' ROSH AN ALI MANGI (MEMBER).----The relevant facts for the disposal of this appeal are that the appellant satisfactorily rendered fifteen years' service to WAPDA. There occurred an incident whereby a valuable equipment/material worth of Rs,1.5 cores was burnt by way of short circuiting while operating crane by the appellant. This incident took place on 5-5-1994. The appellant was suspended on 6-6-1994. The charge-sheet was served upon the appellant along with statement of allegations on 2-9-1994 to which he made a reply pleading that his action was not deliberate but was unintentional and the same action could have caused his death by electrocution. He was called before the preliminary Inquiry Committee to probe into the matter on 22-9-1994. A show- cause notice was issued to him on 11-11-1994 to which he replied on 18-11-1995. Finding his reply unsatisfactory, he was imposed major penalty of dismissal from service on 28-11-1995. According to the appellant he submitted his departmental appeal to the Chief Engineer on 27-12-1995.
Obtaining no positive response from the respondent-department he preferred this appeal before the Tribunal with the prayer that the impugned order may be set aside with all consequential benefits.
2. Pleading the case of the appellant the learned counsel submitted that the appellant was an active worker of the Union, therefore, he was involved in the incident. However, he was in no way responsible for the incident. Had it been deliberate it would have also caused his death by way of electrocution. From it he concluded that it was an incidental rather than intentional. Under Rule 2.5(iv) of WAPDA (E&D) Rules, 1978, wilful damage is a misconduct. Since it was not wilful, therefore, it could not be termed as crime. He alleged that the L.T. Line was illegally allowed to pass over the yard under which the available material was kept specially when the cranes are usually parked and operated. The boom could touch these live lines at any time. In any way he pleaded that the incident did not amount to any misconduct in itself as per provisions of E&D Rules. Moreover, the stores should not have been kept below the H.T. Cable. He further alleged that the appellant was not associated in the inquiry which violated the rules and as such rendered its results illegal. He, therefore, prayed that the impugned order might be set aside and the appellant be reinstated into service with all consequential benefits.
3. The comments have been filed on behalf of the respondents wherein two main legal issues have been raised:-- "(1) That no departmental appeal was filed by the appellant which renders the appeal incompetent.
(2) The appeal was barred by time as the impugned order was passed on 28-11-1995 and the present appeal has been filed before this Tribunal on 4-4-1996."
' Besides these it has been denied if at all the appellant indulged in political activities and it has been stressed that the appellant committed gross negligence and also misconduct thereby causing a loss to the Authority to the tune of Rs,1.5 crores. It has also been denied if the appellant did not know about the live line over the yard. It was clarified that at the H.T. Line existed there since long and was very much within the knowledge of the appellant. The fire took place due to his negligence. Had he peen slightly careful the incident would not have taken place especially when he knew that overhead H.T. Line was there and he used to take precautionary measures in the past while passing through this way. He ought to have been vigilant this time also. Actually he was going to park the crane, he should, therefore, have closed the boom. As regards keeping all the material below the L.T. Line there, it was argued that there is no law which prohibit to keep the material below the line as contended by the appellant. It is also denied if he was not allowed to participate in the enquiry. Moreover, the proceedings were conducted under Rule 2.5(iv) of the WAPDA Employees (E&D) Rules, 1978. The appellant approached the N.I.R.C. Who have no jurisdiction in the matter.
4. Concluding the arguments it was prayed that the appeal being incompetent as no departmental appeal was preferred by the appellant and also being time-barred be dismissed.
4-A. We have heard the parties at length and have perused the record. We find that there are three important issues to be resolved:--
(i) Whether the appeal is incompetent since no departmental appeal was preferred accordingly the respondents.
(ii) Secondly, the appeal is barred by time as the impugned order was passed on 28-11-1995 and the present appeal was preferred on 4-41996 and
(iii) Whether the action on the part of the appellant was deliberate or otherwise.
5. Now taking one by one, the contention of the respondents, was that no departmental appeal was submitted to the authority, by the appellant. When we invited, the attention of the appellant to this contention of the respondent-department, the learned counsel for the appellant produced a Registered Postal receipt issued by the Post Office which bore the date as 27-12-1995. As such, the contention of the respondent that the appellant did not submit the departmental appeal, stands rebutted. Under the circumstances, we repell, the first objection of the respondent-department.
6. Coming to the next objection that the appeal is time-barred. The departmental representation placed on the file shows, that it was submitted on 27-12-1995, whereas the impugned order was passed on 28-11-1995. This clearly reveals, that the appellant submitted departmental appeal within the stipulated period of 30 days. The appellant submitted his service appeal to the Tribunal, on 4-4-1996. This again appears to be in time. In view of this, the claim of the respondents that, the appellant's service appeal is time-barred stands controverted, hence repealed.
7. Now coming to the last point, i,e, the intention of the appellant to have caused the fire, the respondent side did not come out with any clear evidence if the action on the part of the appellant was intentional. From the facts of the case, it appears that it was incidental rather intentional. An unintentional incident causing loss to any equipment as per rules of the WAPDA is no crime.
8. In view of the above position, we feel that the appellant's action was not deliberate, therefore, not a crime. Concluding the whole discussion, we feel that the appellant did not commit any crime, hence, he should not be punished for that.
9. For the reasons recorded above the impugned order passed by the authorities is set aside, and the appellant shall be reinstated in service from the date of his dismissal and his intervening period to be treated as on duty. There shall be no order as to costs.
10. Parties be informed.