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Appeal No. 25 of 1984, decided on 9th August, 1984.

‑‑Disciplinary action‑Termination of service for misconduct of absence from duty‑Action not taken by appointing authority competent to act as "authority"‑Enquiry Officer appointed by Authorised Officer conducting no proper enquiry and merely making round of village (place of duty) and inquiring from certain persons in absence of appellant‑Appellant, in circumstances, held not proceeded against by proper authority and no proper enquiry held against him‑Service Tribunal accepting appeal and setting aside impugned termination order re‑instating appellant to service‑Com petent authority however, held, free to hold fresh and proper enquiry‑North West Frontier Province Service Tribunals Act (1 of 1974), S, 4, North‑West Frontier Province : Government Servants (Efficiency and Discipline) Rules, 1973, r. 5.

Muhammad Alam for Appellant.

Muhammad Khan for Respondents.

‑Rizwanullah was a Supervisor in the District Malaria Control Programme at Peshawar. He was granted earned leave for 120 days from 6th April, 1983 to 3rd August, 1983. After the expiry of his leave he allegedly did not report for duty and he was, therefore, charge‑sheeted for absence from duty and after a departmental enquiry his services were terminated with effect from 5th October, 1983. He allegedly filed a departmental appeal and receiving no reply filed the present appeal in this Tribunal questioning the order terminating his service. As a matter of fact his allegation was that no order terminating his services had been served upon him and that he was restricted from attending his office and in his appeal he had prayed for setting aside the order restricting him from attending to his duties. The appeal was contested by the res pondents and after hearing counsel for the parties and going through the record it is abundantly clear that the order terminating the service of the appellant was not sustainable. First of all it is not clear as to who was the authority in his case who could order the enquiry against him and appoint an Authorised Officer for the enquiry. It was admitted by the respondents that the Chairman District Council had the powers to appoint the appellant and under the circumstances the Chairman of the District Council was, therefore, the authority in this case who should have taken action against the appellant. As a matter of fact the action against him was taken by the District Malaria Control Officer, Peshawar Zone, who was not the Appointing Authority. Besides an Enquiry Officer was appointed by the Authorised Officer but he conducted no proper enquiry. No evidence against the appellant was recorded in his presence. Neither was the statement of the appellant recorded by the Enquiry Officer nor his defence evidence recorded. The Enquiry Officer simply made a round of the villages where the appellant had to work and allegedly enquired from some persons who told him that the appellant had not come to their villages for work. This could not be treated as evidence against the accused as neither were those persons known nor they were examined in presence of the appellant. Even the statement or the officials in the office where the appellant was posted were not recorded for finding out as to whether he had reported for duty to his office after the expiry of his leave or not. The appellant was thus neither proceeded against under the Efficiency or Discipline Rules by the proper Authority nor proper enquiry was held against him. Under these circumstances we have no alternative but to accept this appeal and set aside the order termi nating the service of the appellant. The department would, however, be free to hold a fresh and proper enquiry against the appellant according to law.

A. E.

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