Rashid Ali Mirza, Member.--While the Appellant was serving as a Manager in Pakistan Steel, he was demoted from the grade of Manager to the grade of Deputy Manager vide order dated 24.10.2002. He preferred a departmental appeal to the Chairman, Pakistan Steel on 31.10.2002, which was rejected vide order dated 8.11.2002.
2. Being aggrieved by and dissatisfied with the order of demotion to lower grade and rejection of his departmental appeal, the Appellant preferred the appeal before this Tribunal on 26.11.2002 under Section 4 read with Section 2-A of Service Tribunals Act, 1973.
3. The brief facts leading to this appeal are that the Appellant was posted as an Incharge, Sub- Zonal Sales Office, Gujranwala vide letter dated 9.7.2001. He was relieved from Marketing Department vide order dated 6.12.2001 and assumed the charge as Incharge, Zonal Sales Office on 13.12.2001. He had obtained 3 days Casual Leave from General Manager (Marketing) for the period from 26.3.2002 to 28.3.2002 with the permission to leave the station on 22.3.2002 23rd to 25th March, 2002 being closed holidays).
4. After reaching at Karachi, the Appellant had consulted his physician on 26.3.2002 who was on the approved panel of the Respondent No,
1. The doctor advised him certain tests and rest of 10 days from 26.3.2002 to 4.4.2002. The Appellant had intimated about his illness to General Manager (Marketing) on the next day i,e, 27.3.2002 which was forwarded to Respondent No,
2. On 4.4.2002 the Appellant visited his physician again who advised him further rest of 10 days from 5/4/2002 to 14.4.2002. The next day (5.4.2002) Appellant had sent information of extension in sick leave to the General Manager (Marketing) which was onwards forwarded to Respondent No,
2. The Appellant was declared fit to resume duty on 13.4.2002 and accordingly had joined his duty on 15.4.2002 (14th April, 2002 being holiday).
5. The Appellant was served with statement of allegations & Charges dated 22.5.2002, reproduced hereunder:-- PAKISTAN STEEL (Finance Department)
NO. FIN/ENQ/5/2002 Mr. A.K. Haji, Dated : 22nd May, 2002 Manager (P. No, 023728)
Marketing Department PAKISTAN STEEL STATEMENT OF ALLEGATION AND CHARGES As per order dated 7.5.2002 passed by the Competent Authority under Section 2(aa) read with Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned has been appointed as an Enquiry Officers to enquire into the following allegations and charges leveled against you; "That you failed to fulfill your obligation as Incharge, Sub-Zonal Sales Office Gujranwala diligently and violated the laid down channel of command as notified vide memorandum No, DIR (M)/01/2001/2886 dated 26.7.2001 while availing of three days Casual Leave w,e,f, 26.3.2002 to 28.3.2002.
You managed and submitted photocopies of two Medical Certificates from Prof. Mashoor A. Shah, advising you ten days rest w,e,f, 26.3.2002 and 4.4.2002 against the procedure of availing medical leave as mentioned under clause 8.4(d) of Pakistan Steel Officers Leave Rules.
That your above acts of breach of Service Rules are prejudicial to good service discipline.
2. As the above allegations are prima facie reflective of misconduct under Section 3(1)(b) of the Removal from Service (Special Powers) Ordinance 2000 as amended, the competent authority has ordered to hold enquiry into the matter and appointed the undersigned as Enquiry Officer to scrutinize your conduct with respect to the above allegations.
3. Now therefore, in exercise of powers conferred under Section 5(1)(e) of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned hereby calls upon you to put in a written defence i,e, to explain your position in regard to the above allegations and charges in writing within seven days of the receipt of this communication.
4. On receipt of your explanation, you will be informed about the at, time and place of the enquiry.
In case your explanation does not reach the undersigned within the period of seven days it will be assumed that your are not interested in putting written defence and the undersigned will proceed with the enquiry, of which date, place and time will be duly initiated to you.
