised Officer shall forward the case to the Authority alongwith the charge-sheet and statement of allegations served upon the accused official, the explanation of the accused and finding of the Inquiry Officer (if appointed) and his own recommendations regarding the penalty to be imposed. From the documents and evidence brought on record, there is no such report of the Authorised Officer containing his own recommendations regarding the penalty to be imposed. It was further contended that various allegations levelled against the appellant were question of facts and for arriving at a just conclusion it was necessary that a Departmental inquiry must have been held to prove the charges and affording opportunity to the accused official to defend himself according to the provisions laid down by law. The various allegations levelled against the appellant bear no date and time, which was a prerequisite in order to give opportunity to the appellant to defend himself against each and every charges. It is also not explained as to why action under the relevant rules was not taken against the appellant in time, when he was allegedly found guilty on different occasions of so many charges to such an extent has not been explained by the respondents.
6. The respondents as well as the Government Pleader have no reply to the factual and legal objections raised by the counsel for the appellant.
7. The Tribunal while agreeing with the arguments put forth by the learned counsel for the appellant holds that the proceedings in the present case have not been taken according to the prescribed procedure laid down in the relevant provisions of the N: W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, as such the impugned order of major penalty is not legal and not sustainable, the same is set aside and. The appeal is accepted. The respondents are directed to reinstate the appellant in service, from the date of his termination from service. The respondents are however at liberty to proceed against the appellant afresh, if they so desire but that must be in accordance with law/rules. The period during which the appellant remained out of service shall be treated as extraordinary leave without pay as he has I performed no Government official duty during this period. Parties are left to bear their own costs. File be consigned to the record.