1989 PLP (C (PLC(CS))

Ch. A. RAHMAN KHAN (MEMBER).‑‑The appellant, Sher Muhammad, Ex‑LDC, Revenue Office, City Sialkot WAPDA, has come in appeal against the impugned order of dismissal dated 19‑9‑1982.

2. The facts of the case arc that the appellant was suspended from service vide order dated 5‑9‑1982 on account of his poor performance in office work and for remaining habitually absent from office without permission. He was later served a show‑cause notice dated 8‑9‑1982. The extracts of the show cause notice are appended below: "Pakistan Electricity Deptt. Memo No.C‑82/R.YCFG Dated 8‑9‑1982. From The Revenue Officer (E), WAPDA Sialkot City. To Malik Sher Muhammad (Under Suspension) LDC R.O. Sialkot City. Subject: SHOW‑CAUSE NOTICE. While working as LDC in R.O. City during 9/82, you committed the following acts of omission and commissions.

1. It has been reported by your Billing Supervisor that the following ledgers under your charge have not been completed by you with column No.24, which clearly shows your inefficiency, poor performance and lack of interest in the official work. S.No. Month L.No. Month 34 5/82 49 8/82 22 8/82 58 8/82 49 8/82 61 8/82 43 8/82 64 8/82

2. It is also noticed that you were often found missing from your seat and slip away from the office without any information/prior approval from your incharge as well as the undersigned.

3. On receiving your suspension order issued vide this office order No.118 dated 5‑9‑1982 due to the above mentioned allegations, you became rash, misbehaved with the undersigned, and used un parliamentary/vulgar language. This act of years comes under the purview of misconduct.

4. It is evident from the above, that you are unwilling worker/inefficient employee of the department and so the charge of inefficiency is also imposed on you. I, S.Mansoor Ali Shah, Revenue Officer (E) WAPDA Sialkot City as a "Competent Authority" have considered the case under rules 5(iv)(a) o: Pakistan WAPDA Employees (E&D) Rules, 1978 and upon consideration, I have decided that it is not necessary to have a formal inquiry conducted in this case. You are, therefore, directed under the rules 5(iv)(b) ibid to show‑cause in writing within 14 days of the receipt of this notice, why all or any of the major penalty/penalties described in rule 4 ibid should not be imposed on you. You are also allowed to be heard in person if so desired."

3. It was contended by the learned counsel for the appellant that in his defence reply the appellant strongly challenged the bona fides of the allegations levelled against him in the show‑cause notice. However, without holding any formal enquiry to prove the allegations against the appellant and without affording him the opportunity of personal hearing the Authorised Officer issued the impugned order dated 19‑9‑1982 dismissing the appellant from service. This impugned dismissal order was later withdrawn and held in abeyance vide order dated 20‑9‑1982 so as to conduct the enquiry and complete the departmental formalities under the WAPDA (E&D) Rules, 1978.

4. It was submitted by the learned counsel for the appellant that in spite of the order dated 20‑9‑1982 another order dated 22‑9‑1982 was issued whereby order dated 20‑9‑1982 was withdrawn on technical grounds and the impugned order of dismissal was ordered to remain in force. The appellant, therefore, challenged the impugned order before the Punjab Labour Court No.7 by serving a grievance petition dated 25‑9‑1982 which was, however, returned by the learned Court on 22‑3‑1983 for lack of jurisdiction. The appellant, therefore, submitted his appeal to the competent authority on 22‑3‑1983. The question of jurisdiction was in fact finally decided by the Supreme Court in F. U. Malik's case 1983 S C M R

663. Uptil then the confusion as to the right forum of appeal for WAPDA employees was not clarified. The present appeal was Filed before the Tribunal on 28‑3‑1983. It was strongly contended by the learned counsel for the appellant that although the appeal at that time could be treated as premature but the respondent‑department has not so far taken any action in this regard and, therefore, as of to date the appeal may be considered competent. Furthermore. it was submitted that the Tribunal has in so many cases condoned the delay in similar circumstances. The reliance is placed on 1987 S C M R 1936; 1984 P L C 98 and 1984 P L C 151‑485‑490.

5. The learned counsel for the appellant contended that on merits the allegations given in the show‑cause notice were very vague. No detailed information was provided so that specific reply could be given on any of the allegations. It is not enough to say that the performance of the appellant was not satisfactory only because the entries in the ledger given in allegation No.l were not complete. The fact in this case is that the appellant was not only looking after the ledger because vide order dated 30th June, 1981 he was posted to officiate as Senior Clerk vice Mr. Muhammad Irshad Chaudhri, UDC in addition to his own duties. This officiating arrangement was also ordered vide order dated 15‑4‑1982. If, therefore, the appellant was such an inefficient clerk he could not have been entrusted additional responsibility vide order mentioned above. Similarly in allegation No.2 no specific information is provided about the appellant being found missing from his seat. So, therefore, in the absence of any specific information the allegations cannot be considered as proved without proper enquiry. In the case of the third allegation the misconduct of the appellant against the Authorised Officer is mentioned. If it is true then it requires proper investigation. Also, the Authorised Officer could not act as a Judge in his own cause. The judgment in P L D 1984 S C 64 is clear on this issue. It was strongly contended by the learned counsel for the appellant that the impugned order of dismissal dated 19‑9‑1982 was issued by the Authorised Officer without applying his mind and, therefore, is considered ultra‑vires and void in the eyes of law. The impugned order may, therefore, be set aside being illegal and harsh.

6. The learned counsel for the State contended that the departmental appeal submitted by the appellant is hopelessly time‑barred because after the issue of the impugned order dated 19‑9‑1982 he should have filed his appeal within 60 days whereas his departmental appeal was filed on 22‑3‑1983. It was further contended that the procedure adopted by the Authorised Officer under Rule 5(iv)(a) of Pakistan WAPDA Employees (E&D) Rules, 1978 is correct. Therefore, there was no need of a regular enquiry. The Authorised Officer adopted this procedure because he was fully convinced that the appellant was guilty of the charges given in the show‑cause notice. This discretion of the Authorised Officer cannot be challenged by the appellant. Since the documentary proof in this case was sufficiently clear, therefore, it was not considered necessary to give him a personal hearing. The impugned order is, therefore, legal and may not be set aside.

7. We have gone through the record produced by the respondent department. We are of the view that since the allegations were challenged, therefore, a regular enquiry should have been conducted to prove the allegations. Furthermore, since allegation No.3 was decidedly against the person of the Authorised Officer, it is not considered right that the Authorised Officer should have acted as a judge in his own cause. In this particular case a regular enquiry to prove the allegations is considered essential. The charges of inefficiency and misconduct, therefore, cannot be considered to have been proved beyond doubt. It is a settled law now that an opportunity for personal hearing should always be provided which has not been done. We are, therefore, of the considered view that the Authorised Officer has failed to exercise his mind before issuing the impugned order. An illegal action is a nullity in the eyes of law. We, therefore, set aside the impugned order and reinstate the appellant in service without consequential benefits.

8. No order as to costs. A.A./431/Sr.F Appeal allowed.