1984 PLP (C (PLC(CS))

MUHHAMMAD IRSHAD KHAN (MEMBER).‑The appellant then SSO‑II, 132 KV Grid Station, Haripur, was charge‑sheeted vide Charge‑Sheet dated, Nil for the following allegations :‑ (1) That you were actually transferred on your own request and as per your application to Managing Director (Power), Lahore (Copy attached) from SS & T Division Rawalpindi to SS & T Divi sion Peshawar, vide SE, G.S.O. Circle Rawalpindi Officer Order No. 15/33/87, dated 15th February, 1978 and consequently you were posted in 132 KV Grid Station, D. I. Khan. You have now lodged a bogus T.A./D.A. Claim on this very transfer, whereas it was clearly mentioned in the said office order that no T.A./D.A. is allowed to the official. Thus, you have tried to cheat the department in getting transfer T. A. by making an illegal claim, as stated above. This amounts to gross misconduct on your part under Efficiency and Discipline Rules. (2) That a lot of correspondence has been exchanged by you with the Chairman WAPDA and other higher Authorities by short- circuiting the office of S.E. G.S.O. Circle and the office of Xen- SS & T Division, Peshawar, which is clear violation of the Autho rity's instructions. Thus, you have deviated from the proper channel of correspondence, which amounts to gross misconduct on your part under Efficiency and Discipline Rules. (3) That you were asked to supply your School Leaving Certificate as per orders of Chief Engineer. G.S.O. Islamabad in order to verify your date of birth, but you have failed to produce the same and disobeyed the orders of this office as well as the orders of Chief Engineer, G.S.O. Islamabad. It has come to notice that your date of birth is 18th October, 1924, whereas you have manipulated it as 18th October, 1934. You are required to give a solid proof and state as to why you have given wrong date of birth. Thus, you have tried again to cheat the depart ment by reducing your age by 10 years in order to get the monetary benefit and this again shows a clear misconduct on your part under Efficiency and Discipline Rules. (4) That you were transferred from 132 KV Grid Station, D. I. Khan to 132 KV Grid Station, Haripur in the interest of Autho rity but you have made a lot of hue and cry and made correspon dence with the higher offices as well as this office both directly and indirectly. Thus, you have tried to black‑mail the office of the undersigned and, directly interfered in the smooth working of the circle and also tried to adversely affect the administration of this circle by your such uncalled for correspondence. It is worth mentioning that full T.A./D.A. was given to you on this transfer and it was made in the best interest of the department as there was no post of SSO‑II in 132 KV G.S.S. D. I. Khan. Again your this action amounts to gross misconduct and negligence of duty under Efficiency and Discipline Rules. (5) That you have made a tot of correspondence regarding your seniority, whereas Chief Engineer, G.S.O., Islamabad has already communicated to you vide his No. 597‑99/CEGSO, dated 4th October, 1978 that the officials upto Serial No. 8 of the Seniority list of SSO‑II circulated vide SE, G.S.O. Rawalpindi No. 4588 4668, dated 7th July, 1977 have so far been promoted whereas your name stands at serial No‑ 46 of the said Seniority list. Your claim for any revised seniority list should he substantiated with documentary proof. In spite of ail these actual facts, you are again writing to the Chairman WAPDA, Member (Power) and even to the higher tears ignoring the orders of the Chief Engineer G.S.O. and the undersigned. Thus, you are again found dis obedient black‑mailer. This again amounts to misconduct and misbehaviour on your part under Efficiency and Discipline Rules. The appellant submitted a detailed reply denying all the charges and requested for a personal hearing. Thereafter, an Enquiry Committee was constituted which submitted its report, dated 16th February, 1980 wherein the appellant was held guilty of all charges except charge No. 3 in respect whereof its finding was non‑committal. Thereon vide Officer Order, dated 13th March, 1980 the appellant was dismissed from service by the Superintending Engineer. The appellant, after serving a grievance notice, dated 5th April, 1980 on the respondent, moved a petition in the Labour Court, D. I. Khan, which allowed the same and directed his reinstatement into service vide its order, dated 30th May, 1981. The respondent Authority went in appeal against the said order of the Labour Court to the Labour Appellate Tribunal, N.‑W. F.P. which by its order, dated 24th September, 1983 holding that the matter falls within the exclusive juris diction of this Tribunal accepted the appeal and set aside the order of the Labour Court. Thereafter, the appellant filed the present appeal on 18th October, 1983.

