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Appeal No. 156 of 1981, decided on 5th June, 1984.

‑‑ Rr. 2 (1) &(4), 5, 6, 7 & 8‑Disciplinary proceedings‑Clear cut demarcation of powers of "Authority" and "Authorised Officer"‑ Userpation of any power vesting in other renders whole proceedings nullity in eye of law‑Authority exercising powers of Authorised Officer in respect of (1) appointment of Enquiry Officer, (2) Enquiry Officer submitting report to Authority and Authority itself conclud ing that charges stood established and (3) Authority itself taking decision of imposing major penalty‑Proceedings having been taken in contravention of rules, in circumstances, held, unlawful and resultant penalty order bad in law‑Service Tribunal setting aside impugned penalty order of reduction in rank and recovery of amount of alleged loss‑Appellant having died in meanwhile Service Tribunal, in circumstances, directing payment of resultant dues to legal heirs of appellant‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S. 4.

Kh. Muhammad Saeed for Appellant.

Rafique Mahmood Khan for Respondent‑Government.

Date of institution : 2nd May, 1981.

‑ The appellant has challenged the Government order, dated 4th December, 1980 under section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975, whereby he has been reverted to the post of S. D. O. and fined Rs. 92,750.

2. By virtue of this appeal the appellant prays for setting aside the impugned order and restoration to his substantive post of Executive Engineer.

Briefly, the facts leading to this appeal are that the appellant was performing the duties of Executive Engineer (Design) when a charge‑sheet was issued to him on 10th April, 1980 by the Chief Engineer P. W. D. A. K. Government, Muzaffarabad. This charge‑sheet is Annexure 'A' and the appellant was directed to submit his written defence to the Enquiry Officer, appointed, vide Government Order No. S. & G. A. D./870‑77/80, dated 10th March, 1980. The appellant complied with these orders and submitted his reply on 24th April, 1980 and 22nd September, 1980, vide Annexure B./1.' The appellant denied the charges ‑and the witnesses examined by the Enquiry Officer also supported his version. The report of the said Enquiry Officer was not made available to him and the impugned order Annexure 'C' was based on this report.

The appellant filed a review petition (Annexure D') before the Chief Executive, but the same was not decided till the appeal was filed in this Tribunal. The appellant has challenged the impugned order (Annexure 'C') on many grounds.

The main grounds of the appeal are that the Enquiry Officer appointed by the respondent was not competent to be appointed as such, so far the case of the appellant is concerned. The Enquiry Officer without any proof framed as adverse opinion against the appellant. All the witnesses examined supported the appellant's version.

That no show‑cause notice was issued either by the Enquiry Officer before submitting his report or by the respondent, before accepting the report of the Enquiry Officer. This action by the Enquiry Officer and the respondent amounts to unheard/condemnation. The impugned order is quite evasive and is only a telegraphic order. As such cannot be called a just decision. In the case of appellant an arbitrary and unguided procedure has been followed, and the impugned order is liable to be set aside.

Since the Enquiry Officer was not a technical man, who sought the technical advice from a person who was responsible to form adverse opinion against the appellant without getting any explanation. The report submitted by the Enquiry Officer is based on surmises and presumptions. The procedure prescribed by sub‑rule (2) of rule 6 of the Efficiency and Discipline Rules has not been followed and as such all the proceedings are null and void. Similarly the provisions of sub‑rules (7) and (8) of Rule 7 of Efficiency and Discipline Rules, 1977 have not been followed, and so the punishment of major penalty imposed on the appellant cannot be sustained. Finally the appellant prays for setting aside the impugned order (Annexure C') and declaring the same null and void against the rights of the appellant. In this written statement the Additional Advocate General on behalf of the respondent has supported the impugned order. Before proceeding with the other aspects of the appeal, we refer to the following charge‑sheet (Annexure A') served on the appellant.

Office of the Chief Engineer, P. W. D.

Azad Government of the State of J & K,

Muzaffarabad.

No. C. E./3522/P. W. D./80, dated 10th April, 1980.

To

Mr. Muhammad Bashir Jafferi,

Executive Engineer, Design,

Office of the Chief Engineer, P. W. D.,

Muzaffarabad.

