JUDGMENT RASHID ALL MIRZA, MEMBER.- Since common question of facts and law is involved in both the above appeals, these are being disposed of by this single common judgment.
2. Being aggrieved by the impugned orders dated 28.06.2002, the Appellant, who was serving as Deputy General Manager in the Pakistan Steel, was reduced to one stage lower in the time scale with immediate effect, which has been challenged by the Appellant. The impugned order reads as under:- PAKISTAN STEEL (CENTRAL ADMINISTRATION)
No. CAP-DGM. 2002/PA/3670/E dated, 28th June,2006.
MEMORANDUM Subject:- REDUCTION OF STAGES LOWER IN THE TIME SCALE.
Mr. Muhammad Aslam Khan, Deputy General Manager (P. No. 006459) of WS&SS Department is informed that as a result of domestic enquiry, he has been held guilty of the charges as contained in the Statement of Allegations and Charges No. GM (ESB)/2001/507-, dated 29.11.2001. He was given an Opportunity to show cause within 07 days regarding imposition of major penalty upon him vide Show-Cause Notice No. A&P/Eng Cell/2002/422 dated 26.02.2002 but he failed submit reply to Show-Cause Notice within- stipulated time. He was also granted personal hearing by the Competent Authority to explain his conduct on 27.06.2002 and 28.06.2002, but he failed to avail the opportunity. However, taking a lenient view, the Competent Authority has decided to drop further disciplinary action by awarding him the punishment of reduction to one (01) stage lower in the time scale.
2. Accordingly, he stands reduced to one (01) stage lower in the time scale with immediate effect.
Sd /- (HAMID PERVEZ)
INCHARGE (A&P)
Mr. Muhammad Aslam Khan, Deputy General Manager (P. No. 006549), WS&SS Department.
PAKISTAN STEEL.
The appellant submitted departmental appeal dated 12.07.2002 which remained un-responded hence he approached this Tribunal by filing the present appeals on 09.10.2002 against the said order, praying to set aside the impugned order dated 28.06.2002 and restore him to his Original position and stage in the time scale, which he. Was enjoying prior to the passing of the impugned order with all back benefits.
3. Brief facts giving rise to the above appeals are that the Appellant, who was initially appointed, as Assistant Executive Engineer in Pakistan Steel by the respondent No. 2 on 21.11.1973, was promoted as Executive Engineer on 23.09.1976 due to his remarkable performance he was then promoted as Superintending Engineer on 01.06.1982. Thereafter on his satisfactory and meritorious service with respondent No. 2, he was promoted as Deputy General Manager on 23.5.1989. The appellant performed his duties/assignments with entire satisfaction of his superiors and during service obtained Master of Civil Engineering degree and is the only Master degree holder in his field in Pakistan Steel. The appellant was promoted as General Manager (Management Grade) on 30.09.1998 after recommendation in the DPC conveyed to the M O. I & P vide Letter No. 3 (1) PR-1/96, dated 14.10.1998 along with the other officers which was concurred by the Board of Directors appointed by . Govt, of Pakistan in their meeting dated 22.01.1999 and conveyed to the Appellant vide letter dated 09.11.1999.
4. We have heard the appellant in person and the learned counsel for the respondents and also peruse the written comments, filed on behalf of the respondents and have also gone through the authorities cited at Bar.
5. The appellant in person argued that he was posted in A&P Department on 26.01.2000 after giving joining on 28.01.2000. He was directed to mark the daily attendance in MTC. Accordingly, he marked his daily attendance in MTC from 28.01.2000 to 19.12.2000 (F/N). He further contended that in July, 2000 Director (A&P) instructed that all under posting DGM/GM would mark their attendance in Dir (A&P) Secretariat. He contended that he complied with the instruction of Dir (A&P) and started marking his attendance in Dir (A&P) Secretariat as well as in MTC. The appellant contended that on September 22, 2000 a copy of the decision was conveyed under signature of TSO to chairman for attachment of three officers and copies marked to Director (A&P), Director (Production) and In charge (A&P), which is reproduced below: PAKISTAN STEEL CHAIRMAN'S SECRETARIAT No TSO/CH-01/2000/9676 22nd, September, 2002.
Subject:- Attachment of Officers The competent authority has decided to attach M/s. Muhammad Habib GM, M. Muzafarul Islam GM and M. Aslam Khan DGM with Director (Production) with immediate effect.
2. The offices of these officers will be located in COBP, SMD and PAT Buildings respectively. The officers will mark their attendance in the above departments/complexes and perform specific task/assignments given to them by Director (Production ) from time to time.
3. Compliance, report be submitted to this office for information of the Chairman.
Sd /- (WASIF MEHMOOD)'
TSO to Chairman."
The appellant contended that when formal Transfer/Posting Order was not issued from A&P Department, he requested Director (A&P) vide note dated 25.09.2000 for orders. He stated that Director (A&P) returned his note by putting the remarks reproduced below:- "NOT BEING RELIEVED. THERE IS NOTHING LIKE ATTACHEMENT RULES." which is placed at Annexure 'H' Page-34.
