2007 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Syed Zahid Hussain was a Telecom Technician MDF Digital, Rahim Yar Khan. He was served with a charge-sheet dated 12-10-1998. The allegations levelled against him are reproduced as under:-- "It is alleged that Mr. Zahid Hussain son of Abbas Ali Telecom Tech. MDF Digital Rahim Yar Khan (under suspension) misused your official position, adopted unfair means while performing your substantial duties entrusted to you. You have got misused T/Nos. of RYK-74030, 71478, 79275, 77305 and 74978 to subscriber of T/Nos.74575 and 74101 simply getting illegal gratification Rs.2,000 and also get employment of some of your relative from Haji Muhammad Siddique subscriber of T/Nos.74575 and 74101 who misused these telephones. This has been confessed by you before Enquiry Officer i.e. D.E. Phones, Sadiqabad. The total revenue occurred Rs.6,71,

352. Thus, you are liable for strict disciplinary action under Government Servant E&D Rules, 1973 on account of misconduct, negligence, embezzlement and defaming the reputation of PTCL."

2. In the inquiry the allegations were not proved against the appellant. The Authorized Officer did not agree with the findings of the Inquiry Officer in view of a confessional statement alleged to have been made by the appellant and recommended imposition of major punishment upon the appellant. The inquiry was earlier conducted by Mr. Khaliq-ur-Rehman, A.D. Thereafter, it was entrusted to Abdul Razzaq, A.E. vide order, dated 30-10-1998. Two annual increments of the appellant were stopped vide order, dated 6-10-1999. This order was subsequently set aside by the Division Engineer vide his order dated 17-1-2000. De novo proceedings were ordered by him. Mr. Muhammad Shafi, Assistant Engineer (Traffic) was appointed as an Authorized Officer. A fresh charge-sheet was issued by the Authorized Officer to the appellant on 14-2-2000. Mr. Sardar Masih, A.E. was appointed as Inquiry officer. In his inquiry report it was observed by the Inquiry Officer that the confessional statement of the appellant had been obtained under coercion. Not agreeing with the findings of the Inquiry Officer the competent Authority imposed the penalty of removal from service upon the appellant vide his order, dated 7-8-2000. The appellant filed a departmental appeal on 4-9-2000 but it was rejected on 9-12-2000. The order of the Departmental Appellate Authority was received by the appellant on 12-12-2000. It is in this background that the appellant has filed his present appeal under section 4 of Service Tribunals Act, 1973. It is prayed by him that the entire disciplinary proceedings carried out against him be declared void ab initio and ultra vires. He has also prayed that order, dated 4-9-2000 and order of the Departmental Appellate Authority dated 9-12-2000 be set aside and he be reinstated into service with back-benefits.

3. The appeal is resisted by the respondents. It is submitted that appellant had admitted the charges against him and his subsequent statement that confession made by him was under pressure was an afterthought. According to the respondents substantial financial loss had been caused by the appellant to the Department. A legal objection is also taken that the appeal is time-barred.

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

5. It is argued by the learned counsel for the respondents that since the departmental appeal filed by the appellant was rejected on 9-12-2000, therefore, the present appeal could be filed within 30 days starting from that date but it was filed on 15-1-2001 it was time-barred. On the other hand the argument of the learned counsel for the appellants is that appeal rejection order was received by the appellant on 12-12-2000 and within 30 days from that date the appellant had dispatched his appeal through post as such it could not be treated as time-barred. Under section 26 of the C.P.C. a suit is instituted by presentation of a plaint or in such other manner as may be prescribed. Order IV rule 1(1) of the C.P.C. says that every suit shall be instituted by presenting a plaint to the Court or Such officer as it appoints in this behalf. Under section 26 (ibid) a suit can be instituted in any manner that may be prescribed. Rule 5(1) of the Service Tribunals (Procedure) Rules, 1974 provides that an appeal to a Tribunal may be sent to the Registrar by registered post A.D. or presented to him during office hours either by the appellant personally or through his Advocate. Thus, this rule permits an appellant to send his appeal through registered post A.D. the date on which the appeal is despatched through registered post shall be the date on which it shall be deemed to have been presented. Rule 5 of the Procedure Rules facilitates the civil servants posted at remote areas to file their appeals through registered post. There is no rule which says that if the appeal sent by post is received after the expiry of period of limitation it shall be treated as time-barred. In the absence of such a rule the appeal shall be treated to be within time if it is presented before the postal authorities within the statutory period. In the circumstances we hold that the present appeal was filed in time as it was presented within the stipulated period before the postal department for its onward transmission to the Registrar of this Tribunal. The objection is overruled.

6. The appellant was awarded penalty of stoppage of two annual increments by the competent Authority vide his order, dated 6-10-1999. The said Authority cancelled his own order vide his subsequent order, dated 17-1-2000 and directed de novo proceedings. This order was passed by him in the light of instructions contained in ESTACODE S.No.94. We are of the view that since an adverse order of de novo proceedings was being passed against the appellant, therefore, a notice to him was mandatory. Without that notice the competent Authority had no power to pass order, dated 17-1-2000. Though no time frame is fixed for revision of a punishment order under ESTACODE S.No.94 but the competent Authority has to pass that order within reasonable time. What is reasonable time depends on merits of each case. In the present case the order for de novo proceedings was passed after about three months. In the meantime the appellant had withdrawn his departmental appeal filed against the punishment order dated 6-10-1999. It was, therefore, all the more essential and in the interest of justice that the competent Authority should have issued a show-cause notice to the appellant before passing the order dated 17-1-2000. In the circumstances of the case we hold that an illegality was committed by the competent Authority in not issuing a show-cause notice to the appellant before passing order for de novo proceedings. The order, dated 17-1-2000 cannot be sustained for the above reasons. The penalty imposed upon the appellant on the basis of de novo proceedings can also not be upheld for the same reasons.

7. For the reasons given above we accept the appeal and set aside the impugned order. The order of de novo proceedings dated 17-1-2000 is also set aside. The competent Authority is directed to pass a fresh order after issuing a show-cause notice to the appellant, if so desired. While passing any such order the competent Authority shall take into consideration the report of the Inquiry Officer that the confessional statement of the appellant had been obtained under coercion.

8. No order as to costs. Parties be informed. H.B.T./149/FST Order accordingly.