' NAZIM HUSSAIN SIDDIQUI, C.J.---Civil Petitions Nos.318 of 2002 and 373-K of 2002 are connected matters and arise from' the same judgment, dated 12-12-2001 of learned Federal Service Tribunal, Islamabad, delivered in .Appeal No.24(K)(CS) of 2000, whereby the appeal preferred by Muhammad Umer Morio was allowed in the way that penalty of reversion from B-19 to B-18 was set aside. Instead he was censured with all back benefits viz. Difference of pay and allowances.
2. In Civil Petition. No.318 of 2002 Government of Pakistan, Secretary Establishment Division and others are the petitioners, hereinafter referred to as "the appellants" and Muhammad Umer Morio is the respondent, hereinafter referred to as "the respondent". In Civil Petition No.373-K of 2002, Muhammad Umer Morio is the petitioner and Government of Pakistan and others are respondents.
3. The facts relevant for decision of these matters are that respondent, Muhammad Umer Morio was inducted in Police Service of Pakistan as A.S.P. (BS-17) with effect from 5-3-1975 and was promoted to the post of Superintendent of Police (BS_18) on 17-3-1990. He was granted Selection Grade BS-19 w.e.f. 3-3-1991. Later on, his services were transferred to Government of Sindh on 9-4- 1994. While serving in Sindh Police, he applied for 15 days' leave to perform Umra, which was sanctioned. Later on, he applied for 60 days' leave to perform Hajj, which was also granted and he availed it from 8-4-1997. The leave so granted expired on 6-6-1997 and he was due to report for duty on 7-6-1997. Instead of joining his duties,' he proceeded to Germany and then to USA without obtaining permission from the concerned authorities. According to him, he had gone to Germany and USA for medical treatment.
4. It is significant to note that the respondent had obtained visa in the year 1996 to visit Germany and USA within five years. He applied for extension of leave for 90 days from USA after more than a week stay there. His prayer for extension of leave was rejected by the Government of Sindh and it was noted that he was not allowed ex-Pakistan leave either for Germany or USA and he should have returned back to the country after performing Hajj.
5. Government of Pakistan learnt that the respondent was corrupt and he was placed under suspension w.e.f. 10-4-1997. Copies of Notification, dated 10-4-1997 and 11-7-1997 relating to his suspension and 22-5-1997 relating to the charge-sheet/statement of allegations were sent to him at his address in USA and also at his addressed in Karachi. Two rounds of disciplinary proceedings were held against him. In The first round, he was charge Sheeted on 22-5-1997 on the specific charges of corruption and misconduct by the then Authorized Officer/Chief Secretary, Government of Sindh under the Government Servants (E&D) Rules, 1973. He, however, did not participate in the disciplinary proceedings wilfully and tried to delay its outcome.
6. He remained in Germany and USA from 2-5-1997 to 12-10-1997 without sanctioned leave and permission from the competent authority. The show-cause notice was issued by the Authorized Officer and he was heard in person on 15-10-1997. All legal formalities were completed and therefore, vide Notification dated 11-9-1999 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, the relevant authority imposed upon him the major penalty of reduction to the lower stage in rank by demoting him from Selection Grade BS-19 to BS-18 of PSP in terms of Rule 4(1)(b)(i) of the Government Servants (E&D) Rules, 1973 with immediate effect.
7. It is' contended on behalf of the Government/appellants that learned Tribunal has failed to appreciate the facts in their true perspective and reached wrong conclusion. Further, it is urged that the Tribunal erred by setting aside the penalty of reduction in rank on the plea that period of that particular penalty was not specified. Learned counsel also contends that the respondent was granted 60 days ex-Pakistan leave for specific purpose to perform Hajj and was not permitted to visit Germany or USA and this being factual position he was not at all entitled to proceed to those two countries without having obtained such permission from the relevant authorities. Learned counsel pointed out that the Tribunal in para.8 of the impugned judgment held that though the respondent had not conducted himself as a civil servant, yet, the appeal was accepted and the penalty was modified, which, in fact, is absolutely improper and insufficient, looking to the nature of misconduct of the respondent. As regards the omission to specify period of penalty of reduction in rank, learned counsel referred FR-29 and stated that necessary fresh instructions vide O.M.
No.16/18/94-R-2, dated 9-9-1998 have already been issued under which the matter would be dealt with. Commenting upon the case, cited by the Tribunal on behalf of the respondent viz. Ch. Tawanger Hussain v. Director, Manpower and Training Punjab and another 1983 PLC (C.S.) 1011, learned counsel for the appellants submitted that the facts of the reported case are entirely different and the rule laid down therein is not attracted to the circumstances of this case.
