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Appeal No. 110 (R) of 1979, decided‑ on 23rd October, 1982.

‑‑R. 5 (i) (iii) & 6‑‑Dismissal‑Notice served on civil servant actually a show‑cause notice under r. 5 (1) (iii) and question of enquiry conducted by Enquiry Officer was not called for‑Enquiry Officer so appointed, collecting evidence in a rather informal manner without presence of concerned civil servant or applying mind or giving personal hearing or examining any witness‑Enquiry held, cannot be treated as enquiry according to procedure prescribed in r. 6 Findings recorded and recommendations made to Authorized Officer, held further, not legally valid and order of dismissal passed based on such findings, ultra vires of Rules and unlawful.

‑‑R. 5 (1) (iii) & 6‑De novo enquiry‑Proceedings against civil servant not found conducted according to procedure laid down in r. 5 (1) (iii) & 6‑Such proceedings declared unlawful on technical grounds‑Competent Authority, held, can proceed de novo against such civil servant on same charges against him.

M. S. Siddiqi for Appellant.'

Syed M. Shahudul Haque, State Counsel for Respondent.

Date of hearing : 14th March, 1982.

The appellant, then working as Chargeman in the Pakistan Ordnance Factory at Gadwal, was dismissed from service by order of the competent authority, with effect, from 10th February, l979, vide Memo. No. POF/5200/27/Admin/Gdl., dated 11th March, 1979, on the ground of misconduct, in the form of theft of articles from the Factory wherein he was working.

2. Prior to this order, he had been served with a notice under rule 5 (1) (iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, requiring him to explain his conduct, within 7 days, with reference to the charge preferred against him. After he had submitted his explanation, and after an Enquiry Officer had recorded his statement, cross‑examined him, independently collected other evidence relating to the alleged incident of theft committed by him, and made his report giving his findings and recommendations, the aforesaid order was passed against the appellant.

3. After the appellant had made a number of representations to the higher authorities against this order, the competent authority was pleased to convert the punishment of dismissal into removal from service. This was notified in P. O. F. Board, Wah Daily Order Part 11 No. 3705/1, dated 10th July, 1979. This was followed by a further represen tation made by him to the Chairman, P. O. F. Board Wah Cantt for re‑instatement, in reply to which he was informed by the Chief Adminis trative Officer that "his request had been considered at the appropriate level and rejected", vide P. O. F. Board No. 416/613/OF‑1/B, dated 8th August, 1979. The present appeal, which was filed against this order on 3rd September, 1979, having been admitted for hearing, came up before us on 14th March, 1982 and is being disposed of by this order.

4. The facts alleged against the appellant in the notice issued to him under rule 5 (1) (iii) of the Efficiency and Discipline Rules, were that, 'on 28th January, 1979, at 19‑00 hours, the Security Staff of the P.O.F., Gadwal conducted a search of the appellant at the main gate of the Factory, as he was leaving the premises after duty and found the following articles hidden in the tool box of his scooter: ‑

(i) Electric Bulbs 125 watt. Two

(ii) Bulb Holder (porceline) One

(iii) Electric Tube Choks 80 Watt. Two

240 V, 50 C S

(iv) Iron nails of different sizes Seers Chattanksi

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5 11

Later, the total value of these articles was assessed at Rs. 626 by the Enquiry Officer. The appellant admitted, in his reply to the notice under rule 5 (1) (Iii), that the articles were recovered from toolbox of his scooter but pleaded that they had been placed there by somebody with out his knowledge out of sheer enmity, just to entrap him falsely. He repeated this statement before the Enquiry Officer also. After the search also, he had admitted, in a statement given by him in writing, that these articles were in his possession at the alleged time and place when a search was made in the presence of the orderly officer and the Assistant Security Officer. Thus, while the recovery of the stolen articles was admitted, the commission of the theft or the receipt of stolen articles was denied.

5. So far as the notice served on the appellant goes, although it was under rule 5 (1) (iii) of the Efficiency and Discipline Rules and it did not mention the appointment of an Enquiry Officer or require the appellant to appear before him, a copy of the same was marked to an officer designated as Enquiry Officer. The notice did not also mention the punishment propo sed to be inflicted, although it did specifically mention the charge against him and the allegation on which it was based and, otherwise, met the requirements of law, as provided for in the rule mentioned. The relevant portions of this notice are reproduced below :‑

"Since Mr. A. Rafique Alam has committed an act of gross misconduct, he is called upon to submit a written explanation within 7 days from the date of receipt of this explanation to state whether he desires to be heard in person and to lead evidence iu his defence.

