1993 PLP (C (PLC(CS))

As a result of service of show‑cause notice upon the accused Mr. Abbas Ali s/o Muhammad Latif, Telephonist Chah Miran Sub Division, Lahore vide this office letter No. 14179‑80, dated 6‑12‑1986 sent at his home address, which was not responded by him. Later on said show‑cause notice was got published by the Director‑General, Public Relations WAPDA in the Wapda Khabarnama dated 14‑12 1986 and the same has also not been responded by him. I, Executive Engineer, Badami Bagh Division, Lahore "as competent Authority'", under the Pakistan Wapda Employees (E&D) Rules, 1978, am satisfied that as it is not reasonably practicable to give the said Mr. Abbas Ali Telephonist an opportunity to show‑cause in terms of Rule 5 of the aforesaid Rules and, therefore, the said Mr. Abbas Ali Telephonist Chah Miran Sub‑Division, Lahore is hereby dismissed from service under Rule 8(b) ibid with effect from 1‑11‑1985, the date from which he is absent from duty. His service particulars are as under:

1. Name Mr. Abbas Ali

2. Father's Name Muhammad Latif

3. Home address Gulla Mohrana, P.O. Same, Tehsil Narowal, Distt. Sialkot

4. Date of birth 15‑5‑1959

5. Date of joining 15‑4‑1978

6. Post held Telephonist (Sd.) EXECUTIVE ENGINEER, BADAMI BAGH DIVISION (E), WAPDA LAHORE"

2. His departmental appeal dated 9‑3‑1987 addressed to the Superintending Engineer was rejected and he came to the Tribunal with the nit appeal under section 4 of the Service Tribunals Act, 1973, with the prayer that the impugned, order of dismissal of 11‑1‑1987 and the order passed on 3‑2‑1988 on his departmental appeal may be set aside with a direction of reinstatement in service.

3. As we have noticed before, the order of dismissal was passed on 11‑1‑1987 and the departmental appeal was submitted to the competent authority on 9‑3‑1987. On rejection of the departmental appeal the appellant should have come to the Tribunal within 30 days of the communication of that order and the present appeal filed on 3‑11‑1988 is apparently tine‑barred. The appeal is accompanied by an application under section 5 of the Limitation Act read with section 7 of the Service Tribunals Act, 1973 for condonation of delay. The explanation for delay in filing the appeal is that the appellant learned about the rejection of his appeal on 25‑10‑1988. It is pleaded that he could not know about the fate of his appeal in spite of the fact that he frequently visited the respondent's Office for the necessary information.

4. The application for condonation of delay has been supported by means of an affidavit and we see no reason why the appellant's pleadings regarding receipt of information about the rejection of his appeal should not be believed as correct, particularly when there is nothing in the respondents, pleadings to show that letter dated 3‑2‑1988 regarding rejection of the appeal was duly despatched to him. No doubt that the letter has been addressed to the appellant and it should be presumed to have been received by him in the normal course of things. However, the department should have produced proof to show that it was in fact despatched to him and that he did receive it.

5. There is another point worth notice in so far as the appellant's request for condonation of delay is concerned. The record shows that there are certain material irregularities not only in the impugned order but also in the disciplinary proceedings culminating in the passage of this order. Try as we might, we do not find it possible to ignore these irregularities which go to the root of the matter. In view of the serious nature of these irregularities, the impugned order passed in this case by the respondent is apparently a nullity in the eye of law. This being so, there is substance in the argument that there is no limitation against a void order. 7. (sic) As for merits, the impugned order dated 11‑1‑987 shows that appellant was dismissed from service with effect from 1‑11‑1985, the date con which he is alleged to have become absent from duty without permission. It is settled law that no executive order can be made to operate with retrospective effect. The order of dismissal could be made to operate with effect from 11‑1‑1987 when it was passed by the competent authority. This has brought about a material irregularity in the impugned order which cannot be rectified.

8. Further the impugned order shows that the competent authority proceeded under Rule 8(b) of Rules in dismissing the appellant from service. This rule provides that "nothing in rule 5 shall apply to a case where the authority competent to dismiss or remove a person from service or to reduce a Person in rank, is satisfied that for the reasons to be recorded in writing by the authority it is not reasonably practicable to give the accused an opportunity of showing cause." We fail to understand how these provisions could be attracted under the circumstances of this case. The appellant has placed on record a photostat copy of his arrival report (Annexure B) in response to final show cause notice dated 6‑12‑1986. It shows that he submitted his arrival report on 28‑12‑1980 in compliance with the aforementioned notice of 6‑12‑1986. An endorsement of the concerned officer on this arrival report made on 29‑12‑1986 bears out that he was accepted on duty. It is borne out by Office Order 4, dated 4‑1‑1987 (Annexure C) that he was placed under suspension with effect from 1‑11‑1985 on account of absence from duty as reported by the concerned Sub‑Divisional Officer through Memo. No. 1220‑21, dated 21‑12‑1985. These documents leave little room for any doubt ' that the appellant did report to the Office on 28‑12‑1986 and that he was allowed to join. This being the factual position, it is not possible to hold that there was any justification for pressing the provisions of Rule 8(b) of the Rules into service. There is nothing on the record to show that it was not reasonably practicable to give him an opportunity of showing cause against the proposed action. The reverse of it is rather true in that ‑the appellant had joined his office on 28‑12‑1986 and he could easily be afforded an opportunity to show‑cause against his dismissal from service.

9. Apart from what has been said in the preceding paragraphs, we find that proper procedure has not been adopted in this case. If at all it be presumed that action under Rule 5(iv)(a) of the Rules was justified, there is no reason why the appellant should not have been served with a final show‑cause notice under Rule 5(v)(b) of the Rules, calling upon him to show‑cause within a reasonable time why the proposed penalty should. not be imposed against him. The final show‑cause notice of 6‑12‑1986 issued in this case leaves almost everything to be desired. No penalty was proposed in this notice and he does not appear to have been called upon to explain in accordance with the spirit of the rules as to why he should not be dismissed from service.

10. There is another point worth notice. The order of suspension dated 4‑1‑1987 shows that the competent authority advised the SDO concerned of Chah Miran Sub‑Division to prepare a draft charge‑sheet with statement of allegations and forward it to the Executive Engineer Officer for vetting purposes. There is substance in the contention that the order of suspension with the aforementioned advice for preparation of a charge‑sheet nullified the previous disciplinary proceedings held against the appellant.

11. It seems to us that the competent authority was not sure about how to proceed against the appellant in the matter. The order of suspension dated 4‑1‑1987 was passed irrespective of the final show‑cause of 6‑12‑1986, if at all it can be treated as such a notice within the meaning of Rule 5(v)(b) of the Rules. Then, in the impugned order the competent authority took refuge in the provisions of Rule 8(b) of the Rules saying that it was not reasonably possible to provide the appellant with an opportunity to show‑cause against the proposed action. Be that as it may, the procedure adopted by the respondents in this case is full of material irregularities and it cannot possibly be said that' the appellant has been provided with an opportunity to defend himself.

12. For these reasons, the appeal is accepted and the impugned orders dated 11‑1‑1987 and 3‑2‑1988 are set aside. The appellant shall be reinstated in service, but the respondents shall proceed against him afresh under the Pakistan WAPDA Employees (Efficiency & Discipline) Rules from the stage whence the procedural mistake can be rectified. They may then pass any order against the appellant in accordance with law including that of suspension.

13. There will be no order as to costs. A.A./749/Sr.F Order accordingly.