2005 PLP (C (PLC(CS))

MOAZZAM HAYAT, (MEMBER).

The present appeal under section 4 of Service Tribunals Act, 1973 has been filed by Muhammad Sarwar against WAPDA, XEN GEPCO, Pasrur Division, Sialkot against an order dated 19-8-1998 by which he was removed from service.

2. The appellant was charge-sheeted on 13-1-1999 for misbehaving with Muhammad Irfan Acting SDO Zafarwal on 6-10-1998 and for using rough language. He was also charge-sheeted on 21-4-1999 for misappropriation of 50 KVA Transformer and 200 KVA Transformer. For misappropriation of Transformers, two cases were registered against the appellant vide F.I.R. No. 47 of 1999 and F.I.R. No.81 of 1999. The Police investigated the case and in case F.I.R. No.81 of 1999 the appellant was discharged. The Competent Authority dispensed with the departmental inquiry and after issuing show-cause notice to the appellant removed him from service.

3. The appeal has been resisted by the respondents. It is maintained that the appellant was guilty of breaking office discipline when he abused the SDO and misbehaved with him. It is further maintained that the charges of misappropriation of Transformers were also proved against the appellant.

4. We have heard the learned counsel for the parties and have also perused the record.

5. We shall first take up the charge of misappropriation of Transformers. It appears from the record that in case F.I.R. No.81 of 1999 the appellant was discharged meaning thereby that he was not found guilty of stealing or misappropriating the Transformers. There is a report of the SDO on record endorsing the Police version. In view of this factual position we hold that the charge of misappropriation of 200 KVA Transformers is not proved.

6. The charge of stealing/misappropriating 50 KVA Transformer required a detailed inquiry. It is correct that the Competent Authority was empowered to dispense with departmental inquiry but we hold that the facts of the present case required a detailed inquiry. The appellant could not be held guilty of stealing/misappropriating a Transformer without a proper inquiry. The allegation of theft levelled against the appellant was not proved on record. He could not be given any penalty for a charge which was not proved.

7. However, we find that the charge of misbehaviour with the SDO is proved against the appellant. No inquiry on this charge was required. The Competent Authority had correctly held him liable for action as he had misbehaved with a senior officer.

8. Since the charge of theft./misappropriation is not proved, therefore, on these charges the appellant could not be punished. We, therefore, set aside the impugned order so far as it is based on these charges. As regards the charge No.1 of misbehaviour we find that the penalty imposed upon the appellant is disproportionate to the misconduct committed by him. Removal from service on the charge of misbehaviour is a harsh punishment and, therefore, it cannot be always sustained. But this is not the general rule. Every case has to be decided on its own merits/demerits. If the misbehaviour is very grievous and heinous then the official at fault can even be dismissed from service. In this case mis-behaviour had not been described. In the circumstances it is inferred that the conduct of the appellant was not that had so as to attract punishment of removal from service. The result is that the appeal is partially accepted. The impugned order of removal from service is set aside and we order that two annual increments of the appellant would be stopped for a period of two years. He is reinstated but he shall not be entitled to back-benefits from the date of his removal till the date he resumes his duty.

9. There shall, however be no order as to costs.

10. Parties shall have to be informed. H.B.T./165/FST Order according.