Subject : Charge‑sheet (Construction of Ain Pana) Bridge at R'kote

As a result of preliminary enquiry relating to the work Construction of suspension bridge at Ain Pana R'Kote. You, Mr. Muhammad Bashir Jafferi, as X. E. N., P. W. D. R'Kote Division have been found prima facie guilty of the following charges. Accordingly this charge‑sheet is served to you with the orders of the competent authority :‑

Charge No. 1 You as Executive Engineer, sent the tenders of work Construction of suspension Bridge at Ain Pana' vide No: 6785, dated 22nd December, 1978 to S. E.'s Office recommending allotment of the work to S. M. Farooq Khan Contractor. The tendered rates recommend ed for approval were higher than the then prevailing rates for work of similar or more difficult nature being executed through P. W. D. in Poonch District. The S. E.'s Office, vide No. 8553‑54, dated 24th December, 1978 returned the tenders unapproved because of high rates and directed you to send tenders for approval in case tender rates are reasonable or re-tender the work at short notice. You again referred the case to S. E.'s Office, vide No. 5875, dated 28th December, 1978 for approval, after obtaining counter‑offer rates from contractor for sometimes, although rates for para. D. of recommended tender were still high, S. E.'s Office issued approval of tender for Parts A, B and C only. So you tried to allot the work to the contractor at high rates to give undue benefit to the contractor at the expense of loss to the Government.

Charge No. 2: You as Executive Engineer, R'Kote Division after obtaining approval of S.E., P.W.D. Muzaffrabad, allotted the work 'Construction of suspension Bridge at Ain Pana' to S. M. Farooq Khan Contractor, vide work order contained the quantities rates of only the work of main bridge comprising of following :‑

(a) Towers, Anchors, abutments.

(b) Decking.

(c) Fixing of Bridge.

However you allowed the contractor to carry out the constructional work on the approach road to the bridge, although this work was not allot ted to the contractor since it was not included in the work order. In doing so you made a deliberate attempt to give undue benefit to the contractor and to cause loss to the Government.

Charge No. 3: You allowed unauthorised payment of Rs. 92,750 to S. M. Farooq Khan, contractor during June, 1979, against the work of construction of approach road although this work was not included in the work order of work 'Construction of suspension bridge at Ain Pana" "allotted to S. M. Farooq and allowed unauthorised payments and cause loss to Government.

You are required to submit your written defence to the above charges within a period of 14 days from the receipt of this charge‑sheet, to the Enquiry Officer appointed, vide Government Order No. S. & G. A. D./ 870‑77/80, dated 18th March, 1980 stating also if you want to be heard in person.

Sd/‑

Chief Engineer P. W. D.

The appellant submitted the following written defence to the charge. sheet. The same is Annexures 'B' and B/1'. In order to appreciate the nature of the charges and the defence of the appellant, we reproduce Annexures 'B' and 'B/1' for convenience and reference :‑

"The tendered rates recommended for approval were higher than the then prevailing rates for work of similar or more difficult nature being executed through Public Works Department, in Poonch District."

The acceptance of tenders in parts is not justified. As found guilty by the Enquiry Officer, the appellants defence in Annexures 'B' B/1' Review Petition D, remained the same. He through out maintained that he has not committed any violation of the rules and the payment made to the contractor was within the knowledge of the Department and the same was made on the verbal and telephonic orders of S. Engineer.

Besides the above defence, the appellant examined Mr. S. D. Katal S. O. Raja Muhammad Nazir Senior Clerk, Abdul Hafiz Naqsha Nawis, S. M. Farooq Khan Contractor, Suleman Khan Contractor and he also appeared as a witness. In rebuttal of his evidence, the learned Additional Advocate‑General, counsel for the respondent examined Muhammad Tlayas Suleria, Chief Engineer, P. W. D. The witnesses as examined by the parties are also relevant for ascertaining the real position of the charges levelled against the appellant.

