' The facts giving rise to the present departmental appeal, briefly stated, are that appellant Muhammad Ayub Khan was a stenographer in the Court of learned District and Sessions Judge, Mardan. On 27-9-2001 he moved an application for his retirement with effect from 1-10-2001, before the learned District and Sessions Judge, Mardan. Even before the issuance of formal order of his retirement, the appellant submitted his charge relinquishment report. The absence of appellant on 1-10-2001 was reported by the learned Senior Civil Judge, Mardan, to whom the appellant was transferred from the Court of Additional District and Sessions Judge, Mardan vide office order, dated 25-9-2001. The learned District and Sessions Judge, Mardan vide order dated 2-10-2001 suspended the services of the appellant with immediate effect with the directions to be present in the office during his suspension period. The appellant did not report for duty. The learned District and Sessions Judge vide letter dated 27-10-2001 addressed to the Accounts Officer, Mardan directed for the stoppage of his salary. The failure of the appellant to attend the office obliged the learned District and Sessions Judge to issue notice to him through publication in daily "Mashriq'
Peshawar dated 23-11-2001 directing him to attend the office within seven days of the publication.
The continued absence of the appellant from office ultimately resulted in passing of the impugned order of termination by the learned District and Sessions Judge, Mardan on 7-12-2001. Hence the present appeal.
2. The main thrust of the learned counsel for the appellant was on the legal plank. He contended that the impugned termination is bad in the eye of the law as it was not permissible to proceed against a Government Servant in a summary manner without adopting the procedure provided under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. Reiterating his contention, the learned counsel submitted that under the service law, the District and Sessions Judge who is an authority cannot assume the powers of the authorised officer. It was next contended that his absence for a single day on 1-10-2001 would not justify imposing major penalty of removal from service without affording him opportunity of hearing.
3. I have considered the submissions advanced by the learned counsel and have also gone through the record/comments furnished by the learned District and Sessions Judge, Mardan.
4. The definition of 'authority' and 'authorised officer' is provided in rule 2(1)(b) and (c) of the N.- W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. 'Authorised Officer' is defined as an officer authorised by the authority to perform the functions of the authorised officer under these rules. Rule 5 (ibid) prescribes the procedure for initiating disciplinary action against a defaulting Government servant. Where a Government servant is accused of misconduct, corruption etc., it is the authorised officer, appointed by the authority, who has to, with the approval of the authority suspend him. The Authorised Officer shall also decide whether in the facts of the case or in the interest of justice, an inquiry is to be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure prescribed by rule 6 (ibid) is to be followed. If the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall by order in writing inform the accused Government servant of the action proposed to be taken against him and the grounds of such action shall also be communicated to him. It is next required of the Authorised Officer to give him show-cause notice. However, no such notice shall be given when the authority is satisfied that in the interest of security of Pakistan it is not expedient to give show-cause notice. On the receipt of the explanation of the accused, it is again the authorised officer who is to determine whether the charges have been proved. If it is proposed to impose a minor penalty, he shall pass order accordingly and if it is proposed to impose major penalty, he shall forward the case alongwith the record i,e, charge-sheet, statement of allegations, explanation of accused, findings of Inquiry Officer/Committee if appointed and his own recommendations regarding the penalty to be imposed, to the authority. The authority shall then pass such order as it may deem proper.
5. Admittedly the procedure prescribed above has not been adopted in the instant case. The appellant has been subjected to major penalty without holding any inquiry or affording him any opportunity to explain his absence which is not only violative of the prescribed rules but also is against the principles of natural justice. The learned District and Sessions Judge, Mardan has passed the impugned order against the scheme provided in rule 5 of the Rules (ibid). It was required of him to have appointed authorised officer and directed him to proceed against the appellant in accordance with law. In identical situation, the august Supreme Court of Pakistan in the case of Province of Punjab v. Muhammad Safdar (1980 SCMR 850) dismissed the appeal of the department challenging the order of Services Tribunal wherein it was held that major penalty could not have been awarded to the respondent/Government servant without holding regular inquiry provided under the Rules. Similar view was taken by august Supreme Court in the case of Chairman, Area Electricity Board WAPDA Peshawar and 3 others v. Jehangir Khan (1999 SCMR 841(c)) and Rashid Mehmood v. Additional Inspector-General of Police and 2 others (2002 SCMR 57(b)).
6. It is also settled by now that the 'authority' cannot assume the powers of 'authorised officer'. In this context reliance may be placed on Murid Hussain v. Divisional Forest Officer Dera Ghazi Khan and others (1997 PLC (C.S.) 657), the Postmaster General Southern, Punjab Lahore and others v.
Ahmad Nadeem Bhatti (1999 SCMR 1311), Sh. Muhammad Sharif Akhtar v. Chief Engineer/Chairman, Area Electricity Board, WAPDA, Lahore and 2 others (1992 PLC (C.S.) 503), Yousuf Jamal v. Director Food Punjab, Lahore (1992 PLC (C.S.) 1055) and Zarar Khan v. Government of Sindh and others (PLD 1980 SC 310).
7. It has also been the consistent view of the august Supreme Court that the punishment of removal of a Government Servant for misconduct is too harsh. In the case of the Commandant, 502, EME Central Workshop, Rawalpindi and others v. No,M-E-19862 LDC Ayub Hussain (1997 SCMR 1471), the august Supreme Court of Pakistan while upholding the judgment of Service Tribunal, partly allowing the appeal of the respondent employee by converting the punishment of removal from service to that of reduction to three lower stages in his time scale for a period of three years, was appreciated and the order of Service Tribunal was held to be just and fair. As the merits of the case were not seriously argued, therefore, I also restrain from dilating upon the same.
8. Consequent upon what has been discussed above, I allow this appeal, set aside the impugned order of termination and declare the appellant to have been retired from service from 1-10-2001.