1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑For disposal in this judgment, we have got an appeal under section 4 of the Service Tribunals Act, 1973 filed by the appellant against the respondents' order dated 10‑8‑1985 terminating his services with effect from 3‑11‑1984 (forenoon) when he was serving as Tubewell Operator at Shahpur, Unit No. 1 under the control of the Executive Engineer, Mona Tubewell Operation Division, WAPDA, Bhalwal.

2. The impugned order was to the effect that the services of Mr. Muhammad Ayub son of Allah Din, Tubewell Operator "are hereby terminated w.e.f. 3‑11‑1984 (forenoon) on account of unauthorised continuous wilful absence from duty under `Efficiency and Discipline Rules of WAPDA Employees, 1978.

3. These are tile grounds on which the legality of the order of termination of service is being challenged: (a) The penalty of termination has not been prescribed in the relevant provisions of Wapda (E & D) Rules, 1978 and the impugned order is, therefore, ab initio void. (b) The allegation regarding unauthorised absence from service which is the only basis for passage of the impugned order has not been established by any evidence. (c) The order of termination of service with retrospective effect is not warranted by any provision of rules and law applicable to the circumstances of this case. (d) The impugned order has not been passed by the competent authority and is, therefore, illegal.

4. As we see from the charge‑sheet dated 9‑4‑1985, (Annex. A), the only allegation against the appellant was that while working at Tubewell No. SHP‑10 in Shahpur, Unit No. 1 as Operator, he had continuously been absent without leave since 3‑11‑1984 which amounted to misconduct.

5. The appellant's reply to the charge‑sheet (Annex. B) having been found unsatisfactory, an Enquiry Committee was constituted which submitted a report (Annex. E) on 18‑6‑1985, leading the authorised officer to the service of final show‑cause notice dated 8‑7‑1985 (Annex. D).

6. The Enquiry Committee does not appear from the record to have examined any witness or other evidence in support of the allegation that the appellant had been absent from‑ duty without any leave since 3‑11‑1984 as mentioned in the charge‑sheet and the statement of allegations. However, we do not think it is necessary to make any detailed address to this aspect of the matter, for the impugned order seems to be defective on account of the existence of another circumstance which can be spelled out of the nature against the appellant.

7. Rule 4(1)(b) of the Rules provides for the following major penalties. (i) reduction to a lower post or time‑scale; or to a lower stage in a time scale; (ii) compulsory retirement; (iii) removal from service; and (iv) dismissal from service.

8. It is quite clear that the penalty of termination of service does not find any place in the penalties prescribed by rule 4 of the Rules. Paragraph 2 of the charge‑sheet dated 9‑4‑1985 (Annex. A) provided that in case the allegation of unauthorised absence is established, the appellant will be guilty of misconduct under the Rules and that he will render himself liable to all or any of the penalties described therein. We feel no hesitation in saying that while inflicting punishment against the appellant, tile Authority could not have gone beyond tile scope of the charge‑sheet and the appellant could be visited only by a penalty which had been mentioned therein and to which he had been asked to address himself. By no means could he be required to defend himself against the possibility of a penalty which had not been mentioned in the Rules. Therefore, the infliction of a penalty outside the ambit of the Rule has vitiated the impugned order and rendered it illegal.

9. The respondent has placed letter dated 4‑12‑1985 on t e record which purports to have been addressed to the Chief Engineer by the Project Director. It has been stated in this letter that the word `terminated' was used in the sense of `dismissal' from Wapda service as both bear the same meaning. In the first place, termination of service is not necessarily synonymous with dismissal from service. We are of the view that termination of service is not necessarily the same as dismissal from service and that both arc basically different in incidents and consequences. Therefore, in spite; of this clarification, we are inclined to maintain that the punishment inflicted against the appellant was beyond the scope of the Rules.

10. For these reasons, the appeal is accepted and the impugned order is set aside as illegal. The respondents will, however, be at liberty to proceed against the appellant afresh in accordance with rules on the subject of the disciplinary proceedings. In case the disciplinary proceedings arc initiated afresh in accordance with the rules against the appellant, it is for the respondents to pass such orders as they deem lit in respect of the period during which he did not actually perform his duty. There will be no order as to cost mw

11. Parties to be informed. A.A./448/Sr. Appeal accepted.