In order to appreciate the evidence as produced by the parties, we are of the view that pleadings of the parties are also relevant for ascertain ing the real controversy between the parties in this appeal. Firstly we refer to the evidence of the appellant who has deposed that the Ain Pana. Bridge was sanctioned under the scheme for an amount of Rs. 9,18,000 Administrative sanction of the Government was issued under No. Rev./ P. W. D./D. 421/900/79, dated 19th March, 1979. The same is shown as Exh. A/D/2 P. C.‑1. Tenders were invited properly by the department and the relevant papers were submitted to XEN for approval and technical sanction, vide Exh. AD/B. This work of the bridge consisted of 5 parts. Many contractors offered their tenders regarding the construc tion of this bridge. The S. E. sanctioned the tender and work order, vide Exh. AD/7, dated 25th January, 1979 was issued to the contractor and the second part of approach road was deleted from the tender. After receiving the work order the contractor approached S. E. at M'abad with an application Exh. A. D./8 where the S. E. recorded the following order, vide Exh. A. D./9.

In view of this order the contractor was asked to submit counter offer for approach road to the Ain Pana Bridge. The contractor hesitated to reduce his rates and on 12th March, 1979 he submitted counter‑offer, vide Exh. A. D.i10 and the same was submitted to S. E. with a detailed report A. D./11 and in the meanwhile the contractor visited S. E. in his office at Muzaffarabad. The S. E., vide No. 1985, dated 24th March, 1979 asked the appellant for submitting estimates of the approach road and also directed‑the contractor to work on spot, vide letter A. D./12. The direction Exh. A. A./3 as issued by the S. E. authorised the contractor to work on the approach road without work order from the appellant, the contractor told to the appellant that he has been permitted by the S. E. at Muzaffarabad. This matter was brought to the notice of S.E. and the appellant was told, vide Exh. A. E./1 that after attaching the counter‑offer with the total expenditure of the bridge the excess comes within 15% and the said matter was also brought to the notice of Chief Engineer. Pro gress report about the work on this road was being submitted to S. E. regularly and the said report Exh. A. E./1 was signed by the S. E. and in April, 1979 sent to Chief Engineer P. W . D Muzaffarabad.

In. May, 1979 the S. E. was on tour to R'kote where he was told about the written sanction of the construction of approach road, who promised to issue the same on his return to Headquarter. The written sanction was not issued and the appellant issued notice Exh. A. D./14 to the contractor directing him to concentrate on the work of bridge only and a copy of the same was forwarded to S. E. In the meanwhile according to the counter‑offer of the contractor (S. Muhammad Farooq Khan) estimate of the road Exh. A. D./13 was sent to S. E., M'abad who on 23rd June, 1979, vide Exh. A. D./17 directed to submit estimate of 12 Ft. wide road. In first week of June, 1979 the contractor demanded payment of this road also. The appellant refused payment on the ground that written work order was not produced and no payment was made to the contractor who approached the President, A. K. Government, vide application Exb. A. D./13 who directed the Chief Engineer for immediate action. S. E. P. W. D., M'abad forwarded this application to the appellant for his comments who, vide Exh. A. D /16 made it clear to the department that the estimate of the approach road has already been submitted and he requested for sanction of the rates so that work order of the approach road could be issued in favour of the contractor. 30th June, 1979 brought this matter to a new stage i.e. the Chief Engineer on the night asked on telephone from the appellant about the non‑payment of bills of the approach road to the contractor and the appellant told to the Chief Engineer that written sanc tion from S. E. was not available and for that reason the appellant did not make any payment of road to the contractor. After short while the S. E. on telephone instructed the appellant to make payments of the approach road according to counter‑offer to the contractor. At that time contractors and officers and some respectable persons of the Aiaqa namely S. M. Latif Khan, S. Janat Hussain Khan, Sardar Muhammad Sarwar Khan, S. Said Muhammad Khan, Muhammad Nazir Khan, Abdul Hussain Shah, District Accounts Officer, Abdul Majeed Katal Accountant etc. were present in the office of the appellant. The contractor was paid for the approach road and these payments were brought to the notice of Accountant‑General, Chief Engineer, and S. E., M'abad in the shape of monthly accounts of the office of Executive Engineer, Rawalakot. Besides, at the time of forwarding the estimate of approach road to the S. E., vide No. 5038, dated 4th August, 1979 i.e. Exh. A. D./17 the S. E. was informed that the contractor has been partly paid for the road for the work done according to counter‑offers in June, 1979. This shows that payment of the approach road to the contractor was made by the orders of the S. E, and in the meanwhile he was transferred (appellant to M'abad). Had the department considered this payment irregular they were free to recover this amount from the contractor. Nothing like that was done and subsequent payment of 4/5 lacs were made to the contractor by the P. W. D. After the lapse of 6 months the S. E. submitted report against the appellant, vide Exh. A. E,/I and as a result of that the appellant was served with charge‑sheet on 10th April, 1980. The Government appointed S. Hamid Ullah Klan as Enquiry Officer who appointed S. E. as Technical Advisor for completion of enquiry. The relevant order Exh. A. A./5 indicates that the appellant was charge‑sheeted on the report of S. E. and that resulted in inquiry against the appellant. The enquiry officer gave preference to the opinion of the S. E. During this inquiry, the Inquiry Officer had referred the matter of partial sanction of the tender to the Accountant‑General, vide Exh. A.14 who bad opined acceptance of tenders in parts is not justified. In view of the above facts and circum stances (as deposed by the appellant) and the statement of the witnesses recorded by the Enquiry Officer the appellant has been punished with major penalty and he approached the President, A. K. Government in the form of Review Petition. The same petition was rejected by the President and the Enquiry Officer, refused to supply him copies of the enquiry report on the ground that the report was a secret document. In P. W. D. there are many examples where S. E. after deducting certain items issued partial sanctions for construction work and the contractors were paid accordingly by the appellant. In this connection the appellant has referred to the construction of Staff Colony in Kotli where the S. E. after deduct ing certain items issued work order to the contractors and these contractors were paid for the additional work done by them without any work order from the authorities. Many works were executed by the Department, through contractors without tenders and they were paid accordingly. An other example of Girls College Idgah record (was cited by the appellant where the contractor was paid for the compound wall and this work was done by the contractor without any work order. The said bridge Ain Pana is basically jeepable and its construction without approach road would have been useless.

