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Appeal No. RI‑532 Qf 1983, decided on 12th July, 1984.

‑‑‑Ss. 25‑A & 38(3)‑‑Railway Servants (Efficiency and Discipline) Rules, 1975, r.5‑‑Charge of un-authorised absence from duty‑‑Action taken under Railway Servants (Efficiency and Discipline) Rules, 1975‑‑Neither any enquiry conducted nor opportunity of showing cause afforded‑ Departmental appeal also withheld‑‑impugned termination order passed by authority not competent to do so‑‑Such order in circumstances, held, rightly set aside by Labour Court awarding re‑instatement without back benefits.

S. Intisar Hussain for Appellant.

Date of hearing: 26th June, 1984.

The decision, dated 29‑9‑1983 recorded by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi has been challenged whereby the respondent was directed to be re‑instated in service without back benefits.

2. The respondent was sanctioned leave from 9‑9‑1975 to 14‑5‑1976. He did not return after expiry of leave to resume duty. After the expiry of five years the services of the respondent were terminated without holding any enquiry. The learned lower Court has set aside the order of termination of services on two grounds namely that F.R‑16 was superseded by E & D Rules, of 1975, therefore, holding of enquiry was necessary, that the competent authority to pass the order of termination of services was the Divisional Electrical Engineer, whereas the order of termination was passed by the Assistant Electrical Engineer and that the departmental appeal of the respondent was with held. I cannot endorse the finding of the learned lower Court that F.R‑18 was superseded by the E & D Rules of 1975. The learned counsel for the respondent has not been able to show any clause that may have superseded the F.R‑18. But in the present case action was taken under the E & D Rules as is mentioned in the charge‑sheet Exh. P.1. Since the appellant took action under E & D Rules, it was necessary to hold an enquiry giving opportunity to the respondent to show the cause of his absence. Since admittedly, no enquiry was held, the A respondent was condemned unheard. Even his departmental appeal was withheld. It has not been shown by the learned counsel for the appellant that there was no right of appeal available to the respondent.

3. This finding of the learned lower Court is also correct that in the case of the respondent the competent authority to remove him from service was the Divisional Electrical Engineer. Item No. 18 of Exh. P.8/2 suggests that the competent authority to impose major penalty would be the Divisional Electrical Engineer. Needless to say that the termination of services is a major penalty. So, the order of termination of services was passed by an incompetent authority and thus such an order having no legal value was rightly set aside by the learned lower Court.

4. As a result, the appeal fails and is dismissed.

A. E.

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