He further contended that Director (A&P) informed that he would take up the issue with Chairman and in his support he placed before the Tribunal copy of the note written by Director (A&P) on 27th September 2000 and is placed On record. The appellant contended . That since he was not relieved, he continued to report to A&P Directorate and was accordingly being paid the salary on the basis of attendance submitted by A&P Department. He further contended that in the morning of 14.12.2000, three letters were received. Relevant extract whereof is reproduced below:- "Charge Sheet under sub-section (1) (b) of section 3 of the Removal from Service (Special Powers)
Ordinance, 2000 (XVII 2000), dated 27.5.2000 with the allegation that I was absenting from place of duty.
Charge sheet under sub-section (1)(b) of section 3 of the Removal from Service (Special Powers)
Ordinance, 2000 (XVII 2000) dated 27.5.2000 with the allegation for defying lawful order of the Competent Authority.
Suspension Order."
The appellant contended that the letters bear the signature of In charge (A&P) Hamid Pervez, as the authority to issue such letters rests with Director (A&P) under Service Rules. He further contended that on the morning of 19.12.2000, Asstt. Manager (Security). Been informed that the Appellant's entry has been banned in the Head. Office on instruction of Chairman, Pakistan Steel and requested the appellant to immediately leave the Head Office. The appellant further contended that after half an hour, a Memorandum No. CAP-2/Misc/2K/9169 dated 19.12.2000 under signature of DGM/In charge (A&P) Hamid Pervez, was received directing him to report to Director (Production), said letter is reproduced below:- PAKISTAN STEEL CENTRAL ADMINISTRATION No. CAP-2/Misc/2K/9/9169, dated 19.12.2000 MEMORANDUM It has-been directed by the Competent Authority to advise you to report to Director (Production) as already directed vide Chairman Secretariat's letter No: TSO/CH-01/2000/9676, dated 22nd September, 2000 and vacate the office of General Manager (A&P) immediately.
Sd/- (HAMID PERVEZ)
In charge (A&P)
Mr. Muhammad Aslam Khan- Deputy General Manager (P. No. 006469), (Under Suspension), - PAKISTAN STEEL."
He contended that the matter was reported to Director (A&P) in writing. The relevant portion of the extract of Director (A&P) is reproduced below:-- '
"Report tb Director (Production) as directed now."
The relevant note sheet is placed on record at Annex 'K' Page-37."
The appellant further contented that the salary for the months of September,. October, November and December, 2000 was prepared on the basis of the attendance sent by In charge (A&P).
Himself. He stated that the salary for the months of September to December 2000 already paid on the basis of attendance was recovered illegally by the Management. The appellant further contended that it is clear that he was not relieved to move to Production Directorate on September 25, 2000. He contended that on receipt of the proper order on 19.12.2000 by Director (A&P), the appellant immediately moved to Production Directorate on 19.12,2000 (F/N) without wasting time.
He further contended that at no stage Appellant. Violated the rules and regulations. He further stated that there could be no absence without leave of absence unless one is relieved and permitted by the superior Officer; He said this is according to law, rules regulations, norms and practice. He said that if employees were allowed to move without being relieved or without orders of superior^ only confusion and chaos in respect of discipline would be generated in an organization. He contended that the enquiry proceeding commenced with issuance of enquire notice dated 15.12.2000 by Convener of the Committee, ex-Director Capt. M. Haroon Khan and Member Mr: K.A. Sharma on charges reproduced below:- "Charge-Sheet under sub-section (1)(b) of section 3 of the Removal from Service (Special Powers)
Ordinance-2000 (XVII of 2000), dated 27.5.2000 with the allegation that I was absenting from place of duty."
He stated that another notice was issued on charges of allegation by Mr. Rashed Ahmed Zafar, GM
(ESB) vide GM(ESB)2001 /505 dated 29.11.2001 under Removal from Service (Special Powers)
Ordinance 2000. He contended that the Enquiry Officer Mr. Rashed Ahmed Zafar was junior to him in service and seniority, for which the appellant pointed out in his letter dated 03.12.2002 which is placed On record at 'E' pages 23-24. He stated that the charges established in the enquiry which are ipso facto inconclusive without providing opportunity of proper defence. He stated that neither Enquiry Report was provided before inflicting the penalty nor personal hearing was accorded.
When all is said, he said that the Charge-Sheet based on the similar charges was issued to Mr. Muhammad, Habib, GM, whose name is mentioned in the Attachment Order but the same had been withdrawn by the Management. He contended that he may be restored to his original position and stage in the Time Scale which the appellant enjoyed prior to passing of the impugned order dated 28.06.2002 with all back benefits.
4. The learned counsel for the respondent argued that the Appellant refused to give joining on TSO to Chairman Attachment Letter No. TSO/CH-D1/9676, dated 22.09.2000 and he remained absent from duty from 22.09.2000 to 19.12.2000.
