' AKBAR M. MEMON (MEMBER).---The appellant hereinabove has challenged the office order dated 22-5-1999 whereby he was imposed penalty of dismissal from service under Pakistan WAPDA Employee (E&D) Rules 1978. The order in question is reproduced hereunder.
OFFICER ORDER ' "After due consideration of above mentioned documents, I Brig. Abu Rashid, Chief Executive, Hesco, Hyderabad being competent authority in the case under Pakistan WAPDA Employees (Efficiency and Discipline) Rules 1978, have decided to impose the penalty of "Dismissal from service" upon Mr. Abdul Sattar Sohu, the then SDO (E) Jamshoro,. Now DSO (E) Memon Hospital Hyderabad, as the carges have been established against him.
(Sd.) BRIG. (Abu Rashid), Chief Executive, H.E.S.C.O., Hyderabad."
2. Mr. Abdul Latif Ansari learned counsel for the appellant has argued that the appellant had joined the respondents in the year 1987 as Junior Engineer and his record till February, 1999 remained unblemished as during 12 years' service no adverse entry was recorded against him. The respondents had all along appreciated his diligence and good working and had issued such certificates in the year 1996 and 1997 at number of times but in the end of March, 1999 he was issued a letter of explanation under rule 5(iv) of the E&D Rules, 1978. He has contended that the appellant requested for time for going through the papers for the purpose of submitting his reply but he was not shown the papers and was forced to offer his defence reply. On 7-4-1999, he was called telephonically for personal hearing and on 9-4-1999, he was served with show-cause notice in the office on which he submitted his defence reply and again he was called for personal hearing on 19-5-1999 whereafter the impugned order was passed. He has contended that the appellant had denied the allegations in his reply dated 1-4-1999 then legally speaking when the allegations are denied then regular enquiry is the requirement of law but in the instance case summary procedure has been observed whereby it is said that the rule 5(iv) of the Pakistan WAPDA Employees E&D Rules 1978 was followed. He has contended that even rule 5(iv) ibid provides that when it is decided by the Competent Authority that is not necessary to hold enquiry then such order is to be passed in writing but in the instant case nothing of this sort was done. At the same time he has contended that the appellant has been dealt with discriminately as his two other colleagues were given the same letters of explanation but only he has been punished, whereas one of his colleagues was exonerated and the other one Akbar Durrani was awarded punishment of reduction of pay in the initial stage of BPS-17 for five years but subsequently the said punishment was converted into minor penalty of withholding of one next annual increment for a period of one year without future effect. He hascontended that since extreme punishment of dismissal from service was awarded to him there should have been regular enquiry and when no regular enquiry was conducted his appeal is liable to be allowed as there is no allegation of misappropriation against him. He has contended that the punishment is based on the report of the Director Vigilance but the respondents have lost the sight of the fact that in certain cases he had issued disconnection orders which connections were revived by the Superintending Engineer of payment of installments. In certain cases disconnection orders were issued whereafter he was transferred as such it was for his successor to have pursued the matter but this was not done. In such circumstances he has contended that keeping in view the case of his colleagues he deserves reinstatement as he had made efforts to get the amounts recovered and had taken stern action by issuing disconnection orders. In support of his contentions, he has placed reliance on 2000 SCMR 1221, 1993 SCMR 603 and 2001 PLC (C.S.) 117.
3. Mr. Abbas Haider Jaffri learned counsel for the respondents alongwith D.R. Mr. Lounge Khan Jakhrani has contended that letter of explanation was issued on the basis of report of Director Vigilance South WAPDA. He has contended that the Surveillance Team had physically checked that certain connections were running directly and that the said connections were going in arrears but no action was taken by the appellant. He has contended that on the basis of the report of the Surveillance Team it was considered by the Competent Authority not to hold regular enquiry but the appellant was given opportunity to explain his case and after affording him chance of personal hearing twice and after issuance of show-cause notice, the impugned order was passed. He has contended that there is no question of discrimination as the punishment which was imposed on the appellant was on the basis of the period which he served in capacity of SDO Jamshoto, whereas the one who was exonerated had put in service hardly 2 months and 19 days. He has contended that if the appellant's work was unblemished till February, 1999, he was issued letters of appreciation but when he was found to be lethargic in the performance of his duty whereby he caused loss to the Department he was imposed penalty of dismissal from service, as such, there is no illegality or infirmity in the order, therefore, the order is liable to be sustained and the appeal is liable to be dismissed.
4. Mr. Abdul Latif Ansari learned counsel for the appellant in reply has contended that the respondents have followed wrong procedure particularly when the allegations were denied which necessitated holding of full-fledged enquiry but, this has not been done and purely a summary method had been adopted which is in violation of the principles of natural justice.
5. After hearing the arguments of learned counsel appearing for theparties, we have gone through the appeal file and so also the authorities cited by learned counsel for the appellant.
6. Admittedly the Surveillance Team observed the acts of omission and commission on the part of different Sub-Divisional Officers including the present appellant on which all of them were issued letters of explanation on 7/8-3-1999. The appellant while giving his reply had denied the, allegations and had submitted that two connections standing in the name of Messrs Progressive Farms were got disconnected, but the SE(II) had revived the connection on the application of the Manager of the said Farms by asking the consumer to the pay the balance in four instalments. In another case of Muhammad Hashim he had issued disconnection order which could not be properly pursued on account of his transfer on 24-8-1998 meaning thereby that the appellant had denied the allegation levelled against him in the letter of explanation, then too, he was called for personal hearing, whereafter he was imposed penalty of dismissal from service without holding proper enquiry. The respondents have taken stand that the punishment was according to rule 5(iv)
(a) and (b) of Pakistan WAPDA Employees (Efficiency & Discipline) Rules 1978, but following the rule of law laid down by Hon'ble Supreme Court in a case of Province of Punjab v. Muhammad Siddique Khan reported in 2000 SCMR 1321 it was held:-- "--Art.212(3).---Dismissal from service---Regular inquiry not held---Service Tribunal had rightly concluded that dismissal of civil servant from service and subsequent reduction in punishment were violative of dictum laid down by Supreme Court in the case of Lal Muhammad and another 1980 SCMR 850 and thus both the orders were set aside---Petition for leave to appeal filed by the Department against the judgment of Service Tribunal being without merit, was dismissed in circumstances."
Admittedly no regular enquiry was conducted in this case, but in case of others against whom similar allegations were levelled were dealt with leniently meaning thereby that one of them was exonerated and the other was imposed penalty of reduction of pay to the initial stage of BPS-17 of 5 years which was later on converted into minor penalty of withholding one next annual increment for a period of one year without future effect. We are confident of the fact that the respondents have taken a plea that these two employees had served for a lessor period in comparison to the present appellant, but the appellant had denied the allegations by quoting certain instances, as such, in our view the punishment is too harsh. The proper course for the respondents was to have held a regular enquiry so that whatever was stated by the appellant in his reply should have been taken into consideration and thereafter if he was found to be guilty of the charge then of course proper penalty would have been imposed upon him. In such circumstances, it would be better to remand the case for holding appropriate enquiry so that, the true facts be unearthed.
7. As a result of the above, we set aside the impugned order dated 22-5-1999 and direct the respondents to reinstate the appellant on the same position from which he was dismissed from service and to hold fresh enquiry on the same allegations within four months from today. The question of back-benefits would depend on the report of the enquiry. In case enquiry is not conducted and completed within four months as directed above the appellant would be entitled to all back-benefits.
7-A. In view of the above observation appeal in hand stands disposed of with no orders as to costs.
Parties be informed accordingly. accordingly.