8. As against above, it is contended on behalf of respondent, Muhammad Umer Morio that the Tribunal seriously erred in censuring him after having found that under compelling circumstances, he had to proceed from Saudi Arabia to Germany and U.S.A for getting treatment, as there was every apprehension of his becoming paralysed and permanently disabled, as during the course of Hajj fire broke out in the Pakistani Camp at Mina on 16-4-1997, where so many persons including the respondent were injured and sustained serious injuries. Further, it is stated that the respondent was advised to consult the orthopedic/neuro-surgeon. Learned . Counsel submitted that the respondent both physically and mentally was disturbed and in such state of affairs he had no time to get prior permission for proceeding to Germany or USA. It is further submitted that the respondent came back to Pakistan on 12-12-1997 and reported for duty on the following day.
9. The record reveals that the respondent in spite of alleged fire had performed Hajj and thereafter, proceeded to Germany and USA. Admittedly, he had not obtained prior permission from the concerned authority for visiting said countries. It is significant to note that he had already obtained visa for those two countries in the year 1996. He had ample time before proceeding to said countries to inform the relevant authorities about his departure for there. The circumstances reveal that deliberately he did not inform the Government of Pakistan for the reasons best known to him.
This was a gross misconduct on his part and even on this charge he could be removed/dismissed from service. The department was lenient when it had only reverted him from BS-19 to BS-18. When ex-Pakistan leave is granted, an employee can only visit to the country for which said leave is granted. It is not his sweet will to visit other countries. The respondent being a Police Officer must have shown by his conduct that he belonged to a disciplined force of Pakistan. The plea that on 10- 4-1997 he was placed under suspension at the instance of Mr. Saeed Mandi, the then Chief Secretary, Government of Sindh is not substantiated by the evidence worth relying and ex facie, it appears to be a wild allegation. The respondent is guilty of misconduct as was held by the department.
10. On 1-12-2004, the petitions were converted into appeals,. The judgment, dated 12-12-2001 of the Federal Service Tribunal was set aside and the appeal of the department was allowed while that of the IA respondent was dismissed.
11. While writing the judgment, we have gone through Fundamental Rules 29 and the O.M.
No.16/18/94-R-2, dated 9-9-1998. F.R. 29 requires that if a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall B operate to postpone future increments and if so, to what extent.
Above O.M. Says that it is necessary that while passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale, the requirements prescribed in F.R. 29 should be strictly observed.
12. In Ajmal Shah v. Government of N.-W.F.P. PLD 1982 Pesh. 165, Asgharuddin v. Ministry of Communication 1989 PLC (C.S.) 134, Abdul Majid v. WAPDA 1989 PLC (C.S.) 469, Muhammad Arshad v. WAPDA 1993 PLC (C.S.) 1082, Zafar Yasin v. Prime Minister of Pakistan 2002 SCMR 775 and Tanvir Ahmed v. Chief Secretary 2004 SCMR 647, orders imposing penalty of reduction to lower grade or post or to a lower stage in time-scale passed by the authority, were not upheld as the same did not specify the period for which such penalty would remain effective. In Ajmal Shah's case, the Peshawar High Court set aside the order imposing the penalty of reduction to a lower grade or post inter alia on the ground that it did not disclose the period of the penalty. In Asgharuddin's case, the Service Tribunal held that the penalty of reduction would remain operative for a period of three years form the date of the order. In Abdul Majid's case, the Service Tribunal modified the order of the authority to the extent that it would be effective for a period of five years form the date of its passage and would not operate to postpone future increments. In Muhammad Arshed's case, the Service Tribunal held that the order of reduction would remain operative for two years. In Zafar Yasin's case, this Court, on the uncontroverted request of the petitioner's own counsel remitted the case to the Tribunal to fill in the lacuna. In Tanvir Ahmed's case, this Court modified the judgment of the Service Tribunal by restricting the punishment inflicted upon the petitioner to a period of four years.
13. It is clear that, the order, dated 11-9-1999 passed by the authority did not specify the period for which it would remain effective. Accordingly, considering the facts and circumstances of this case, we modify the order dated 11-9-1999 to the extent that it would remain effective for a period of five years from the date of its passage in the light of F.R.
29. Resultantly, both the petitions are converted into appeals and stood disposed of in above terms.
14. These are the detailed reasons for the short order announced on 1-12-2004, which stands modified accordingly.
Order ccordingly.