In reply to the cross‑examination of respondent's counsel the evidence of the appellant makes it clear that the he made the payment to the contractor on the telephonic order of higher authorities of his department. It is also deposed and admitted by him that written orders for payment of the bills were not produced by the contractor and the work done by the contractor on the approach road was fully known to the department. At this stage of appreciation of the evidence of the parties, we are of the opinion that the evidence of appellant and the respondent's witnesses Mr. Muhammad Ilyas Suleria the then S. E. and now Chief Engineer, of P. W. D. is material for the disposal of this appeal. No doubt appellant has examined S. M. Farooq Khan Contractor, S. Suleman Khan, Mr. Katal Accountant, Abdul Hafiz, Raja Muhammad Niaz and S. D. Katal S. O. in support of his contentions. The contractors Mr. Farooq and Suleman Khan have revealed the story of tenders and the construction of the bridge and approach road and their efforts for getting payment and work order from the concerned authorities. Other witnesses of the appel lant except S. D. Katal are not important witnesses on the ground that the appellant has himself deposed that the payment were made to the contractor on the telephonic orders of S. E. confining ourselves to the testimony of the appellant and the Chief Engineer, P. W. D. the matter is more clear that the question of construction of approach road without work order from P. W. D. was fully known to the concerned authorities. The contractor and his father approached the department for work order of the approach road because they needed this road for their own conveni ence. Common sense also demands construction of approach road with the bridge and bridge with approach road are part and parcel of the tender notice. The Accountant‑General, A. K. Government has also disapproved the bifurcation of tender by the authorities of P. W. D. From the evidence of the parties we have gathered that the P. W. D. authorities somehow or other failed to stop the contractor from constructing the approach road without work order. It is also admitted fact that the authorities of the department, directly and indirectly encouraged the contractor to continue with the work of the bridge and approach road. The conduct of the contractor and. the P. W. D. authorities shows that the appellant was directed to get counter‑offer from the contractor and the same was done by the appellant and the contractor. The construction of road by the contractor was not a secret mission and we again confine ourselves to the facts leading to the payment of bills to the contractor. The Chief Engineer of P. W. D. has admitted his telephonic talks with the appellant and his other subordinates in the department, but he has denied any order on telephone to the appellant for making payment to the contractor for approach road on 30th June, 1979 (in the night). This evidence of the appellant and Chief Engineer leads us to conclude that the appellant made payments for work done on the approach road without written orders of S. E. and it is also admitted that this fact was brought to the notice of S. E., Chief Engineer. and Accountant‑General, vide monthly statement of the office of the appellant. Besides we take notice of the fact that the contractor was paid heavy amounts by the department after 30th June, 1979, when payment for work done on the approach road was made to the contractor. In other places of Azad Kashmir the other contractors have also been paid for the work done by them without any work order from the authorities, rather additional work done or executed by the contractor has also been accepted for payments by the authorities of P. W. D. What remains for determination is whether the payment made by the appellant to the contractor was regular or not We shall give our opinion at the proper stage after referring to the arguments of the parties counsel.

