2008 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

Vide order, dated 18-1-2001, the appellant who was lastly working as Senior Engineer, WAPDA was removed from service under Pakistan WAPDA (E&D) Rules, 1978.. The appellant preferred a departmental appeal to the Chairman WAPDA, which was rejected vide order dated 27-6-2001, hence, the appellant filed the present appeal under section 4 of the Service Tribunals Act, 1973 before this Tribunal on 27-7-2001 praying therein to set aside the impugned order holding the same to be illegal, unlawful and unjustified and reinstate the appellant in service with all back-benefits.

2. The facts in brief are that the appellant who had rendered twenty two years of his service and a meritorious record, he while serving as Senior Engineer in the Office of Chief Engineer TPS Guddu was placed under suspension by Managing Director (Power) WAPDA vide order dated 23-6-1999 and subsequently was transferred to WAPDA House Lahore. On 16-9-1999 a letter of explanation was issued to him by the Chairman WAPDA regarding recommending of P.Os. at high rates, which had caused loss to the authority. On 24-12-1999 the appellant submitted his reply to the aforesaid explanation denying all the allegations against him in the said explanation but his reply was found unsatisfactory and on 27-5-2000 a show-cause notice was issued to the appellant which was also' replied to denying all the allegations against him but vide order dated 18-1-2001 the appellant was removed from service, against which he filed departmental appeal on 27-6-2001 which was rejected without disclosing the reasons for its rejection, hence he filed the present appeal before this Tribunal on 26-7-2001.

3. The respondents filed their parawise comments wherein they supported the impugned order dated 18-1-2001.

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

5. The learned counsel for the appellant contended that a fact finding enquiry was conducted by the respondents. He contended that the appellant was removed from service despite his extensive replies in his defence. He contended that the appellant was neither associated with the fact-finding enquiry nor he was given any copy of fact finding enquiry. He contended that since the charges of misconduct were levelled against the appellant, a regular departmental enquiry was mandatory, but no such enquiry was held and the appellant was deprived of adequate opportunity to defend himself. He placed reliance on 1993 SCMR 603, 1993 SCMR 1440, 1996 SCMR 602, PLD 1989 SC 335, PLD 2002 SC 607 and PLD 2002 SC

667. He also placed reliance on a judgment passed by F.S.T. Lahore in identical appeal wherein appellant Syed Muhammad Nafees Sadiq, Senior Budget and Account Officer, TPS, Guddu WAPDA was removed from service vide order dated 16-9-2000. His department appeal dated 10-11-2000 was not responded. The charges levelled against the appellant were very serious in nature but competent authority did not hold a regular enquiry against the appellant. The Tribunal held that it is a well-settled law that when serious charges are levelled against a civil servant, formal inquiry becomes essential to determine the truth of such charges. The appellant had been seriously prejudiced as no inquiry was held against him. The Tribunal agreeing with the appellant held that he should not have condemned on the basis of the report of the preliminary inquiry and directed the respondents to hold a formal inquiry against the appellant strictly in accordance with the rules.

6. The learned counsel for the respondents has failed to rebut the contention of the learned counsel for the appellant but supported the impugned order passed against the appellant and prayed for dismissal of the appeal.

7. We have carefully considered the arguments of both the learned counsel for the parties.

8. From the perusal of the record it has transpired that the proceedings against the appellant started with issuance of explanation letter which was replied to by the appellant denying the allegations against him. Thereafter a show-cause notice was issued which was also replied to by the appellant. Thereafter the appellant was removed from service vide order dated 18-1-2001. It has also transpired from the record that before issuing the letter of explanation a preliminary enquiry was held by the respondents against the appellant but he was not associated with the enquiry and was also not given any chance of cross examination. It reveals that in spite of denial of serious allegations of fact by the appellant no regular enquiry has been held against him. Even otherwise, object of a preliminary enquiry is to collect evidence and material and to determine the truthfulness of the allegations levelled against an employee. That employee can be declared guilty only through a regular enquiry which is held after Charge-sheet is issued to him. It is strange that the respondents did not feel the necessity of holding a regular enquiry against the appellant and for imposing penalty on him banked merely on the report of preliminary enquiry. As such, the proceedings conducted by the respondents which resulted into removal of the appellant from service cannot be protected. Our this view gets full support from the law laid down in PLJ 2000 Supreme Court

255. It was held in this authority that the fact-finding enquiry can never be a substitute for a regular enquiry and it could not be used against an accused employee for awarding major penalty of dismissal from service. Reliance can also be placed on 2001 SCMR 1566. We find that there are grave and serious infirmities in the disciplinary proceedings against the appellant which have vitiated the same. Reliance is placed on 1984 PLC(C.S.) 641, 1986 PLC(C.S.) 894, PLD 1994 SC 222 and 1985 PLC(C.S.) 245,v2004 SCMR 1662, 1993 SCMR 603.

9. For the reasons above, we while relying on the judgment passed by F.S.T.; Lahore in identical Appeal No.281(L)(CS)/2001-Syed Muhammad Nafees Sadiq v. Chairman WAPDA Lahore and Appeal No.300(K)(C.S.) of 2002 Hazoor Bukhsh Shaikh v. Chairman WAPDA Lahore passed by this Tribunal, accept the appeal, set aside the impugned order, dated 18-1-2001. The appeal is therefore, remanded with direction to the respondent, to reinstate the appellant and hold de novo disciplinary proceedings against the appellant on the same allegations/charges within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the respondent. The question of back benefits shall depend upon the result of the enquiry. No order as to costs.??????

10. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under rule 21 of Service Tribunal. H.B.T./26/FST???????????????????????????????????????????????????????????????????????? Order accordingly.