5. We have carefully considered the above arguments of both sides. We do not find any force in the contention of the learned counsel for the respondent that the appellant remained absent from 22.09.2000 to 19.12.2000 or refused to Joint Production Directorate. During the course of argument, the appellant placed before the tribunal the noting of Director (A&P) regarding attachment of officers to the Chairman which is reproduced below:- CONFIDENTIAL PAKISTAN STEEL A&P Directorate Subject: Attachment of Officers Chairman's Sectt. Letter TSO/CH-D1/9676, dated 22nd September, 2000 refers:
1. The proposed attachment of officers with Director (Prod is neither desirable nor recommended for the following reasons:-
(a) Mr. Muhammad Habib, GM, The officer was removed from his appointment of GM (SPMD) and directed to report to A&P Deptt. Having been rendered surplus by Director (TS) and also having no use for him by Director (Production). Accordingly a case for adjusting the officer as GM (A&P) in an existing vacancy was initiated considering his. Usefulness in the A&P Department which was not approved. His placing in GOBP under a much junior officer is not an accepted practice in personnel handling which makes our action questionable, consequently it better be avoided. Attachment with Director (Production) 'is not proper in light of his earlier refusal to accept him: besides, it is not in consonance With standard Government procedure.
(b) Mr. Muzaffar Islam, GM. The Officer was removed from Water and Power Deptt. On a report initiated by the Security Deptt. The allegation, which resulted in submission of his w ' VRF on 23rd June 2000, surfaced several months after the alleged incident was that the officer had not paid for 65 Kg fish valued at Rs. 1950.00 which doesn't seem probable the way it unfolded and appears to be contrived. The apparently was as a result of the Officer's pointing out serious irregularities in his Deptt. As a result of this report the officer felt humiliated since his subordinates continued serving unabated in the same. Department while he was removed from his post. After careful consideration, the officer realized that he had acted in a mentally agitated condition, so he applied for cancellation on 27th July, 2000. The officer also met the Army Monitoring Team who have recommended that the case be reconsidered/reviewed arid justice be done to the officer. It is my considered recommendation that the VRF of the officer, which was submitted under extreme humiliation and desperation suffered by the officer for pointing out irregularities in Water and Power Deptt. Must be rejected. A number of precedents already exist as in cases of many other officers like Manager (Horticulture) without even recommendation of the concerned Director.
Besides, his removal would jeopardize outcome of enquiry into the report irregularities pointed out by the officer , and supported also by the Internal Audit Report.
(a) Mr. Muhammad Aslam, PGM: The officer was demoted, suspended, charge-sheeted and issued recovery notices within a span of one week starting 13th January 2000. The officer accordingly filed a petition in the High Court of Sindh on 18th January, 2000 which is pending . Hearing and hence the matter is sub-judice. The actions already taken against the officer have been hasty and far more severe than the action taken by Pakistan Steel in cases which are far more grave in nature as pointed out by the Internal Audit Department. MOIP have also observed recently about reversion of the officer without prior approval of the MOIP which is being replied separately, Any further action like attachment of the officer with PAT Buildings headed by a Junior Officer as ordered would be inappropriate at this stage.
2. The placement of the officers in COBP, SMD and PAT Buildings under In charges much junior to them requiring the officers to mark their attendance in above departments amounts to outright humiliation and regarding/ senior officers. The attachment, as ordered, should, be avoid as this action is neither provided under rules nor is customary. It would be pertinent to mention that there is nothing like Attachment in ESTA Code or Pakistan Steel Officers' Services Rules and Regulations.
3. In light of the foregoing facts, it s recommended that the officers remain under A&P Directorate pending finalization of charges against them as is normal practice in Federal and Provincial Governments and other organizations. The Officers are informed to report to the Establishment Sectt. In Federal Government and Services & General Administration. Deptt. In Provincial Governments and Human Resources Wing of Organizations thereby ensuring the dignity of the officer, which must be protected till a decision is finalized about their cases.
Sd/- Lt. Col. Syed Akbar Hussain (Retd)
Director (A&P) 27th September, 2000 Chairman"
6. In view of the above it is clear that the appellant was not relieved by Director (A&P) and after issuance of the Memorandum dated 19.12.2000 from In charge (A&P). The appellant was ordered to join the Production Directorate which the appellant joined without wasting time i.e. On 19.12.2000 (F/N). Hence it is clear that the appellant did not defy the order of the Competent Authority at any stage. It is further concluded that opportunity of defence was not afforded to the appellant so much so the documents were not exhibited nor the defence witness was, called on request of the appellant and neither enquiry report was provided nor personal hearing was accorded before infliction the penalty or reduction to one (01) stage .Lower in time scale.
7. In view of what have been discussed above, the impugned order dated 28.06.2002, in both the above appeals, is set aside. Consequently, the appeal is allowed with direction to the respondents to restore the appellant to his original position and stage in time scale which he was enjoying prior to passing the impugned order dated 28.06.2002 with all back benefits.
8. No order as to costs.
9. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 2t of the Service Tribunals (Procedure) Rules, 1974.