Sd/- (M. SIRAJULLAH KHAN)
DGM (Finance)
Enquiry Officer"
6. The Appellant submitted his reply into the charges and denied allegations vide his reply dated 28.5.2002. He was issued another statement of allegations and charges dated 30.8.2002 on the same grounds reproduced hereunder:-- "PAKISTAN STEEL (Inspection Department)
NO. ID/ENQ- AKH/2002/3715 Dated : 30.8.2002 Mr. A.K. Haji, Manager (P.No, 023728)
Marketing Department PAKISTAN STEEL STATEMENT OF ALLEGATION AND CHARGES As per order dated 29.8.2002 passed by the Competent Authority under Section 2(aa) read with Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned has been appointed as an Enquiry Officer to enquire into the following allegations and charges leveled against you; "That you failed to fulfill your obligation as Incharge, Sub-Zonal Sales Office Gujranwala diligently and violated the laid down channel of command as notified vide Memorandum No, DIR (M)/01/2001/2886 dated 26.7.2001 while availing of three days Casual Leave w,e,f, 26.3.2002 to 28.3.2002.
You managed and submitted photocopies of two Medical Certificates from Prof. Mashoor A. Shah, advising you ten days rest w,e,f, 26.3.2002 and 4.4.2002 against the procedure of availing medical leave as mentioned under clause 8.4(d) of Pakistan Steel Officers Leave Rules.
That your above acts of breach of Service Rules are prejudicial to good service discipline.
4. As the above allegations are prima facie reflective of misconduct under Section 3(1)(b) of the Removal from Service (Special Powers) Ordinance 2000 as amended, the competent authority has ordered to hold enquiry into the matter and appointed the undersigned as Enquity Officer to scrutinize your conduct with respect to the above allegations.
5. Now therefore, in exercise of powers conferred under Section 5(1)(e) of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned hereby calls upon you to put in a written defence i,e, to explain you position in regard to the above allegations and charges in writing within seven days of the receipt of this communication.
6. On receipt of your explanation, you will be informed about the ate, time and place of the enquiry.
In case your explanation does not reach the undersigned within the period of seven days it will be assumed that your are not interested in putting written defence and the undersigned will proceed with the enquiry, of which date, place and time will be duly intimated to you.
Sd/- (SYED WAJAHAT HUSSAIN)
Enquiry Officer DGM/Incharge (Inspection)"
7. The Appellant had raised objection for holding denovo enquiry and had demanded copy of the enquiry report of the earlier enquiry officer vide his applications dated 3.9.2002, 5.9.2002 and 10.9.2002 but his objection was overruled by the Respondent No, 2 vide his letters dated 5.9.2002 and 13.9.2002. After rejection of his plea, the Appellant submitted his reply into the allegations and charges vide his reply dated 9.9.2002 and had denied the charges. The Appellant had made an application dated 3.10.2002 to the Respondent No, 2 wherein he had requested to direct the enquiry officer for calling the statements of the then two General Managers (Marketing) namely Mr. S. Irshad Rizvi and Mr. Khalid M. Akhtar or to place on record their earlier statements called by the previous enquiry officer Mr. Sirajullah Khan DGM (Finance) but his request was declined by Respondent No, 2 vide order dated 8.10.2002.
8. The Appellant was served with show-cause notice dated 6.10.2002. He was not provided with copy of the enquiry report despite repeated requests in writing vide his applications dated 18.10.2002 and 21.10.2002. He submitted reply to the show-cause notice on 22.10.2002 at 1645 houls acknowledged by concerned receiving persons, wherein he had denied the charges. Whereas, the competent authority had accorded personal hearing at 10.00 a.m. in ,the morning supported with Gate Pass dated 22.10.2002. Thus, the malafide intention on the part of Respondents is crystal clear.
The Appellant was demoted from the grade of Manager to Deputy Manager vide order dated 24.10.2002.
9. We have heard the learned counsels for the parties and perused the authorities cited by them.
10.Reiterating the facts of the appeals as already mentioned above, the Learned Counsel for the Appellant stated that the Appellant had left Gujranwala after sanction of the Casual Leave w,e,f, 26.3.2002 to 28.3.2002 with the permission to leave the station on 22.3.2002 due to 23rd and 25th being holidays. The Appellant while staying at Karachi fell ill and approached his panel specialist on 26.3.2002 who advised him rest for 10 days, intimation thereof was furnished by the Appellant to the General Manager (Marketing) the very next day. The Appellant again visited his physician on 4.4.2004 who advised him further rest of 10 days from 5.4.2002 to 14.4.2002 which was also intimated by the Appellant to the General Manager (marketing). The Appellant resumed his duty on 15.4.2002. The Appellant was issued statement of allegation dated 22.5.2002 by DGM (Finance) who was appointed as enquiry officer, which was replied by the appellant and the charges were denied by him. The enquiry officer submitted his findings but as it did not meet the expectations of the management, the Appellant was issued another statement of allegation and charge by Mr. Syed Wajahat Hussain DGM/Incharge (Inspection) wherein the earlier charges were repeated.
