' QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.---The Appellant was demoted from the post of Superintendent of Police (BPS-18) to the post of Assistant Superintendent of Police (BPS-17) for a period of three years, vide notification dated 25-4-2003 under Removal from Service (Special Powers) Ordinance, 2000. Against this, he preferred a departmental appeal on 8-5-2003, which remained unresponded; hence, the Appellant filed this appeal before the Tribunal under section-4 read with section-2/2A of the Service Tribunals Act of 1973 on 30-7-2003.
2. The facts leading to this appeal are that having been inducted into Govt, service and initially appointed as Assistant Superintendent of Police (BPS-17) in Police Service of Pakistan through Federal Public Service Commission, as a result of combined competitive examination in 1989; the Appellant, who is a Sindh (urban) domiciled officer, was posted at different place in Pakistan in his capacities as Assistant Superintendent of Police (BPS-17) and Senior/Additional Superintendent of Police (BPS-18). In July 2001, he was transferred and posted as Deputy Director Intelligence Bureau (Federal Government) under the Inter-Provincial Transfer/Posting Policy of PSP Officers, as laid down in Establishment Division's letter No.F.1/1200-CP-7 dated 22-7-2000. He accordingly joined his duty at Karachi as Deputy' Director, Intelligence Bureau. It has been stated in the memo. Of appeal that, while he had been discharging his duties satisfactorily, setting his family and admitting his children in the local school of Karachi, he was suddenly and surprisingly transferred from Karachi and his services were placed at the disposal of Baluchistan Government, vide notification 24-9- 2002, contrary to the Inter-Provincial Transfer/Posting Policy, but in spite of his request to transfer him in the difficult circumstances he was lodged in, and, in spite of promise made by Raja Abbas, Additional Secretary, Establishment Division, Islamabad, to re-consider his transfer/posting orders in the light of Inter-Provincial Transfer/Posting Policy, he was issued a show-cause notice dated 21- 2-2003 under the Removal form Service (Special Powers) Ordinance, 2000. Since his request for reconsideration of his transfer/posting, did not find favour with the concerned Authorities, he joined his new assignment at Quetta on 19-3-2003 requesting to withdraw the show-cause notice vide his letter dated (sic) 3-2003, but then he received the impugned order dated 25-42003 whereby he was reduced to the post of Assistant Superintendent (BPS-17), for three years; hence, this appeal with a prayer to set aside the impugned order 25-4-2003 and restore him to the post of Superintendent of Police (BPS-18) w.e.f. 25-4-2003 with all consequential and back-benefits.
3. Written comments have been filed on behalf of the respondents justifying the penalty of reduction from the post of Superintendent of Police (BS-18) to the post of Assistant Superintendent of Police (BS-17) for a period of three years with immediate effect upon the Appellant vide impugned notification dated 25-4-2003.
4. We have heard the learned counsel for the parties and perused the record of the case.
5. The learned Counsel for the Appellant argued that during a service of 14 years prior to the impugned disciplinary action against him, the Appellant had an unblemished career, and always obeying the orders of the Government, served at different places wherever he was transferred; and the transfer of an employee was the prerogative of the employer, but that should have been in accordance with policy, law and rules, that the transfer of the Appellant from I.B., Karachi to Quetta was .In violation of the Inter-Provincial Transfer Policy dated 22-7-2000 inasmuch as he was transferred before competing a period of three years as Deputy Director, I.B., Karachi without informing him about his likely movement as least 45 days in advance as required under para-2(iv) of Inter-Provincial Transfer Policy dated 22-7-2000; that if the transfer of the Appellant was made in the exigencies of service then he should have been considered for posting in the 3rd Province or preferably Sindh Province as required under para.1(i) and (ii) of the said Inter-Provincial Policy, but the notification of transfer dated 25-4-2003 of the Appellant did not show if he was transferred for the above-mentioned reasons; that as required under subsection (2) of section-3 of the Removal from Service (Special Powers) Ordinance, 2000, no second show-cause notice was issued to the Appellant and he was condemned without giving him an opportunity of.Personal hearing; that as per the said policy transfers had to be made generally at the end of academic year so that education of the children of the officers should not suffer, but the transfer of the Appellant was ordered in the month of September, 2002 i.e. During the currency of the academic session which, the respondents have considered, was likely to have disturbed the entire family of the Appellant; that the Appellant had not relinquished the charge due to the promise of Raja Abbas, Additional Secretary, Establishment Division, Islamabad to re-consider his transfer, and in view of that promise, he expected cancellation of his transfer, did not relinquish the charge. Lastly, the learned Counsel for the Appellant stated that in obedience to the order of transfer the Appellant had, soon after the show-cause notice issued to him, joined his place of positing at Quetta; hence, for all the reasons mentioned above the major penalty of reduction from the post of Superintendent of Police (BS-18) to the post of Assistant Superintendent Police (BS-17) for a period of three years with immediate effect imposed upon the Appellant was extremely harsh one and humiliating, reflecting adversely on his reputation and career and also adverse consequences to his family.
