1993 PLP (C (PLC(CS))

(Sd.) Executive Engineer, Abdullahpur Division (E) WAPDA, Faisalabad"

4. It appears from this notice that according to the competent authority he failed to submit his explanation in writing in response to the charge‑sheet. However, he denied the correctness of this allegation in his second explanation dated 10‑1‑1988 where it was stated that he had handed over his explanation to charge‑sheet of 18‑11‑1987 to the concerned SDO on 14‑12‑1987 and that he had not committed any default. He further stated that there was no attempt on his part to escape from the inquiry. Another explanation to the same effect was submitted to the competent authority by him on 2‑4‑1988.

5. The disciplinary proceedings culminated in the passage of following order dated 10‑4‑1989:‑‑ "ORDER Keeping in view the history of the case cited above at Sr. Nos.l to 5 and opinion of Wapda counsel at Sr. No.6, I, Mr. Ehsan Elahi Executive Engineer (E) Wapda, Abdullahpur Division, Faisalabad being a competent Authority under. Wapda E&D Rules, 1978 applicable to Mr. Muhammad Yaqoob s/o Bashir Ahmad ALM Chak Jhumra Sub‑Division have decided to impose being convicted and sentenced by the Magistrate Section 30 following penalties, upon the accused in this case with immediate effect. (1) Dismissal from service. (2) Debarred for future employment under Wapda and its consultants. (Sd.) (Ehsan Elahi) XEN (E), Abdullahpur Division, Faisalabad."

6. When his departmental appeal under Rule 11 of Pakistan WAPDA (Efficiency and Discipline) Rules, 1978 failed to bear any fruit, he was obliged to have recourse to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 praying that the order of his dismissal from service dated 10‑4‑1989 may be set aside as illegal and the respondents directed to reinstate him with all consequential back benefits.

7. Detailed address to the pleadings of the parties is not necessary. It will be sufficient to say that the gist of the appellant's case is that he never concealed any fact from the competent authority at the time of his recruitment as ALM, and that no offence to any rule was involved. While reiterating that the appellant did conceal the fact of his conviction at the time of recruitment, the respondents laid stress upon the fact that he was convicted and sentenced to seven years' rigorous imprisonment about seven or eight years before his appointment.

8. An application to the record shows that proper procedure does not appear to have been adopted in this case in conduct of disciplinary proceedings. However, we are inclined to ignore this aspect of the matter because of the reason that it is otherwise impossible to maintain the impugned order of dismissal from service. As we have noticed before, the main allegation against him is that he concealed the fact of conviction at the time of recruitment from the competent Authority. However, it appears from the impugned order that the competent Authority penalized him, not for any such concealment but for the fact that he was convicted and sentenced to a term of imprisonment by a Magistrate Section

30. Although the fact of this conviction does find placed in the charge‑sheet as also in the statement of allegations, the main charge is not that of conviction, but that of concealment of the fact of conviction at the time of recruitment. Although it has not been specifically so stated either in the charge‑sheet or in the statement of allegations, but what the competent Authority appears to have alleged against the appellant is that he contrived his recruitment by misrepresentation. There is, however, nothing on the record to support that he brought about his recruitment by any contraption.

9. As we have mentioned before in the statement of facts, the appellant's case is that he was never enquired at the time of recruitment about the fact of conviction. It is also there that even under the rules he was not under an obligation to disclose that he had been so convicted. Even the report of the Inquiry Officer supports this contention. The report notwithstanding, the respondents' learned counsel has not been able to lay our hands on any rule or instruction which could have placed the appellant under an obligation to disclose that he was a previous convict. Even from the record it does not appear that he was put any question to that effect by the competent Authority and that he lied to it in response. This being so, it is not possible for us to say that the appellant managed his recruitment either by misrepresentation or fraud.

10. We might as well mention that the Inquiry Officer held the appellant guilty of the charge against him. But the report makes an interesting reading. In the main part of the report he said that in his defence reply the accused admitted that he had been sentenced by the Court of a Magistrate, but he claimed that no one enquired from him about this fact at the time of recruitment. The Inquiry Officer upheld this plea while saying that it was a fact that service record of the accused does not contain any document "with his signatures in which he was asked to show whether he had been convicted and sentenced by the Court of Law". After this finding, we fail to understand how he could possibly hold that the charge against him had been proved. Nothing in fact had been proved for a finding of guilty.

11. Apart from what has been said in the preceding paragraphs, we have not been able to find anything from the Efficiency and Disciplinary Rules to show that any penalty could be imposed against the appellant under the circumstances. Even the respondents' learned counsel could not point out any provision, when asked about the rule under which he had been dismissed from service. There is no rule which could have justified his dismissal from service on a conviction which came about seven or eight years before his recruitment.

12. For these reasons, the appeal is accepted and the impugned order of dismissal from service is set aside with all consequential benefits. No order as to costs. A.A./7 51/Sr.F Appeal accepted.