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Appeal No. 325(R) of 1984, decided on 19tfi November, 1984.

‑‑‑S. 4‑‑Limitation Act (IX of 1908), S. 5‑‑Appeal before Tribunal‑ Limitation‑‑Condonation of delay‑‑Appellant a WAPDA employee seeking remedy before Labour Court‑‑Law relating to jurisdiction of Service Tribunal in respect of WAPDA employees at relevant time not clear‑ Appeal before Tribunal filed within 3 days from date petition returned by Labour Court for want of jurisdiction‑‑belay, in circumstances, condoned.

‑‑‑ Disciplinary action‑‑Departmental enquiry‑‑Findings of guilt‑'based only on conjectures and surmises and not on consideration of any evidence‑‑Penalty Order based on such findings not sustainable.

‑‑‑ Disciplinary action‑‑Reasonable defence opportunity‑‑Prejudice‑ Non‑compliance with requirements of rules pertaining to defence opportunity‑‑Constitutes denial of reasonable opportunity‑‑Per se vitiates action‑‑Amount of prejudice to accused need not be taken into consideration in such cases‑‑WAPDA employee neither supplied copy of enquiry report nor afforded opportunity to show cause against imposition of provisionally determined penalty as per rules‑‑Entire proceedings and consequential penalty order, in circumstances, held, vitiated‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, r. 5(v)(a).

Riaz Ahmed for Appellant.

Khan Muhammad Virk for WAPDA.

Date of hearing: 6th November, 1984.

.‑‑This appeal is directed against the order, dated the 10th of September, 1982, passed by the Chairman, Area Electricity Board, WAPDA, Gujranwala, whereby penalty of removal from service was imposed upon the appellant for the acts of omission and commission allegedly committed by him as Line Superin tendent‑I.

2. A preliminary objection with regard to the limitation was raised by the learned counsel for the respondent‑Authority. It is correct that the appeal has been filed beyond the prescribed period of limitation with an application under section 5 of the Limitation Act has been made seeking condonation of delay on the ground that the delay occurred in filing the appeal is not deliberate as the appellant first submitted a petition in the Labour Court which was returned by the said Court on 11‑4‑1983 for want of jurisdiction and he (the appellant) then filed the present appeal on 14‑4‑1983. We have held in a number of earlier cases that at the relevant time the law relating to the jurisdiction of the Tribunal, was not clear and the employees of the WAPDA who were 'workmen' under the Industrial Relations Ordinance, normally used to approach the Labour Courts in such cases. Even the Labour Courts and the Labour Appellate Tribunal had been entertaining such grievance petitions and appeals. Therefore, on such consideration the delay is considered excusable by us. In the circumstances, we condone the delay.

3. The charge‑sheet, dated 14‑4‑1979 served upon the appellant contains as many as fourteen allegations which are not precise but have been vaguely stated. Sheikh Anwar Latif was appointed as an Enquiry Officer who held the enquiry and submitted his report on 13‑6‑1981, wherein the appellant has been exonerated from charges Nos. 1, 3, 5, 6, 7, 8 and 12 while finding of guilt has been recorded in respect of the remaining charges. However, a bare perusal of the enquiry report makes it quite clear that the finding of guilt in respect of respective charges is based only on conjectures and surmises and not on consideration of any evidence. We are, therefore, safe in concluding that the impugned order is based on no evidence and consequently is unsustainable.

4. Nevertheless the most significant aspect of the matter is that rule 5(v)(a) of the Wapda employees (Efficiency and Discipline) Rules, 1978, provides that on receipt of the report of the Enquiry Officer or Enquiry Committee, the competent authority shall consider the same, and if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed, and shall so inform the accused, supply him a copy of the report and call upon him to show cause within a reasonable time why the penalty proposed be not imposed. This is mandatory provision of law and the use of the word "shall", which applies both to the informing of provisionally determined penalty to the accused and to the supplying a copy of the enquiry report and calling upon him to show cause, makes it incumbent upon the competent authority to comply with it. A non‑compliance with it would amount to transgression of an obligatory rule which lays down the minimum standard comprising reasonable opportunity to be afforded to a WAPDA employee against whom action is sought to be taken. The amount of prejudice which would be caused to the person concerned, need not be taken into consideration, for non‑compliance with the rule itself would constitute denial of a reasonable opportunity which per se would vitiate the action taken. In the instant case, after completion of the enquiry, neither copy of the enquiry report was supplied to the appellant nor he was afforded any opportunity to show cause against the imposition of provisionally determined penalty which vitiated the entire proceedings and the order passed thereon.

5. In view of the foregoing we accept the appeal, set aside the impugned order and direct that the appellant shall be re‑instated into service with effect from the date of his removal from service. The period from the date of his removal till 14‑4‑1983 when the present appeal was filed, be treated as extraordinary leave without pay as the appellant has of his own accord, spent this period before a wrong forum. The period from 14‑4‑1983 onwards be treated as period spent on duty.

A.E. Appeal accepted.

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