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Appeal No.5(P) of 1984, decided on 29th January, 1985.

‑‑‑ Disciplinary action‑‑Departmental enquiry‑‑Examination of witnesses in absence of accused‑‑Amounts to denial of reasonable defence opportunity‑‑Vitiates entire proceedings and consequential penalty order.

(b) Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑

‑‑‑R. 5(v) (a)‑‑Action on receipt of enquiry report‑‑Consideration by competent authority and if he is of tentative opinion that a penalty be imposed then to (i) determine provisionally penalty to be imposed; (ii) so inform accused; (iii) supply a copy of enquiry report to accused and (iv) call upon accused to show cause within a reasonable time why penalty proposed be not imposed‑‑Provisions mandatory‑ Non‑compliance‑‑Constitutes denial of a reasonable opportunity which per se would vitiate action taken‑‑Neither copy of enquiry report supplied to accused nor opportunity given to show cause against proposed penalty‑‑Impugned penalty order of termination of service, in circum stances, held, stood vitiated hence set aside‑‑Service Tribunals Act (LXX of 1973), S.4.

(c) Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑

‑‑‑Penalties‑‑Nature of‑‑Termination of service‑‑Not a prescribed penalty‑‑Dismissal, removal or compulsory retirement from service‑‑All amount to termination of service‑‑Penalty to be imposed as mentioned in rules by making specific mention thereof‑‑Impugned order imposing penalty of "termination of service", held, vague and defective‑‑Not maintainable.

Qazi Atiqur Rehman for Appellant.

Anwar H. Mir for Respondent.

Date of hearing: 2nd January, 1985.

The appellant while posted as a Meter Reader in the office of the Sub‑Divisional Officer, Electricity, WAPDA, Topi, District Mardan, was suspended from service vide Officer Order dated 28‑3‑1982 and was thereafter served with a charge‑sheet for the allegation that he had opened the A.T.B. and reversed the meter of one Mr. Madar Khan son of Gul Khan. He submitted his reply denying the charges and pleading not guilty. Thereafter, an Enquiry Committee was appointed which conducted the enquiry and submitted its report vide memo. dated 20‑12‑1982. Vide Office Order dated 19‑1‑1983 the Superintending Engineer, Martian, holding the appellant guilty of the charges, ordered termination of his service and forfeiture of balanced pay during his suspension period. His departmental appeal was also rejected as intimated by letter dated 12‑12‑1983. He then filed the present appeal.

2. We have heard the learned counsel for the parties. The learned counsel for the appellant has assailed the impugned order on a number of grounds. He first submitted that the enquiry was not conducted by the Enquiry Committee in accordance with the prescribed procedure: in that the witnesses were not examined in the presence of the appellant and he was thus denied the opportunity to cross‑examine them. We find sufficient force in the contention. Such examination of the witnesses in the absence of the appellant would clearly amount denial to the appellant of a reasonable opportunity to defend himself, which vitiated the entire proceedings and the impugned order passed thereon.

3. Apart from the above, according to rule 5(v)(a) of the WAPDA Employees (Efficiency and Discipline) Rules, 1978, 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 mandatory provision of law makes it incumbent upon the competent authority to comply with it. A non‑compliance with it 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 a copy of the enquiry report was supplied to the appellant no he was afforded an opportunity to show cause against the imposition of provisionally determined penalty which vitiated the impugned order.

4. We have further found that the impugned order is vague ante defective as thereby the appellant was awarded a penalty of termination of his services under the Efficiency and Discipline Rules while termination of service does not find a place in the penalties prescribed under the said Rules. Of course, compulsory retirement, removal from service and dismissal from service are mentioned as penalties in the Efficiency and Discipline Rules and it is to be noted that all of them would amount to termination of service. Such being the position the competent authority should and can award only the penalties mentioned in the Efficiency and Discipline Rules by making a specific mention thereof. The impugned order thus being vague and defective also is not maintainable.

5. For the foregoing reasons, the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re‑instated into service from the date of his suspension with all consequential benefits.

6. No order as to costs.

A. E. Appeal accepted.

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