1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑Appellant Riaz Ahmed, while serving as a Sub‑Engineer, B/R, Grade‑I (officiating) with the Frontier Works Organisation (FWO), was dismissed from service under the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules), vide order dated 25‑6‑1990 issued from the E- in‑C Branch, GHQ, Rawalpindi. His departmental appeal made on 19‑8‑1990 having remained un-responded to, he preferred this appeal on 1‑12‑1990 for setting aside the order of his dismissal from service and his reinstatement in service with consequential benefits.

2. The appellant was proceeded against under the E&D Rules on the charge of his unauthorised absence from duty from 3‑7‑1984 to 1‑4‑1987 and was consequently dismissed from service.

3. The appellant has asailed the impugned order of his dismissal from service on the grounds that the proceedings against him were not taken in accordance with the E&D Rules inasmuch as that some times charge‑sheet was served on him and some times show‑cause notices were served on him and the proceedings lingered on for unreasonable time. He has also contended that he was employee of the Military Engineering Service (MES) and he was serving with the FWO on deputation and he could not be departmentally proceeded against by that organisation. He has also taken the plea that he had submitted resignation application but it was not entertained.

4. The respondents have opposed the appeal. Their case is that the appellant proceeded on casual leave from 29‑6‑1984 to 2‑7‑1984 and he did not turn up thereafter but sent applications for extension of leave on the ground of illness of his wife but his leave was not granted and he failed to resume duty and, therefore, proceedings under E&D Rules were taken against him.

5. The learned counsel for the appellant made pointation of several events which took place during the process of proceedings against the appellant under the E&D Rules and contended that the proceedings against the appellant were taken in haphazard manner inasmuch as that a charge‑sheet was only shown to the appellant and his signatures were obtained thereon and thereafter some inquiry was conducted in the absence of the appellant and he was only summoned for his interrogation and he was reinstated in service and proceedings were resumed again and he was served show‑cause notices and was ultimately awarded the punishment of dismissal from service. He next contended that the appellant was serving with the FWO on deputation and proceedings under E&D Rules could not be taken against him by the organisation and, therefore, the action taken against the appellant was without lawful authority.

6. The respondents were represented by Mr. Muhammad Sultan Superintendent in the E‑in‑C Branch. This was not proper presentation by the respondents. The departmental representative was able to say only this much that the appellant was serving with the FWO on deputation and the proceedings against him were taken there and the case was referred to the E -in‑C for passing appropriate orders and the impugned order. was passed by the E‑in‑C.

7. The first and foremost question for consideration is the competency of the proceedings under the E&D Rules initiated by the FWO where the appellant was serving on deputation. Procedure for initiation of proceedings under the E&D Rules against the officers sent to serve on deputation is laid down in Rule 9 of the E&D Rules, reproduced here in below:‑‑

9. Procedure of' inquiry against officers lent to Provincial Government. etc.‑‑‑(1) Where the services of a Government servant to whom these rules apply are lent to a Provincial Government or to a local or other authority, in .this rule referred to as the borrowing authority, the borrowing authority shall have the powers of the authority for the purpose of placing him under suspension or requiring him to proceed on leave and of initiating proceedings against him under these rules: Provided that the borrowing authority shall forthwith inform the authority which has lent his services, hereinafter in this rule referred to as the lending authority of the circumstances leading to the order of his suspension or the commencement of the proceedings, as the case may be: Provided further that the borrowing authority shall obtain prior approval of the President before taking any action under these rules against a member of an All‑Pakistan Service or a Class I Service or a holder of a Class I post. (2) If, in the light of the findings in the proceedings taken against the Government servant in terms of sub‑rule (1), the borrowing authority is of opinion that any penalty should be imposed on him, it shall transmit to the lending authority the record of the .proceedings and thereupon the lending authority shall take action as prescribed in these rules." It would appear that the FWO, with which the appellant was serving on deputation, did have power to initiate proceedings under the E&D Rules against him and the record 'of the proceedings was then forwarded to the E‑in‑C, the lending authority in the case of the appellant, for taking appropriate action and the E‑in‑C passed the impugned order of dismissal of the appellant. Rule 9 ibid provides that "the lending authority shall take action as prescribed under these rules". The role of the Authority under the E&D Rules is described in clause (iv) of sub‑rule (1) of Rule 5 and also Rule 6‑A of the (Efficiency and Discipline) Rules. Under clause (iv) of sub‑rule (1) of Rule 5, the authority passes the final order on receiving the proceedings from the authorised officer along with his report in case a major penalty is recommended to be imposed. Under rule 6‑A, the authority had the power of revision as to call for the record of any case pending before or disposed of by the authorised officer and pass such orders in relation thereto as it may deem fit. The expression "the lending authority shall take action as prescribed in these rules" in sub‑rule (2) of Rule 9 of the E & D Rules, reproduced above, therefore, envisages the exercise of the power by the authority as is exercisable by him under the E&D Rules. The proceedings taken by the borrowing authority and the submission of the report by that authority constitute the proceedings that are to be taken by the authorised officer under Rules 5 and 6 of the E&D Rules and the final order has to be passed by the Authority as it may deem proper. In the instant case, the E‑in‑C exercised the power of the authority vested in him under the E&D Rules but he does not seem to have given an opportunity of hearing to the appellant as a measure of doing natural justice. Particularly in the circumstances when he was awarded punishment on the report of the borrowing authority. Therefore, the order suffers from the serious lacuna that the appellant was condemned unheard by the authority and it is liable to be set aside on that account. The appeal is, therefore, allowed and the impugned order is set aside for the reasons recorded above, and the case is remanded to the authority for affording to the appellant opportunity of hearing in person and passing orders afresh within three months. The question of reinstatement of the appellant in service and back benefits shall depend upon the nature of the, fresh order that will have to be passed by the authority. No order is made for costs. A.A./677/Sr. F Case remanded