11.The learned counsel for Appellant contended that the Appellant was not found guilty of charge by first enquiry officer Mr. M. Sirajullah Khan DGM (Finance) and in the denovo Inquiry Mr. Wajahat Hussain Inquiry Officer found Appellant partially guilty in one charge, whereas the other enquiry officer did not call the statements of two General Managers (Marketing) as was done by earlier enquiry officer who had placed their statements on record. On the directive of this Tribunal the Respondents produced a copy of enquiry report of Mr. M. Sirajullah Khan, wherein the point-wise replies (of two General Managers of Marketing Department) to the queries raised by enquiry officers have been quoted. Mr. Khalid M. Akhtar ex-GM (Marketing) vide his letter No, CD 04/2002 dated 29.7.2002 addressed to DGM (Finance)/Enquiry Officer Mr. Sirajullah Khan, has confirmed that the Appellant had been dealing directly in all official and leave matters without involvement of Incharge, ZSO (C) Lahore. In reply the queries of enquiry officer Mr. Khalid M. Akhtar further clarified that both Incharge ZSO (Central) and ZSO Gujranawala i,e, Appellant, have been named Independent Incharges vide Circular No, A&P/Org. Estt/01 dated 7.9.2001 and none is reporting to each other rather both are reporting and receiving instructions directly from GM (Marketing).
Similar corroboration has also been made by Mr. S. Irshad Rizvi, the then General Manager Marketing Department in reply to queries of enquiry officer Mr. M. Sirajullah Khan DGM (Finance). He also referred to Central Administration Circular dated 7.9.2001 by virtue whereof Incharge Zonal Sales Office (Central) and Incharge Zonal Sales Office Gujranwala have been notified as independent Incharge on page # 2 of the said circular. It is clear cut understood that none is reporting to each other. According to him (Mr. S. Irshad Rizvi ex-General Manager Marketing department), the memorandum issued from the chamber of Director (Marketing) dated 26.7.2001 was no more valid. He further clarified that Mr. Haji was posted at Gujranwala ZSO Office as Incharge vide Marketing Department's Office Order dated 6.12.2001 and his casual leave applications and official notes/correspondence were treated in the capacity of Incharge Zonal Sales Office Gujranwala. Learned Counsel for the Appellant further contended that the show-cause notice as also the impugned order were issued by the Incharge A&P who is neither authority nor authorized officer under the Ordinance and below the rank of the appointing authority, hence not competent to do so. In support of his contentions he relied on Chapter VI of Pakistan Officers Service Rules & Regulations.
12.According to the Counsel for Appellant, the enquiry officer had acted under fear because in a number of cases the enquiry officers were taken to task and inflicted major penalties for not dancing at the tune of the management and in this connection has cited the example of Mr. Muhammad Siddiq Khokhar Manager who was at first demoted to lower grade for his conduct as an enquiry officer and on appeal the penalty of demotion was converted into reduction by 05 stages in Time Scale which was set aside in Appeal No, 980 (K)(CE)/2002. He further contended that the copy of enquiry report was not provided alongwith show-cause notice which is mandatory requirement of law. Regarding no confidence he relied upon the judgment of this Tribunal in Appeal No, 1511 (K)(CE)/2001 (Dr. Mushtaq vs. Pakistan Steel). On witnesses having not been examined on oath as required under the law, PLD 1994 SC 275 was cited.
13. The Learned Counsel for Respondents stated that the Appellant failed to fulfill his obligations as Incharge Sub-Zonal Sales Office, Gujranwala. He did not follow the laid down channel of command while availing 3 days casual leave with effect from 26.3.2002 to 28.3.2002. The Learned Counsel for Respondents further contended that the Appellant managed and submitted photocopies of two medical certificates from Prof. Mashoor Alam Shah advising him 10 days rest with effect from 26.3.2002 to 4.4.2002 against the procedure of availing the medical leave. The appellant was issued statement of allegations and charges dated 30.8.2002 by enquiry officer requiring him to put in his written defence and to explain his position with regard to the allegations and charges leveled against him. The enquiry was conducted by enquiry officer as per rules and procedure and the enquiry officer found the Appellant partially guilty of the charges. The action of the respondents was in accordance with the law. The appellant was provided fair chance of defence during the enquiry and was also afforded an opportunity of personal hearing by the competent authority but he could not clarify his position. Accordingly the competent authority passed the orders to demote' the Appellant from the grade of Manager to Deputy Manager, which according to the Learned Counsel of the respondents, was justified and proper. In support of his arguments the Learned Counsel for Respondents, however, did not quote a single judgment of superior Courts to justify the action of the respondents.
