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Appeal No. 12(R) of 1978, decided on 7th April, 1980.
‑‑‑R.6‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Penalty of compulsory retirement from service imposed on civil servant on basis of material obtained from inquiry report‑‑Such inquiry neither conducted in presence of civil servant nor witnesses examined before him‑‑No personal hearing was allowed to civil servant‑‑Procedure for inquiry under R.6 of Efficiency and Discipline Rules having been violated, civil servant was re‑instated in service with effect from date he was retired with all the' back benefits.
Raja Iftikhar Ahmad for Appellant.
S.M. Shahudul Haque for Respondent.
Date of hearing: 7th April, 1980.
.‑‑The appellant, Mr. Nazir Muhammad was retired compulsorily from service as a measure of punishment with effect from 9‑8‑1977. His appeal was rejected on 22‑1‑1978. As he could not secure redress from the departmental administration, he has filed the present appeal before the Service Tribunal on 12‑2‑1978.
2. The facts of the case briefly are that the appellant handed over a previously booked call from Peshawar to Multan as ordinary call on 5‑11‑1976 at 7‑00 a.m. while on duty at the public counter of the Telegraph Office. At 7‑15 a.m. the subscriber asked the appellant to make the call urgent. The call matured at 7‑33 a.m. for Multan. He issued a receipt for Rs. 25 and charged the subscriber for the same amount. The same amount was credited to the Government. The charge against him was cheating a subscriber deliberately as he alleged to have charged the call at the rate of urgent calls whereas the call was booked and matured as an ordinary call.
3. During today's hearing, the learned counsel for the appellant argued that proper enquiry has not been held for awarding the punishment. The appellant was not afforded reasonable opportunity to defend himself. Evidence was not recorded in his presence nor were the witnesses examined before him. No personal hearing was allowed to he appellant.
4. The learned counsel made a reference to the statement of the witness, Mr. Shamshad Muhammad, who was present at the time of the booking and maturing of the call. According to this statement, the call was made urgent from ordinary one, at the request of the subscriber.
5. It was further explained by the learned counsel that initially as show‑cause notice was served on the appellant. In reply, the appellant refuted the charges levelled against him. Subsequently, a charge‑sheet was served on him vide Superintendent, C.T.O., Peshawar, dated 1‑2‑1977, levelling the same charges against the appellant. In reply to this charge‑sheet, the appellant again refuted the charges. The Superintendent C . T . O . in his report held the appellant guilty of the charges framed against him and recommended the penalty of removal from service. After examining the memo. of charges and report of Superintendent, C.T.O. the General Manager Northern Telecommuni cations Region, Peshawar, ordered compulsory retirement from the service with effect from 9‑8‑1977. It was the case of the learned counsel that due to non‑observance of the procedure, as mentioned above, the disciplinary proceedings and the punishment awarded on that basis are without any legal force.
6. The written objections filed by the respondent department were examined at this stage. In para. 3 of these objections, it has been admitted by the respondent department that the Superintendent, C.T.O. was directed by the General Manager to proceed against the appellant in accordance with the E&D Rules, 1973. The enquiry officer was appointed as well as the personal hearing was conducted by the Assistant Director (Traffic) on 8‑6‑1977. The order of retirement was made on the basis of that enquiry.
7. When confronted with this position, the learned State counsel admitted that initially only a show‑cause notice was given under Rule 5(3) of E&D Rules. However, later on, proceedings were taken under Rule 6 and an Enquiry Officer was appointed who conducted the enquiry.
8. After hearing both the parties, we reach at the following conclusions:
According to the admitted position; an inquiry officer was appointed on whose report the punishment has been awarded. This shows that the material obtained from such an enquiry was used for awarding the punishment. The enquiry was not conducted in the presence of the accused nor were the witnesses examined before him: No cross -examination of the witnesses has been permitted. In the circumstances, procedure for enquiry as prescribed under Rule 6 of the E&D Rules, 1973 has been violated. We, therefore, vacate the order of punishment. The appellant should be treated as re‑instated into service with effect from the date he was retired with all the consequential benefits.
A.A./373/Sr.F
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