1989 PLP (C (PLC(CS))

Malik Ghulam Us Sayyadain for Respondents. Syed Zia-ud-Din, ex Food-grain Supervisor, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Director of Food, Punjab, Lahore and the Deputy Director Food, Bahawalpur Region, Bahawalpur, as respondents.

2. By virtue of this appeal he has prayed that impugned orders dated 9-3-1985 and 21-9-1985, passed by the respondents be set aside as illegal, and without lawful authority and he be reinstated in service with all back benefits.

3. Brief facts of the case are that the appellant while posted at PR-107 Fatehpur in the year 1')82-83, despatched wheat to P.R. Centre Chishtian 27850 bags weighing 2(,`15.750 M. Tons. However, it was found later on that this; quantity was short of 31,4415 M. Tons valuing Rs.59,116.60. He was proceeded against under the E & D Rules and Authorised Officer was appointed in this case. He proceeded against the appellant under rule 6(3) of the E & D Rules. The appellant was found guilty of the charges and was dismissed from service by order dated 31-12-1982, as well as recovery of Rs.59,116.60. He filed appeal before the learned Director Food Punjab, who vide his order dated 21-9-1985, upheld the dismissal of the appellant but later on he found that as he has to face another charge of misappropriation, embezzlement of huge amount of wheat, he held the dismissal order in abeyance and modified it into suspension and directed that inquiry should also be conducted into this aspect of the case. Hence this appeal.

4. I have heard the learned counsel for the appellant as well as learned Deputy District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant at the very outset has challenged the order of learned Director of Food as absolutely in violation of fundamental principle of procedure and justice and has submitted that once the dismissal order was upheld, no body on the earth could keep it in abeyance. According to him either a person is dismissed or reinstated in service and there is nothing in between the two. With regard to the first order which is also impugned passed against the appellant by the Deputy Director Food, Bahawalpur learned counsel for the appellant has submitted that the appellant could not be considered at fault because he has documentary proof with him that whatever wheat he despatched to N.L.C. was duly acknowledged. He has challenged the procedure adopted by the Authorised Officer in determining the loss as according to the instructions of the Department itself, it was obligatory to have the appellant present at the spot to have the weighment in his presence and fix the liability. With regard to the charge of absence he has further submitted that it was not wilful as he was genuinely ill supported by medical certificates.

6. On the other hand learned Deputy District Attorney has submitted that the order of learned Director of Food may not be happily worded but actually it was made in the larger interest of justice as the appellant should not have been allowed to go scot free for his misdeeds and embezzlement which ranged to a very high figure of more than Rs.5 lacs. With regard to the procedure adopted earlier for his dismissal from service by the Deputy Director Food, Bahawalpur, he has submitted that Authority has no other way left but to proceed against him in his absence as he was not available despite best efforts made in this behalf.

7. This Tribunal has given its anxious thought to the arguments advanced by the parties and finds that the order of the learned Director Food is patently illegal as on the one side he is upholding the dismissal of the appellant and at the same time he has declared the said dismissal in abeyance. This sort of exercise of power is nowhere envisaged under the Punjab Civil Servants (E & D) Rules, 1975, or anywhere else. It can well imagine the working of the mind of the learned Director Food as he might have been fully, conscious that no body can proceed against a dismissed person for any further loss as he will be no more a civil servant but such like apprehensions are made squarely according to the procedure so laid down in this behalf.

8. With regard to the grievance of the appellant that the earlier weighment which was done in the absence of the appellant was not according to the rules I find lot of force in the same. A clear cut procedure has been laid down in this behalf when en route shortage does occur and same is to be adopted strictly. If rules are made, they are made to be observed and not to be ignored.

9. In view of the above analysis of the case I proceed to accept the appeal, set aside the impugned orders and remand the case to the Authority to proceed against him through a regular inquiry and fix the liability of his misconduct if any, according to the rules so laid down in this behalf. The appellant should be reinstated in service in order to clothe him with the status of civil servant. Announced in the open Court on 29-4-1986. A.A./247/Sr. P Case remanded.