If no reply is received within the stipulated period it will be assumed that he has no explanation to offer and in that event action as deemed fit, will be taken against him, under the rules."

6. While the appellant, in his reply to the show‑cause notice, pleaded not guilty and requested for a hearing, he did not express a desire to lead any evidence. However, he did request that the Orderly Officer may be requested to solemnly declare, whether, at the time of the search, the tool box of the scooter was locked, or otherwise. Evidently, his sugges tion was that, the box not being locked, somebody had placed the articles in question there without his knowledge. He also stated that, in his written statement after the search, he had at first written the word "unlocked" but later scored through it and wrote locked" under pressure, the suggestion being that the first version was the correct one, namely, that the box was not locked.

7. From the report of the Enquiry. Officer and the record of the proceedings conducted by him, it appears that the Orderly Officer was not examined in the presence of the appellant.

8. At this stage, it needs to be clarified that the notice served on the appellant being actually a show‑cause notice under rule 5(1)(iii), the question of an enquiry conducted by an Enquiry Officer did not arise and, therefore the appointment of an Enquiry Officer was completely uncalled for and unnecessary. We, however, find that the officer, who was designated as, Enquiry Officer, was required not only to report on the charge preferred against the appellant but also to suggest measures for preventing the occurrence of theft in future. He, therefore, collected evidence in a rather informal manner and without the presence of the appellant. The enquiry held by him need not, therefore, be treated as an enquiry according to the procedure prescribed by rule 6 of the Efficiency and Discipline Rules. His findings also and the recommendations made by him to the Authorised Officer, to the effect that the appellant was guilty of misconduct and may be dismissed from service, are also not to be treated as relevant to the proceedings initiated against the appellant. Since the entire enquiry was irregular, any order based on it cannot be treated as a lawful order. Had the Authorised Officer applied his mind independently to the facts of the case, as originally brought to his notice, and to the explanation of the accused and had he given a hearing to him, besides examining the witnesses cited by him, the order passed on the basis of his recom mendations would have been perfectly valid and in accordance with law, in view of the provisions of rule 5 (1) (iii) and (iv). But, since, in this case, he neither applied his mind independently nor gave a hearing to the accused nor examined the only witness cited by the accused, the order passed by him has to be treated as ultra vires of the rules, and, therefore, unlawful.

9. It would also be relevant to observe that the respondent department have, in their written objections to the memorandum of appeal, taken the stand that the Authorised Officer had, to accordance with rule 5 (1) (ii), decided that an enquiry should be conducted through an Enquiry Officer and, therefore, appointed such an officer, who conducted an enquiry according to rule 6 of the Efficiency and Discipline Rules. We are amazed that such 'a claim should be made by the department, when the so‑called charge‑sheet served on the appellant makes no mention of the enquiry and only asks him to explain his conduct, while it specifically refers to rule 5 (1) (iii). But, even if it were conceded that an enquiry bad been ordered under rule 5 (1) (ii), as already mentioned, no enquiry, in accordance with the prescribed procedure, was held. Clearly, therefore, it has to be held I that neither was an enquiry conducted according to rule 6, nor the order of l dismissal passed after proper consideration, by the Authorised Officer, of the facts of the case, the explanation of the accused, and the evidence of the defence witnesses and after giving him a personal hearing according to rules. Therefore, in and, case, the impugned order was not regular and cannot) be upheld.

10. In view of the foregoing, while considering it unnecessary to discuss on merits, the charge against the accused, we allow the appeal, set aside the impugned orders, and re‑instate the appellant in service with effect from the date of his removal, with all consequential benefits. As to the arrears of pay etc. for the period he remained out of service, it is ordered that these may be paid to him only if he satisfies the concerned authority that he was not gainfully employed anywhere else during the said period.

11. No order as to costs.

Respectfully agreeing with the conclusion reached and reasons, therefore, given by my learned colleague, I would like to add, by way of clarification, that since the impugned order is being set aside by us solely on technical ground, it will be open to the relevant authority to proceed for the charge against the accused appellant in accordance with the relevant provisions of law.

M.Y.M

Appeal accepted.

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