14.We have carefully considered the above arguments of learned Counsel for the parties and the authorities cited by them.
15.A perusal of the record shows that the Appellant was posted as Incharge Sub-ZSO (Gujranwala) vide transfer/posting order dated 9.7.2001. Accordingly he was directed to report join his duty at Sub-Zonal Sales Office Gujranwala as an Incharge, vide General Manager Marketing order dated 6.12.2001. The Appellant resumed his duty as Manager/Incharge ZSO (Gujranwala) on 13.12.2001.
16.The Appellant had applied for 3 days Casual Leave well in advance on 15.3.2002 effective from 26.3.2002 to 28.3.2002 for visiting parents and family at Karachi, with the permission to leave the station on 22.3.2002 which was sanctioned by General Manager (Marketing) on 18.3.2002. While his stay at Karachi he fell ill and consulted panel doctor who advised certain tests and rest for 10 days effective from 26.3.2002. He again visited his treating physician on 4.4.2002 who advised another 10 days rest from 4.4.2002. The Appellant had furnished intimation of his sickness to General Manager (Marketing) vide his applications dated 27.3.2002 and 5.4.2002 respectively. He jointed his duty on 15.4.2002.
17.We have noted the skipping of the learned Counsel for respondents by not referring the first statement of allegation dated 22.5.2002 issued to the Appellant by the enquiry officer Mr. M.
Sirajullah Khan DGM (Finance) and outcome of that enquiry. We have noted capricious silence of the Learned Counsel for Respondents for citing any reason for discarding the findings of the earlier enquiry officers and reasons of holding denovo enquiry. Contrary to the allegations & charges that the Appellant had violated channel of command in availing leave, there is written corroboration from two General Managers of Marketing Department that the Contrary to the allegations & charges that the Appellant had violated channel of command in availing leave, there is written corroboration from two General Managers of Marketing Department that the Appellant had been performing his job independently was reporting to the General Manager (Marketing) directly. This leaves hardly any doubt that the action of respondents, thereby demoting the Appellant was not justified, as he had applied for leave in advance which . was sanctioned by General Manager (Marketing). We therefore, do not subscribe to the penal action taken by the Respondents against the Appellant on the basis of self assumptions. We have also noted violation of rules by not providing copy of enquiry report to the Appellant alongwith show-cause notice. For this purpose we rely the ruling of their lordships recorded in PLD 1981 SC 176, SCM R 1987 1562 & 1774 and PLC 1985
(SC) 478.
18. The show-cause notice issued to the Appellant is also fraught with legal short comings giving the fact that it was issued by Incharge (A&P) who in our opinion was not competent to issue the show-cause notice, as the Service Rules of the Respondent Establishment 6.3 vested the powers to concerned Director in respect of Manager, therefore, the disciplinary action against the appellant stood vitiated. The proceedings against the Appellant, however, suffer from a major legal flaw that while demoting the Appellant from the post of the Manager to that of the Deputy Manager, he was issued show-cause notice by an incompetent authority and a copy of the Enquiry Report was not given to the Appellant alongwith the show-cause notice which are mandatory requirements.
Failure to issue show-cause notice proposing any penalty to the Appellant is a major deficiency which is not sustainable in any legal scrutiny as it is gross violation of the principle of natural justice enunciated in numerous judgments of the Hon'ble Supreme Court.
19.In view of the facts and circumstances and for the reasons mentioned above, we allow this appeal and set-aside the impugned order of demotion dated 24.10.2002. Consequently, we direct the Respondents to restore the grade of Manager held by the Appellant before issuance of the impugned order dated 24.10.2002 with all consequential back benefits.
20.No order as to costs.
21.Copies of Judgement be sent to the parties under registered cover and to the irrelevant quarters under Rule 21 of Service Tribunal (Procedure) Rules 1974.