SENIOR CIVIL JUDGE Versus BASHIR HUSSAIN

ALI HUSSAIN QAZILBASH, J.‑ ‑This is an appeal by leave from the order of the Service Tribunal, dated 19‑11‑1986, whereby the appeal of Bashir Hussain respondent was accepted and he was ordered to be reinstated in service with full back benefits.

2. Bashir Hussain respondent was a Civil Nazir in the Court of the Senior Civil Judge, Malakand at Batkhela. On 26‑11‑1985 the Senior Civil Judge checked the registers of Nazarat in the presence of the respondent and found that during his tenure of service there was a defalcation of an amount of Rs.28,892. On the basis of the above, an explanation was called for from the respondent, to which a reply was submitted. The Senior Civil Judge put him on notice to deposit the entire amount by 30‑11‑1985 in the Government Treasury, otherwise necessary action would be taken against him. Last notice was given on 7‑12‑1985 for deposit of the outstanding "Sherrif Petty" amount. The respondent then produced receipts for payment of Rs.20,077 duly attested by the Senior Civil Judges and deposited the remaining amount of Rs.8,815 which according to him was lying with him.

3. Bashir Hussain was, however, charge‑sheeted for misconduct on 16‑2‑1986 by the Senior Civil Judge and a reply to the charge‑sheet was submitted by him on 23‑2‑1986 and then another show‑cause notice was issued to him on 8‑3‑1986. After considering the reply of the respondent, the Senior Civil Judge on 16‑3‑1986 ordered the removal of the respondent from service. The appeal of Bashir Hussain from the above order was dismissed by the Distriot and Sessions Judge on 15‑7‑1986. The respondent then moved the Service Tribunal which resulted in the impugned order.

4. Leave in this case was granted to examine whether after rendering a finding of inefficiency against the respondent the Service Tribunal could have set aside the order impugned before it in its entirety or the proper course was to reduce the punishment.

5. We have heard Mian M. Ajmal, Assistant Advocate‑General and Bashir Hussain respondent in person.

6. The Service Tribunal in its order has highlighted the shortcomings in the Nazarat Betkhela Office and also the procedural defects in proceedings conducted against the respondent. The learned counsel for the appellant was pointedly asked if he can defend the order of removal of the respondent in the light of the findings of the Tribunal but he was absolutely unable to put up a convincing defence. As per record, obviously the whole exercise undertaken by the Senior Civil Judge in proceedings against the respondent is in violation of rule 5 of the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, which is mandatory in nature. This being the legal position, the order of the Senior Civil Judge, dated C 16‑3‑1986, cannot be maintained.

7. In the result, the appeal is allowed, the order impugned before us and that of the Senior Civil Judge, dated 16‑3‑1986, are set aside and the case is remanded to the Authority to proceed in the matter in accordance with law.

M.I./S‑147/S Order accordingly.