6. The learned Counsel for the Respondents argued that the Appellant did not have an unblemished career. He pointed out to a warning issued to the Appellant on 7-4-1999 in connection with administrative requirement to initiate the process of waiver to recover the empties of fired ammunition. Secondly, that a minor penalty of censure was also imposed upon the Appellant vide Notification No.1/67/97-D.1 dated 14-2-2004, which was in connection with certain written complaints against him received from the I.B. Karachi; that the Appellant was transferred owing to such complaints and also for reason that due to shprtage of PSP officers in Govt. Of Balochistan and non-availability of any vacancy in BPS-18 in the Govt. Of Punjab; that the Appellant was repeatedly directed by the I.B., Karachi vide Memorandums No.DHK/1995-A dated 15-10-2001, No. DHK/2075-A/ 2002 dated 23-10-2002, No.DHK/2123-A/2002 dated 29-10-2001 and DHK/2359-A dated 9-12-2002, but he failed to comply with the orders of the Govt. Wilfully and joined at Quetta only after the show-cause notice was issued to him regretting in the reply to the show-cause notice, the delay in joining his duties at Quetta, which reply of his was found unsatisfactory by the Competent Authority. About the regular inquiry into the allegations against the Appellant the learned Counsel for the Respondents stated that it was dispensed with by the Competent Authority under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, as the Respondent was in possession of sufficient evidence of the misconduct of the Appellant. As to personal hearing, the learned Counsel for the Respondents stated that it was not statutory requirement and the Appellant has also not asked for that. He added that if the Appellant had asked for an opportunity of personal hearing, such opportunity would have been provided to him.
Lastly, the learned Counsel for the Respondents stated that the penalty imposed upon the Appellant was proper, in accordance with law. He urged that the appeal of the Appellant, therefore, be dismissed.
7. We have carefully considered the above arguments of both sides.
8. Coming to the unblemished career of the Appellant, suffice it to say that warning like that, as mentioned above, could hardly adversely affect the career of the Appellant. So far as the punishment of censure is concerned, a perusal of record viz: notification of the respondents dated 14-2-2004 (annexure-II with the comments) shows that inquiry on the alleged complaints against the Appellant was initiated on 4-8-2003 i.e. About 11 months after his transfer and penalty of censure was handed down to him vide notification dated 14-2-2004. This clearly shows that penalty of censure was the result of events subsequent to the transfer of the Appellant. Thus, such punishment of censure or the complaints on which it was based were not the case of transfer of the Appellant, as alleged by the Respondents. However, there does not appear: to be any justification on the part of the Appellant to have disobeyed the order of his transfer and not relinquishing the charge in spite of repeated directions on the plea of transfer being against the policy in question. We have noticed that since the day the Appellant was transferred till his posing at Quetta, he had not made any written representation whatsoever to the Authorities pointing out that this transfer was, in any way, violated the policy in question. As per section-10 of the Civil Servants Act of 1973, every civil servant shall be liable to serve anywhere within or outside Pakistan (on equivalent or higher) post under the Federal Government, or any Provincial Government or local authority, on a Corporation or body set up or established by any such Government. Provided that nothing contained in the section shall apply to a civil servant recruited specifically to serve in a particular area or region (which is not the case of the Appellant). Even so, as per transfer policy, which is a letter of Rotation Policy for DMG/PSP Officers dated 22-7-2000, while ordering the inter- provincial transfer for the DMG/PSP officers, welfare aspect of periodic dislocation likely to be faced by such officers and their family has to be taken into consideration along with the factor of 45 days' prior information at the end of the academic year, as pointed out by the learned Counsel for the Appellant, which has, perhaps, not been taken into consideration by the Respondents. However, the rotation policy for DMG/PSP Officers only provides the guidelines and principles, ignoring thereof (not deliberately or malafidely) by the concerned authority would not create a justification for an officer like the Appellant to flout the bona fide order of transfer. Disobeying in the same wilfully of the repeated direction to relinquish the charge, no doubt, amounts to misconduct.
