1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER),‑‑The business of this judgment lies in the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed by the appellant a Fitter in the employment of the respondents, against the order of termination of his services with effect from 5‑2‑1983 passed on 14‑4‑1983, under the WAPDA Efficiency and Discipline Rules.

2. These are the facts in the background: On 28‑2‑1983, he was served with a document purporting to be a charge‑sheet, where it was alleged that he had been absent from duty without intimation or sanction of leave with effect from 5‑2‑1983, which amounted to "clear misconduct under the relevant Efficiency and Discipline Rules". The charge‑sheet further said that if the allegation of absence without leave is established, he will he guilty of misconduct and liable to all or any of the penalties prescribed under the Rules. 2‑A. The respondent's case is that the appellant did not respond to the charge sheet in spite of due service and that he was then served with a show cause notice by publication in Wapda's official "Khabarnama" of 29‑3‑1983. Even this publication went without any response and his services were ultimately terminated by the Competent Authority through impugned order dated 74‑4‑1983, with the observation that it was not reasonably practicable to provide the appellant with an opportunity to show cause under the provision of the Rules. The order further said that he was debarred from further employment in Wapda.

3. In support of the relief sought by the appellant it has been pleaded that he could not attend the office from 5‑2‑1983 because of serious illness and that his absence was not wilful, as could have justified the termination of his services. Another ground in support is that penalty of termination of services has not been prescribed under the Rules and that the impugned order was ab initio void on that ground.

4. The appeal has, inter alia, been opposed on the ground of limitation. The respondent's learned counsel contended that the appeal Filed on 2‑4‑1984 against the impugned order passed on 14‑4‑1983 was hopelessly time‑barred. In his application dated 11‑11‑1983 (Annex.‑A), the appellant staled that he had earlier sent applications for leave on the ground of illness on 20‑2‑1983 and 15‑3‑1983. This application was accompanied by medical certificates dated 5‑2‑1983, 8‑5‑1983 and 10‑11‑1983 (Annexs. A‑I. A‑II, and A‑III). In his departmental appeal dated 3‑1‑1984 he again made a mention of all these applications, alongwith two others dated 11‑11‑1983 and 24‑11‑1983 sent through registered post. However, it was contended by the respondent's learned counsel at the Bar, and not without substance, that applications dated 20‑2‑1983 and 15‑3‑1983 were never received by the respondent. The receipt of two subsequent applications dated 11‑11‑1983 and 24‑11‑1983, was however, acknowledged. The respondent's contention apart, there are reasons to believe that the appellant addressed an application for the first time on 11‑11‑1983 by registered post and that earlier applications were not sent as claimed by him.

5. This brings us to the conclusion that formal departmental appeal was filed by him for the first time on 13‑1‑1984. Even if application dated 11‑11‑1983 be treated as an appeal, it was not filed within 60 days under Rule 11 of the Wapda Efficiency and Discipline Rules. But another circumstance becomes available from the record which would bring the present appeal within limitation. The respondent's letter dated 29‑2‑1984 (Annex.‑F) shows that his case was considered by the Competent Authority and it was found that the order regarding termination of his services issued by the Chief Engineer concerned was valid. There is no denial of the fact that this letter was received by him on 5‑3‑1984. It made a reference to the appellant's application dated 30‑11‑1983 and purports to JA, deal with a complaint. Irrespective of its reference to application dated. 30‑11‑1983 and the fact that it purports to deal with a "complaint", there is substance in argument that it informed the appellant that his case had been considered by the Competent Authority. Consideration of the case evidently means that Competent Authority addressed itself to the matter regarding termination of his services and this being so, there would be every justification for concluding that appellant's application dated 30‑11‑1983 was treated as departmental appeal and dismissed on merits. In the situation arising out of this letter, the appellant was within his rights to treat it as a final order in his case and then come to the Tribunal for the redress of his grievance within 30 days of its communication. The limitation, under these circumstances, having started running against him from 5‑3‑1984, the present appeal filed on 2‑4‑1984 was obviously within time.

6. On merits we find that there has been serious irregularities in the proceedings of the respondent. As already noticed, letter dated 28‑2‑1983 served upon the appellant has been described as a charge‑sheet. Even in paragraph 4 of the written statement it has been pleaded that the appellant was served with a charge‑sheet on 28‑2‑1983.

7. If it was a charge‑sheet, it must have been held by the Competent Authority that either in the light of the facts of the case or in the interest of justice, inquiry should be conducted against the appellant. If this was so, the charge‑sheet should have been accompanied by a statement of allegations. No such statement was, however, there on the record. Further, neither any Inquiry Officer was appointed; nor, for that matter, any inquiry was held; which was essential in the procedure adopted by the respondent. In the absence of these formalities, the proceedings suffered from material and incurable defects, in the presence of which it is not possible to say that the appellant has had the opportunity of defending himself.

8. Even if this "charge‑sheet" dated 28‑2‑1983 be treated as a notice within the meaning, of Rule 5(iv) of the Rules, there has been material irregularities in the proceedings, as the appellant was never served with a second show‑cause notice in accordance with the requirements of Rule 5(v) of the Rules.

9. It was contended by the respondent's learned counsel at the Bar that show‑cause notice published on 29‑3‑1983, served the purpose of a final notice as envisaged by Rule 5(v) of the Rules. I am afraid it is not possible to agree. An application to this notice would show that it called upon the appellant to show cause why he should not be removed from service in ex parte proceedings. This notice did not serve the purpose of a second show‑cause notice of Rule 5(v) of the Rules where the proposed penalty should have been provisionally determined. Even an opportunity of personal hearing was not afforded by this notice. The respondent's failure to fulfil these fundamental statutory requirements vitiated the proceedings, which leads us to the irresistible conclusion that the impugned order resulting from these proceedings is not legally sustainable.

10. The appeal is, therefore, accepted and the impugned order is set aside. The appellant shall be reinstated in service with effect from the date of termination of services, but the intervening period till the date of this judgment will be treated as that of leave extraordinary without pay. In case the respondents decide to start disciplinary proceedings against the appellant afresh, they will be at liberty to pass any order m accordance with the Rules. There will be no order as to costs. A.A./400/Sr. F Appeal accepted.