' MUHAMMAD RAZA KHAN (MEMBER).---The appellant has been in service for WAPDA for almost 14 years. He joined as Junior Clerk and later on promoted as Senior Clerk. He was holding this appointment at various stations. On 21-12-1994 a letter of explanation was served on the appellant in connection with the installation of a three phase meter at a service station on the basis of a forged reconnection form. The appellant replied to the said notice on 31-12-1994. No further steps was allegedly taken against him and vide an order dated 4-4-1995 the respondent No, 3 imposed a major penalty of removal from service. After seeking departmental remedy, which was finally rejected on 18-6-1996 and communicated to him vide a letter dated 13-7-1996, the appellant has filed the present appeal under section 4 of the Service Tribunals Act, 1993.
2. The respondent department contested the case. Objections were filed, supported by the relevant documents. We have listened to the argument on behalf of the parties. The main objection of the appellant was that the allegations contained in the original letter of explanation pertain to a question of fact, which allegation was denied and, therefore, it was necessary for the respondent department to have held proper inquiry which was not conducted. It is an established principle that the controversial facts are to be proved against the employees by holding regular inquiry wherein the employee concerned has to be associated with full opportunity to examine the record, cross-examine the witnesses and to avail the opportunity of personal hearing for the proper explanation of the controversy. No such steps appear to have been taken in this case. The impugned order of removal from service contained a phrase that a penalty was being imposed as an ex parte action for the failure on the part of the appellant to furnish his defence reply and to appear for personal hearing. The appellant, on the other hand, alleged that the said letters asking for defence or personal hearing were never delivered to ,him nor these letters were addressed to him at the station where he was posted. The representatives of the respondent department were of the view that the appellant was served through his next officer on the basis of available address but the appellant states that he was transferred in the meanwhile to another station and no notice whatsoever was received by him at that station. Admittedly, WAPDA is one of the biggest institution in the country but it cannot be presumed that it was bigger enough to loose track of employees particularly within the range of the same Area Electricity Board. No effort appears to have been taken to serve the notices on the appellant or to get him associated with precedings of the inquiry.
The representatives of respondent department could not furnish any proof of service of any notice on the appellant directly. Thus we have to hold that the incurable defect in the procedure had occurred as the appellant was neither associated in the inquiry proceedings nor was given the final show-cause notice. He was also not served properly directing him to appear personally to explain his view point.
3. Another vital defect in the impugned order imposing of penalty of removal from service was that the appellant was working as a Senior Clerk in B-7, and admittedly the Chief Engineer was the appointing/promoting authority for the Senior Clerk. The Superintending Engineer i,e, respondent No,3 was not the competent Authority to impose major penalty of removal from service on Senior Clerk in B-7. Under the WAPDA Employees (Efficiency and Discipline) Rules, 1978, the competent Authority to impose the major penalty is the appointing authority or further higher authority but not an authority subordinate to the appointing Authority. The respondent-department was provided sufficient time by us to prove that either the respondent No, 3 was the appointing authority for the appellant in B-7 or he was so designated by any notification of WAPDA. The representatives of the respondent department admitted after consultation of record that the appointing authority for B-7 official was the Chairman, Area Electricity Board and they produced a copy of an office order dated 10-1-1975, where by certain powers were delegated to various authorities. The perusal of the said office order shows that the appointing authority for Senior Clerk by direct recruitment was the Chief Engineer or the Superintending Engineer, but the Authority competent to promote an official as Senior Clerk was the Chief Engineer only. Similarly in the next column relating to the description of the authority competent to impose major penalty, the name of the Chief Engineer and Superintending Engineer is mentioned but, since the appointing/promoting authority was the Chief Engineer only, therefore, the authority competent to impose major penalty will also be the Chief Engineer for the appellant. The Superintending Engineer can be the competent authority for direct recruits, if any. The learned counsel for the respondents argued that appellant had filed the appeal to the Chief Engineer and, therefore, he had practically considered him as the next higher authority/the appellant authority and so the penalty imposed by respondent No,3 was in order. This argument does not contain any force because the impugned order was passed by the Superintending Engineer and the appellant had no choice but to file appeal to the Chief Engineer as next higher authority. Further, If the Chief Engineer was not competent to dispose of the appeal, he was bound to refer the matter to the authority, competent to act as the appellate authority. But the addressing of the appeal to the Chairman, Area Electricity Board does not amount to confer the appellate powers on him nor does it divest him of the powers of he competent Authority to impose major penalty under WAPDA Employees (Efficiency and discipline) Rules, 1978. Thus we hodl that the respondent No,3 was not the competent Authority to impose major penalty on officials in B-7. In the light of the above observation we accept this appeal, set aside the impugned order dated 4-4- 1995 and 20-6-1996 read with letter dated 13-7-1996 and direct that the appellant may be reinstated into service forthwith. The respondent department will, however, at liberty to conduct regular inquiry on the same charge if so advised. However, if the inquiry proceedings are not completed within a period of three months, the reinstatement of the appellant will be deemed to be with all consequential benefits.
4. No order as to costs.
5. Parties be informed.