2. A preliminary objection has been raised on behalf of the Res pondent‑Authority that the appeal is barred by limitation. It Is, how ever, well‑known that the position regarding jurisdiction, ‑in such cases, was, at that time, not clear so much so that in this very case the Labour Court not only entertained the petition of the appellant but also allowed the same. It is therefore, held that the time upto 24th September, 1983 was spent by the appellant in pursuing remedy before a wrong forum but under a bona fide impression that said Court had jurisdiction in the matter. If this time is excluded then the present appeal would be in time. In any case, the appellant has filed an application for condonation of delay duly supported by an affidavit wherein the delay stands explained to our satis faction and we, therefore, condone the delay and overrule the objection of the Respondent Authority in this behalf. It is an admitted position that the Enquiry Committee did no examine ay witness and based its report only on examination of the record. In our opinion, however, it was incumbent upon the Enquiry Committee in view of the nature of the charges, to examine the relevant witnesses orally and to provide an opportunity to the appellant to cross examine them. Quite obviously, therefore, the findings of the Enquiry Committee and the impugned order passed thereon, are based on no evidence. Such being the position the impugned order is liable to be set aside on this score alone.

5. On merits it is to be seen that in respect of charge No. 1 the defence of the appellant was that his transfer from Rawalpindi Division to Peshawar Division was not ordered at his request . but was in normal course, after he had completed a tenure of three years at Rawalpindi. The Respondent‑Authority has not been able to rebut the contention of the appellant which also finds support from the payment of transfer T. A. to him by the Authority. In any case, if any payment was wrongly made to him it would conveniently be recovered from the appellant but, in the circumstances of the case, receiving of such payment by him doe not constitute a misconduct.

6. The main allegation in charges Nos. 2, 4 and 5 was that the appellant indulged in direct correspondence with higher authorities. It may be advantageous to reproduce the finding of the Enquiry Committee in respect of these charges :‑ "During cross‑examination the official confessed that he had made direct correspondence with higher authorities because his grievance were not solved by the concerned Officers. Direct correspondence with the higher authorities is normally considered as against discip line. The Efficiency and Discipline Rules, however, do not con tain any specific provision in this behalf. This point is,, therefore, left to the discretion of the competent authority." A bare reading of the above would show that even in the opinion of the Enquiry Committee making direct correspondence with higher authori ties was not a misconduct under the Efficiency and Discipline Rules. We are quite clear in our mind that if the appellant had addressed hi representations to the higher authorities direct the concerned authorities were at liberty to file those representations without any action on the ground that the same were not routed through the proper channel. But such con duct of the appellant does not constitute a misconduct punishable with the extreme penalty of dismissal from service. At best it was a case of censure.

7. In respect of charge No. 3 the finding of the Enquiry Committee is that though the appellant had disobeyed the order of furnishing his School Leaving Certificate yet the date of birth recorded, as corrected, in his Service Book is his correct date of birth. Here again default of the appellant in not producing his School Leaving Certificate, does dot consti tute a misconduct.

8. The above analysis would show that the charges levelled against the appellant ex facie were not of such a nature so as to make him liable to be proceeded against under the Efficiency and Discipline Rules. We are, therefore, inclined to agree with the submission of the appellant that the relevant authorities bad a bias against him and the disciplinary action against him was taken as an act of victimisation with a pre‑determination to deprive him from livelihood. The impugned order is, therefore, not sustainable on merits also.

8. In view of the foregoing discussion the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re‑instated into service from the date of his impugned dismissal from service with all consequential benefits.

9. No order as to costs. A. E. Appeal accepted.