1989 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Feeling dissatisfied with the impugned order dated 17-8-1988 of respondent No. 1 vide which the services of the appellant were terminated, he has moved this Tribunal through the present appeal after exhausting the departmental remedy, by filing appeal before respondent No.

2. According to him he joined the Forest Department as Forest Guard some 15 years before. He was posted as such at Garhi Road Barrier when he was served with a show-cause notice regarding a truck which was carrying illicit timber, to which he submitted the reply and Mr. Masud-ur-Rehman, Forest Ranger, was appointed as an Authorised Officer, who after holding an enquiry recommended the penalty of censure and stoppage of increment but respondent No. 1 did not agree with it and passed the impugned order, against which he preferred an appeal to respondent No. 2 which also met with failure; hence the present appeal on the grounds that the order of respondent No. 1 is against law and all cannons of justice, that neither charge-sheet nor summary of allegation was served on the appellant nor any opportunity to produce defence was afforded to him and that respondent No. 2 also did not apply his mind. Further it was prayed that the penalty of termination from service is nowhere mentioned in the service laws. Together with it another Appeal bearing No. 209 of 1988 was filed against the impugned order on the same grounds in respect of the same order with this difference that service of the appellant was 13 years and he was posted as Forest Guard at Ghazikot Barrier. Since both the appellants assailed the impugned order dated 17-8-1988 of respondent No. 1 as well as subsequent order of respondent No. 2, therefore, this single judgment will dispose of both the matters under consideration. Written statement was submitted by the respondents and it was alleged that the appellant released a truck No. 7956-PRC carrying 90 Kail Scants = 466.06 cft. of illicit timber under the cover of challan of chir timber 100 scants = 389 cft. of Satbani Co-operative Society. The truck was, however, apprehended in a Saw Machine at Supply Bazar, Abbottabad on 31-12-1987 by Patrol Squad. Accordingly an enquiry was conducted by appointing Mr. Masood ur-Rehman, Forest Ranger, as an Authorised Officer, who issued a show-cause notice but the reply of the appellant being unsatisfactory, the impugned order was passed under (Efficiency and Discipline) Rules, 1973. Since the recommendations of the Authorised Officer were very lenient, therefore, the authority passed the impugned order. The Authorised Officer gave full opportunity to the appellant to defend him. The order of termination is actually order of removal from service hence it is in consonance with the provisions of the (Efficiency and Discipline) Rules, 1973. Learned counsel for the appellant argued that it was incumbent upon the Authorised Officer to give reasons for dispensing away with the enquiry proceedings against the appellant on the one hand and on the other hand it was a legal requirement to serve the appellant with the second show-cause notice before passing the impugned order. Learned counsel for the respondents on the other hand argued that the very order regarding the infliction of the minor penalty by the Authorised Officer suggests that he has dispensed away with the enquiry procedure. The authority was competent to differ with the recommendations of the Authorised Officer. We have given our patient hearing to the arguments advanced by both the sides and have come to the conclusion that rule 5 of the (Efficiency and Discipline) Rules, 1973 deals with the procedure to be followed by the Authorised Officer. Sub-rule (2) lays down that "the Authorised Officer shall decide whether in the light of facts of the case or the interests of justice an enquiry should be conducted through an Enquiry Officer or Enquiry Committee. If he so decides, the procedure contained in rule 6 shall apply". Sub-rule (3) of rule 5 provides that "if the Authorised Officer decides that it is not necessary to have an enquiry conducted through an Enquiry Officer or Enquiry Committee, he shall:- "(a) by order in writing: inform the accused of the action proposed to be taken in regard to him, and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action." When we go through the record of the case it becomes crystal clear that the Authorised Officer did not adhere to this legal requirement, but passed the impugned order on the basis of the material before him, after obtaining the reply to the show-cause notice from the appellant. The authority in the instant case did not agree with the recommendations of the Authorised Officer but instead enhanced the sentence proposed by the Authorised Officer. In every matter the authority is bound to issue show-cause notice to an employee before passing the order against him, but in the instant case it was more necessary because the authority did not accept the proposal of the Authorised Officer and in his own wisdom magnified the punishment. This vitiates the entire proceedings. We have no alternative but to accept the appeal by setting aside the impugned order and reinstate the appellant in service with all back benefits, from the date he was dismissed. Parties are, however, left to bear their own costs and file be consigned to the record room. H.B.T./119/Sr. N Appeal accepted.