The learned counsel for appellant contends that appointment of S. Hamid Ullah Khan D. I‑G. (Police Department) as an Inquiry Officer by the respondent (Government) is clear violation of Efficiency and Discipline Rules, 1977. The appellant being Grade 18 officer of the P. W. D. department and according to classification the authorised officer, in his case was Chief Engineer and Chief Executive was the authority to decide the fate of the appellant. The enquiry officer then appointed Muhammad Ilyas Suleria the then S. E., and (now Chief Engineer) as Technical Advisor for this enquiry against the appellant and this also has prejudiced the appellant and is violative of Efficiency and Discipline Rules. This is also clear on the ground that the charge‑sheet Annexure A' deals with the powers and duties of S. E. and the appellant regarding the construc tion of Ain Pana Bridge in Poonch District. His contention is that appoint ment of Enquiry Officer and Technical Advisor being violative of Efficiency and Discipline Rules, and the report of Enquiry Officer against the appel lant cannot be read against the appellant. In support of this contention he has relied on P L D 1978 S C (A J & K) 37 ; P L D 1980 Lah. 337, 338. Besides the appellant has put in affidavit, dated 2nd May, 1981 in support of his appeal and the contents of the same affidavit have been denied by the Government, but no counter‑affidavit has been put in by the Government, and in absence of that the affidavit of the appellant stands proved. In this connection he has cited P L D 1966 (W. P.) 16 (F) Affidavit ; P L D 1961 Lah. 439; P L D 1961 S C 178 ; P L D 1968 Kar. 422 contending that the affidavit of the appellant stands un challenged.

It is on record that a review petition Annexure D' has been turned down by the respondent and the order recorded therein has been challenged on many grounds. The main ground of attack is with regard to telegraphic order recorded about the appellant. According to appellant's counsel the major penalty awarded to the appellant is not warranted by the facts and circumstances of the case. The record of this case has not been thoroughly taken into consideration by higher authorities and great injustice has been done to his client. Citation relied on' regarding tele graphic orders and its effect is P L D 1978 Lah. 1966.

S. Rafique Mahmood Khan, Additional Advocate‑General counsel for the respondent has referred to the enquiry report Exh. P. A. and relevant record m this case. With the assistance of parties counsel, we have also carefully gone through this record. The respondent's counsel contends that the charges are proved against the appellant and the Enquiry Officer has conducted enquiry as ordered by the Government. The record shows that the appellant has not been prejudiced. According to him the appel lant has miserably failed to justify the payment of amount for approach road to the contractor. The appellant has relied on hearsay evidence and the question of punishment is to be considered by the Tribunal keeping in view the circumstances of each and every case.

Finally, the appellant's counsel has argued that the penalty of rever sion and recovery of amount awarded to the appellant is very harsh and uncalled for and the Tribunal is competent to pass proper order under section 5 of Azad Jammu and Kashmir Service Tribunals Act of 1975. In reply to this argument the respondent's counsel contends that the Tribunal is competent to consider the major penalties as provided by the Efficiency and Discipline Rules, 1977. The criteria is that the same position is dependent upon facts and circumstances of each and every case. Since we consider this appeal as a whole and we come to the conclusion that the enquiry conducted by S. Hamid Ullah Khan has not prejudiced the appellant on the ground that the enquiry officer has provided full opportunity to the appellant for cross‑examining of the witnesses and for putting io his defence. Mr. Muhammad Ilyas Suleria S. E. and the then S. E. has very frankly admitted that the appellant was not directed to make payment of the approach road to the contractor and that the matter of work on approach road by the contractor was not a secret for the P. W. D.

