' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Muhammad Arif is Driver of Van of WAPDA. He was charged as under:-
(1) That a WAPDA Vehicle No, LHV-5928 (Nissan Pick Up) has been stolen from your residence Village Baddar Call, Niaz Baig on 30-11-1989 due to breach of discipline and Rules.
(2) due to deviation to observe Rules and carelessness and failure on your part for not parking of WAPDA Vehicle No, LHN-5928 (Nissan Pick-Up) at Saidpur Grid Station, a valuable loss has been made to Authority.
' Conduct prejudice to good order and service discipline is that you are prima facie guilty of gross negligence as stated above.
' Inquiry was held and final order dated 21-9-1991 was passed by Executive Engineer whereunder three increments were stopped without future effect; and he was directed to pay Rs,3,05,100 as cost of Van and the recovery to be effected in monthly instalments equal to 1/3rd of his basic pay.
2. The allegation against the appellant is simple that he took official van to Pattoki Grid Station after performing his official duties he came and parked the vehicle at his house on his way back to his house from where the van was stolen. A case was registered in the Police. Inquiry was also conducted in which it was found that the appellant violated the rules and theft was due to his negligence.
3. The contention of the learned counsel for the respondents is that the allegation against the appellant amounts to misconduct and the learned counsel has referred to E&D Rules that recovery could be made from the appellant in accordance with law.
4. On the other hand, the learned counsel for the appellant has submitted that at the most this can be a case of negligence on the part of the appellant but he has not intentionally put the WAPDA into loss as such the penalty of recovery of such a huge amount is not warranted by law. He referred to 1970 CLC 295.
5. The Inquiry Officer in his report dated 4-3-1991 recorded the following findings:
(1) Driver can park the vehicle at 132 KV Chung Grid Station as well as 132 KV Grid Station Saidpur but he parked the vehicle at his residence beyond the rules, might be he had done this irregularity due to tiredness.
(2) Instruction for parking the vehicles at residence from any Incharge is not proved.
(3) Theft of vehicle from the residence of Driver Mr. Muhammad Arif is proved by the evidence and also statement of Driver as well as police investigations.
' But the punishment has not been recommended by the Inquiry Officer.
6. The explanation of driver is as under:- "To ' The Executive Engineer, T&G Division, ' WAPDA, Lahore.
' Sub:-- CHARGE-SHEET MR. MUHAMMAD ARIF. LORRY DRIVER. Sir, ' Kindly refer to your office letter No, 5511-12, dated 15th September, 1990 on the subject cited above.
2. I, most humbly and respectfully, beg to submit my defence reply as under:-
(a) That the factual position obtaining in the incident bears an important feature. On the afternoon at about 16 hours I was detailed for an official duty from my Sub-Divisional Office to Pattoki Grid Station, WAPDA. I started official duty after working hours alongwith the Line Superintendent Incharge, Camp Site at Pattoki Grid Station, WAPDA. The Line Superintendent was detained there and I returned alone with Vehicle No, LHN-5928 (Nissan Pick-Up) at about 18-30 hours.
(b) Since the Winter Season had set in and the return journey involved night and unforeseen blockades on the way, I left with an impression to the Line Superintendent that in case of any unprecedental delay on the way I have to stay at my residence during the night alongwith the vehicle. This is such a fact well-known even to the SubDivision/Divisional Officer. My residence at Baddar Call, Niaz Baig incidentally happened to be on the way from Pattoki to SubDivision/Saidpur Grid Station, the parking venue of the Vehicle.
(c) Unfortunately the traffic was jammed in the way for which I could hardly reach Niaz Baig at about 22-30 hours in the mid-night in Winter Season. In view of the impression left with the Line Superintendent to stay at residence in case of delay and on the understanding that I could not return to Niaz Baig from Saidpur Grid Station after parking the vehicle there, I unluckily forced by the circumstantial compulsion decided to stay at my residence. Due to heavy rush on the jammed road it was not advisable to park the vehicle at the road side where there was every chance of mishap resulting in a damage to the vehicle as well as to my life.
(d) It was hard luck and misfortunate that I under compulsion circumstances happened to stay at my residence from where the vehicle was stolen during the night.
(3) I am to add in addition to the factual features some rules on the subject and a Court decision contemplating acquittal of an employee after removal from service on account of compulsion of circumstances.
(a) Section 8.1 of the Pakistan WAPDA Revised Transport Rules, 1984 deals with the use of WAPDA Transport after working hours. The Section, inter alia, provides that an officer required for official work after office hours may use official transport between office and residence, provided he is required by the next higher officer to do so. As submitted above I returned from Pattoki leaving an impression with the Line Superintendent to stay at mid-way. My action was, thus, covered under the rules ibid.
(b) The Judicial Law, one of the four heads of 'Service Laws' contemplates that an appeal was accepted for compulsion of unusual circumstances. The decision reported in 1976 PLC (C.S.T.) 77 appearing at page 341 of the book "Civil Services, Law and Practice" by Prof. Masudul Hasan, reads as under:- ' A Forest Guard was charged for negligence resulting in illicit cutting of Forest trees. The incident occurred during war days in far-flung area in the darkness of night. Proper check by light was not possible for the Forest Guard due to black-out and non-availability of the means of communication. Held, the compulsion of unusual circumstances was established which mitigated the charge. Appeal was accepted and the penalty of removal was set aside.'
(c) The Court decision may please be read with in conjunction with the WAPDA Law Division Circular No,LA/27691/84/2648-2948, dated 30th April, 1984 directing the WAPDA administrative authorities to apply the Court/Tribunal decisions in similar and identical cases. My stay at residence with official vehicle was under compulsion of unusual circumstances--Return journey after working hours, night, Blockade of Traffic, location of residence mid-way and non-availability of transport to return to home in Niaz Baig in case the vehicle would have been parked at Saidpur Grid Station.
(4) 'Misconduct' as defined in Rule 2.5(vii) is based on 'habitual negligence' in the Pakistan WAPDA Employees (E&D) Rules, 1978. I have got about ten years of unblemished service. I have never given a chance of omission or commission. The alleged charge under reply happened due to compulsion of unusual circumstances beyond my control. Resultantly the 'Misconduct' is not to be charged.
(5) I request that a chance for personal hearing may please be afforded to enable me to elaborate my defence reply more appropriately.
(6) On the face of what has been enumerated in the paras. 'infra' I am to request earnestly that my defence reply duly supported with the rules, Authority Orders and the Judicial Laws may very graciously be considered sympathetically and I may very kindly be exonerated from the alleged charge and oblige."
' Under the Pakistan Wapda Employees (E&D) Rules, 1978 definition of 'Misconduct' is spread from (i) to (xii) and for the purpose of this appeal the relevant provision is (iv) wilful damage to or loss of the Authority's goods or property. In the instant case the appellant did not intentionally park the van at his house but on his return to Lahore on the way it was under the bona fide and good faith he stayed night at his house and at the most there is negligence on the part of the appellant but it was not a case of wilful damage to the loss of the Authority. The appellant has been punished twice by one order that is stoppage of increments and recovery of loss: And these are two penalties which cannot be imposed by one order, therefore, in our view the penalty of recovery is unjust and unreasonable for the charge of negligence when theft has been proved but the appellant has not been held responsible by Police except that he stayed at the house while coming back after performing official duties. We, therefore, partly allow the appeal and set aside the punishment of recovery amounting to Rs,3,05,100 and maintain the second part of the punishment that is the stoppage of three increments of the appellant which will meet the ends of justice. The appeal stands disposed of in the above terms. No order is made as to costs.