9. Reverting to the legal aspect of the case, we have already observed above that the Competent Authority can dispense with the holding of regular inquiry. In the instant case, there were no serious allegations of fact denied by the Appellant: hence, holding of regular inquiry was not ordered by the Competent Authority. Reliance is placed on PLD 1994 SC 222. The Appellant had admittedly not relinquished the charge in spite of repeated written directions given to him. Such facts, needed not to be proved by any inquiry. However, in view of the assertions of the Appellant that Raja Abbas had promoted to re-consider his case, it could be inquired into by simply referring the matter to him, which could have cleared the matter of any expectancy on the part of the Appellant resulting in delay in compliance of the transfer order issued to him by the Respondents.
10. About the question of personal hearing the numerous Authorities of the apex Court have made personal hearing almost mandatory whether it has been provided in the statute or not. However, in exceptional cases, objection about the personal hearing has not been considered to have vitiated the disciplinary proceedings against the accused. In 2004 PLC (C.S.) 1444, it was held that personal hearing was not necessary in view of confessional statement of the accused Appellant. In 1999 SCMR 1236 it was held that in case personal hearing was not provided in the law the civil servant had not requested for personal hearing nor any prejudice was caused to him the proceedings against him were not vitiated. In 1997 PLC (C.S.) 4 Supreme Court (Full Bench) charge of absence for three years was proved against the accused official on the face of the record; hence, it was held that the principle of natural justice "audi alteram partem" was not violated and in such case even inquiry was not necessary. In 2004 PLC (C.S.) 799 (Supreme Court) leave to appeal was granted to examine the question whether personal hearing, inter alia, was necessary in a case under Removal from Service (Special Powers) Ordinance, 2000.
11. The allegations of disobediences of the lawful orders of the Respondent against the Appellant are proved on the face of record. Moreover, personal hearing has not been provided in the Removal from Service (Special Powers) Ordinance, 2000 and it was also nor sought by the Appellant. Additionally, the Appellant had not been prejudiced in any way on that count. As such plea of the Appellant of not providing personal hearing cannot help him in his defence.
12. So far as not issuing of second show-cause notice to the Appellant is concerned, it may be pointed out such a notice is necessary only after holding a regular inquiry under section 3(1) and
(2) of the Removal from Service (Special Powers) Ordinance, 2000.
13. Lastly, we advert to the question of quantum of punishment, imposed upon the Appellant. The rotation policy of DMG/PSP Officers dated 22-7-2000, no doubt, lays down the guidelines and principles for transfer and posting etc. For such officers, which may not be mandatory in nature having force of law, but being a policy of the Govt., has to be adhered to as for possible. We think, if such policy had been followed in the case of the Appellant, he would not have come that pass.
Anyhow, since he had no justification for disobeying the order of his transfer, in spite, of repeated letters, issued to him, in our view, he has rightly been held guilty of misconduct by the Respondents.
However, considered in the facts and mitigating circumstances of the case revealed above, the major penalty awarded to the Appellant was quite harsh. We, therefore, partly allow the appeal to the extent of modifying the penalty of reduction of the Appellant from the post of Superintendent of Police (BS-18) to the post of Assistant Superintendent of Police (BS-17) for a period of three years immediate effect and convert it to the penalty of withholding of Appellant's increments for 3 years.
No order as to costs.
14. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters as per rule 21 of the Service Tribunals (Procedure) Rules, 1974. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.