Coming to the charges levelled against the appellant, vide Annexare A' the charges Nos. 1 and 2 are interlinked with each other and what we gather from the record and arguments of the parties counsel is that the construction of the bridge was based on tender notice as approved by the S. E. on the recommendations of the appellant. Charges Nos. 1 and 2 deal with the powers of S. E. and Executive Engineer and no misconduct and carelessness or negligence is proved against the appellant.

We concentrate on charge No. 3 and again refer to the material avail able from the record of this case. The appellant is. a young and qualified Officer of P. W. D. but the payment of bill for construction of approach road to the contractor is irregular. The appellant in our opinion was imprudent in making this payment to the contractor without the written orders of S. E., Chief Engineer and other higher authorities to the concerned department. It is also admitted fact that the contractor has been paid other bills for the work done by him at the approach road with the bridge, and mainly after the transfer of the appellant from R'Kot to Muzaffarabad (XEN Design).

The major penalty of reversion and recovery of amount is unduly severe and we alter this punishment into censure only.

For the foregoing reasons we accept the appeal. set aside the impugned order (Annexure C') and direct that the appellant shall be treated as never having been reverted from Grade 18 to Grade 17 ;

No order as to costs.

MR. JUSTICE SARDAR MUHAMMAD ASHRAP KHAN (CHAIRMAN)

.‑I have read the judgment written by the learned Member of the Tribu nal, in which he has proposed the alteration of the penalty of reduction in rank imposed on the appellant by the Government‑respondent, to that of censure only but to me the question of any such alteration does not arise because, in my view, the whole disciplinary proceedings on the basis of which the order impugned in this appeal has proceeded were vitiated on account of have been taken in violation of the provisions of Azad Jammu and Kashmir Efficiency and Disciplinary Rules, 1977 (hereinafter referred to as Efficiency and Disciplinary Rules) which govern the disciplinary action against a civil servant. For the sake of reference it appears necessary to reproduce the relevant portions of sections 5, 6, 7 and 8 of the above rules which read as follow :‑

Section 5 (1).‑If, on the basis of its own knowledge or information placed before it, the authority is of the opinion that there are sufficient grounds for proceeding against a civil servant, or where in a case in which Anti‑Corruption Committee/Committees set up by the Government, from time to time has decided to take departmental action it shall direct the authorised officer to proceed against such civil servant.

Section 6 (2).‑Within three days of the receipt of the direction from the authority under rule 5, or within such further period as may be allowed by the authority at the written request of the authorised officer, the "authorised officer shall decide whether in the light of the facts of the case or in the interest of justice, an inquiry is necessary.

Section 6 (5).‑If under sub‑rule (2) the authorised officer considers that an inquiry is necessary, he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be of a rank senior to that of the accused or if there are more than one accused senior to all the accused.

Section 6 (6).‑Where an Inquiry Officer or an Inquiry Committee is appointed under sub‑rule (5), the authorised officer shall simultaneously frame a charge and communicate it to the accused together with a statement of allegations explaining the charge and other relevant circumstance which are proposed to be taken into consideration and require the accused, within a reasonable time which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence directly before the Inquiry Officer or the Inquiry Committee, as the case may be.

Section 7 (6).‑The Inquiry Officer or the Inquiry Committee, as the case may be shall complete the inquiry proceedings within a period of sixty days commencing from the last date of submission of the written defence by the accused and shall within ten days of the expiry of the said period of sixty days or within such further period as may be allowed by the authorised officer, submit his or its findings and the grounds thereof to the authorised officer.

Section F (A).‑The authorised officer, on receipt of the report of the Inquiry Officer or Inquiry Committee, shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall after affording the accused an opportunity of showing cause against the action proposed pass orders accordingly. If it is proposed to impose the major penalty, he shall forward the case to the authority alongwith the charge‑sheet, a statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the Inquiry Committee, as the case may be and his own recommendations regarding the penalty to be imposed. In case it is proposed to drop the proceedings, the authorised officer shall submit the case with all relevant material/documents to the authority for appropriate orders.

Section 8.‑‑Action by the Authority. ‑In the case of any proceedings the record of which has been reported for orders under sub‑rule (4) of rule (6) of rule‑A( ) the authority may pass such orders as it deems fit but before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person either before himself or before an officer senior in rank to the accused designated for the purpose after taking into consideration the record of such personal hearing prepared by the officer so designated.

