' ROSHAN ALI MANGI (MEMBER).---The appellant Amanullah was appointed as Attendant in NPS-11 in the year, 1983. Subsequently he was transferred and placed at the disposal of the respondent No,2 against the post of Line Superintendent (BPS.11) in the year 1985.
2. He received a letter of explanation on 29-2-1996, whereby he was alleged, as reproduced below:- - "(1) You have intentionally not implemented the E.R.O. No,0195/0051, dated 7-2-1995 till 11/95 of the consumer bearing A/C No,6124- 4664/01-17-B-1 for the arrears of Rs,2,490.
(2) You have demanded Rs,1,500 as illegal gratification from the consumer for non-implementation of the ERO but the bargain failed and the consumer has paid the full amount of the bill viz Rs,3,201 on 18-12-1995. After payment of arrears you implemented the ERO on 20-12-1995 when the arrears was already cleared.
(3) You have intentionally torn M.S.S. Of the meter of above said consumer with your nail from wrong side and also cut/scratched the seals with cutting plier to take revenge and put the consumer in trouble unnecessarily."
3. He made a reply to the said explanation letter, denying those allegations. Thereafter, show- cause notice was served on him on 26-6-1996, to which the appellant submitted his defence reply on 10-7-1996. Ultimately the appellant received an order, on 26-12-1996, whereby he was reverted to the post of L.M.-1 in BPS-9 for a period of two years with immediate effect.
4. Having been aggrieved by this order the appellant preferred a departmental appeal on 18-1- 1997, which was rejected probably on 5-4-1997, however, the appellant received the same on 6-5- 1997.
5. Hence this appeal.
6. The appellant has taken the following grounds:--
(a) That the impugned order is illegal and unlawful.
(b) That neither proper enquiry was conducted nor the concerned consumer was examined before the appellant.
(c) That E.R.O. Was implemented on 7-12-1995, not on 20-12-1995 as alleged by the respondents.
(d) That the allegation that the M.S.S. Was torn by the appellant is not correct.
(e) That the appellant received CP-114 for 10/95 and accordingly disconnected the material/meter on 7-12-1995 and consumer paid the arrears on 18-12-1995. This fact was not considered by the authority.
(f) That the meters were checked by the SDO(E) concerned and he directed the appellant to replace it. Accordingly he did it. However, the consumer under mala fide intention lodged the complaint against him.
(g) That under the law the authority cannot revert the appellant from the post to which he was initially appointed, to a post lower than it.
7. With these submissions it has been prayed to accept the appeal, and direct the respondents to set the impugned order aside.
8. Preliminary objections have also been filed on behalf of the respondents.
9. It has been stated that the consumer, Haji Fazal-e-Malik, had personally appeared before the respondent No,3 and lodged a complaint against the appellant. In that complaint he had alleged that the appellant had illegally disconnected his 3 Nos. Connections from his plaza on account of non-meeting his demand for payment of Rs,1,500 as illegal gratification.
10. Tracing the history of the complaint, it has been stated that the consumer was defaulter on account of non-payment of Rs,2,490 since 2/95. As such an ERO No,0195/0051 was issued on 7-2- 1995. As such he was duty bound to disconnect the supply of electricity on the same day. But the appellant pended it till 17-12-1995 i,e, after the lapse of 10 months. During that period the consumer was allowed to use the electricity free of cost. This proves that appellant was in deal with the consumer on monthly basis and the department sustained loss on this account. During 12/95 when the consumer refused to pay him Rs,1,500 the appellant disconnected the said meter. It has been pointed out that in 2/95 there was arrears of Rs,2,490 which increased to only 3,201, when the actual disconnection took place i,e, after 10 months.
11. The appellant disconnected two meters from the plaza of the same consumer detailed as under:--
(1) Meter of A/C No,6124-4661/03-17-01.
(2) Meter of A/C No,6124-4661/04-17-04.
' No arrear was outstanding against those two meters. It has been pointed out that the appellant himself has admitted that the meter at Serial No,2 was declared OK by the Laboratory.
12. As regards, the tempering of the meter of A/C 6124-4661/03-17-01, at Serial No,1 above, it is stated that said consumer was charged as per Laboratory report. However, the said consumer has challenged the same by filing a civil suit against the department and the appellant.
13. It was on complaint of the said complainant that the respondent No,3 directed the SDO ATB (Grade-18) to get the meters of the complainant in his possession and to investigate the matter.
When the said SDO went to investigate the matter, he caught the appellant red-handed tearing the bonds of the meter with his thumb nail. The said SDO further discovered that the seals of the meters were found cut as fresh and that all that was done by the appellant. This all was brought in the preliminary enquiry, copy of which was also supplied to the appellant. He did neither object it nor he demanded for any formal enquiry at that time.
14. It was under these circumstances, that the appellant was issued show-cause notice, and after examining his defence reply, the penalty of removal from service was determined. He was afforded an opportunity of personal hearing, but he could not prove his innocence. However, taking a lenient view, he was imposed a lesser penalty of reversion to a lower post for two years.
15. It has been clarified, that the appellant was tried under Rule 5(iv) and not under rule 6 of the WAPDA (E & D) Rules, 1978, under which there is no provision for formal enquiry.
16. The impugned order as such, was legal and passed only after adopting proper procedure as prescribed under the law.
17. With these submissions, it has been prayed to dismiss the appeal with costs.
18. We have heard the parties and also studied the papers, placed on the file. The perusal of the preliminary enquiry report reveals that the appellant was found 'guilty. The relevant finding reads as:-- "The involvement of Mr. Amanullah L.S.-II for asking of Rs,1,500 is confirmed, because he torn both the meter bonds with his nail and cut scratched the seals with cutting plier intentionally to put the consumer in trouble."
19. Based on the above finding, he was tried under section 5. When, the accused is tried under section 5 summarily, because the evidence is so strong that there remains no necessity to conduct the normal enquiry. The accused was issued the show-cause notice. The penalty was imposed on the basis of his defence reply. The appellant has been tried under section 5, as such, the objection of the learned counsel for the appellant that he should have been tried under section 6, is not tenable. He was also afforded the right of personal hearing. Hence the complaint that he was condemned unheard, appears groundless. It is our considered view that the appellant is rightly penalised under section 5. We do not find any legal infirmity as regards the disciplinary procedure is concerned.
20. However, the learned counsel's objection that the appellant cannot be reverted to a lower position, since he was appointed in B-11 initially, hence his reversion to B-9 would be illegal and unlawful. We tend to agree with him.
21. Under the circumstances, we amend the impugned order of reverting the appellant to a lower rank of B-9, into that of "reducing the stage to the initial pay of B-11 of appellant in time scale with cumulative effect. Ordered accordingly. No order as to costs.
22. Parties be informed.