From the perusal of provisions of the rules reproduced above, it becomes quite clear that authority after giving direction to the authorised officer under rule 5 (i) of the Efficiency and Discipline Rules to initiate departmental action against the accused civil servant goes into the back ground and does not come into picture at all during the conduct of the whole of the disciplinary proceeding against such a civil servant and only re‑appears on seen in case the authorised officer proposes to impose major penalty on the civil servant being proceeded against departmentally after having found him guilty of charge levelled against him.

It is only when the record of the case of accused civil servant is submitted by the authorised officer to it that the authority is empowered to make any order as it may deem fit including the one of imposition of major penalty. As would appear from rule 6 (ii) of the Efficiency and Disciplinary rule it is only the "Authorised Officer" who has the power to decide as to whether in the light of the facts of the case or in the interest of justice, it is necessary to hold regular inquiry into the charges against the accused civil servant and under sub‑rule (5) of the above rule it is again the "Authorised Officer" who is empowered to appoint an Inquiry Officer or Inquiry Committee, as the case may be, for holding inquiry into the charges against civil servant, in case he decides that such inquiry is necessary. Similarly the duty of framing charge and communicating it to the accused civil servant alongwith the statement of allegation explaining the same is also caste upon him.

The Inquiry Officer is also required to submit his findings on the charges to the authorised officer under rule 6 (6) of the said rules Similarly, in view of the provisions of rule 7 (A) of the aforesaid rule, only the Authorised Officer has been given the powers to determine as to whether the charge levelled against the accused civil servant has been proved and to impose minor penalty on him and he is required to submit the record of the case alongwith his recommendations regarding the penalty to be imposed on the accused civil servant, to the authority only when he pro poses to impose major penalty. It is only then that the authority enjoys the powers to make any order as it may deem fit in the case of the accused civil servant after giving him an opportunity of being heard.

When the disciplinary proceedings taken in this case are examined in the light of the legal position stated above, the inescapable conclusion to which one comes is that the same have been taken in flagrant disregard of the relevant service rules as a result of which the same stand vitiated. In the case in hand, the Inquiry Officer for holding inquiry into the charges against the appellant was appointed not by authorised officer but by the authority to whom the inquiry officer had also submitted his findings on the charges against the appellant. It was again the authority and not the authorised officer which came to the conclusion that the charges against the appellant had been proved and it was also the authority which had taken the decision of imposing major penalty on the appellant. Under the law, as seen earlier, all the above functions and powers were to be perform ed and exercised by the authorised officer who in this case was the Chief Engineer according to the Notification No. S & G A D/R‑80/ S O‑1/21864‑924/79, dated 17th October, 1979 and the authority by assuming the functions and exercising the powers of the authorised officer has acted unlawfully by travelling beyond the province of his authority and jurisdiction.

A clear cut demarcation of the respective powers of the authority and the authorised officer has been made in the Efficiency and Disciplinary Rules and therefore, userpation of any power enjoyed by one by the other renders the whole disciplinary proceedings nullity in the eye of law. In this view of the matter, the disciplinary proceedings taken against the appellant were unlawful on the basis of which the impugned order could not be passed.

Moreover, the impugned order is founded on the report of the Inquiry Officer which could not be legally used for holding the appellant guilty of the charges made against him and for imposing any penalty on him as the inquiry Officer was incompetently appointed by the authority which had no power to do so under the Efficiency and Disciplinary Rules according to which the authorised officer was only competent to appoint him.

The sum total of the above discussion is that most of the proceedings in this case were taken by the incompetent authority thereby rendering them unlawful with the result that impugned order is bad in law having pro ceeded, on the basis of the disciplinary proceedings taken in contravention of the Efficiency and Discipline Rules.

For the reasons stated above, the impugned order reverting the appel lant to the post of Assistant Engineer and imposing the penalty of recovery of certain amount of loss caused to the Government by him, is set aside,

The appellant has died but he shall be deemed to have been holding the post of Executive Engineer and entitled to all the emoluments and other fringe benefits attached thereto from the date of the passing of the impugned order till his death. Now all the dues payable to the deceased‑appellant in consequence of this order shall be paid to his legal heirs.

There will be no order, as to costs.

A.E. Appeal accepted.

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