' SYED EKRAM HUSSAIN JAFRI (MEMBER).--- The two appeals bearing Registration No,135(K) of 1998 and 136(K) of 1.998 have been filed by appellants Messrs S.M. Imtiaz Ali and Nazeer Khan, both employees of COD Karachi (respondent No,1). The appeals are proposed to be disposed of by this single judgment in Appeal No,135(K) of 1998.
2. The facts of the appellant's case, as gathered from his appeal in brief, are that he was served with a show-cause notice, dated 11-6-1997 on account of his prolonged absence from duty. He replied the notice. After considering his reply the respondents allegedly withdrew the show-cause notice, in fact it is not so, and asked him to report for duty through letter, dated 16-9-1997. On receipt of the said letter of the respondents he allegedly contacted the authorities concerned from main gate continuously upto 2-10-1997 but he failed to report for duty on account of no response from the authorities. Thereafter he received the impugned order, dated 13-10-1997 of his removal from service. He made departmental appeal on 29-10-1997 which had not been responded to as yet. Hence this appeal after waiting period of 90 days.
3. The appellants has assailed the impugned order mainly on the ground that the same is passed with mala fide, and he has not been provided the chance of defending his case and opportunity of personal hearing was also not afforded to him. He has also alleged that he has been meted out discriminatory behaviour in imposing the penalty of removal from service to deprive him of his pensionary benefits as there are several instances like Aslam, Abbassi, Akram and other L.D.Cs. Of the Department who have been compulsorily retired on account of the similar charges. He has, therefore, prayed that the impugned order is liable to be set aside and he (the appellant) be reinstated with back-benefits.
4. The respondents in their parawise comments have denied all the allegations of the appellant of his simple absence from duty and non-service of call notices and other correspondence and non- providing the chance of personal hearing. The respondents have specifically alleged that the appellant went absent without prior permission of leaving the Headquarters and getting the leave sanctioned w,e,f, 2-10-1996. He had neither reported for duty nor responded/replied the two call up notices dated 17-12-1996 and 29-12-1996 sent on the same recorded residential address of the appellant on which he admittedly received the show-cause notice dated 11-6-1997, the letter dated 16-9-1997 and the impugned order, dated 13-10-1997. It has, very specifically, been denied by the respondents that he did contact any authority at main gate to allegedly report for duty in compliance of letter, dated 16-9-1967. The respondents have specifically, asserted that he was given full chance of participating in the disciplinary inquiry and was provided opportunity of personal hearing but he continuously ignored the call of assumption of duty and the notices for participating in the inquiry proceedings and appearing for personal hearing. The respondents have pleaded that a full-fledged inquiry under the Government Servants (E&D) Rules, 1973 has been conducted and all the legal formalities have been complied with by issuing show-cause notice, framing of charge-sheet and providing of statement of allegations by the Court of inquiry/Inquiry Committee and the appellant was provided with the opportunity of defence and personal hearing at every stage by issuing notices and correspondence but he avoided intentionally to report for duty and appear for participation in the inquiry and for personal hearing. The respondents have, therefore, pleaded that the impugned order is quite legal and passed by the competent authority after considering all the aspects of the case.
5. We have carefully gone through the pleadings of the parties perused all the documents filed by them and have given our anxious consideration to the arguments of the learned counsel and to the legal and factual aspects of the case. After perusal of the record we observed that admittedly the appellant remained absent from duty w,e,f, 2-12-1996. He did neither allege nor produce any document/evidence to prove that he got any prior permission to leave the Headquarters and got his leave sanctioned or he made any application for permission and sanction for leave prior to going on unauthorised absence from duty for such a long period. It is, therefore, clear from his own saying that he remained absent unauthorisedly from the duty for a very long period. Admittedly the appellant was served with the show-cause notice dated 11-6-1997 bearing his recorded residential address as Quarter No,A-403, Block 12, Gulberg, Karachi-38. Undisputedly he also received the letter of the respondents dated 16-9-1997 on his same address. Apart from it his reply to the show-cause notice, dated 30-6-1997 also disclosed his above recorded residential address therein. In these circumstances the appellant's stand to the effect that he was not served with the notices, letters and correspondence, before or after, initiation of the proceedings or during the proceedings against him to keep him away from the participation in the proceedings/inquiry is not believable.
6. The respondents as it appears from the entire record of inquiry proceedings available with the file that full-fledged inquiry under the Government Servants (Efficiency and Discipline) Rules, has been conducted in strict accordance with the Rules. We observed that immediately after the appellant's unauthorised absence from duty with effect from 2-12-1996 without prior permission and sanction of leave the respondents sent two call up notices dated 17-12-1996 and 29-12-1996 calling him to report for duty and then served show-cause notice, dated 11-6-1997. Thereafter as required by the procedure enunciated in the E&D Rules a charge-sheet was framed and was communicated to the appellant together with the statement of allegations explaining the charge requiring the accused appellant to submit his explanation within 7 days from the communication of the charge-sheet to put his defence and to state if he desires to be heard in person The duly constituted Court of inquiry/Inquiry Committee completed the inquiry proceedings after communicating him the date, time, venue i,e, the place of the proceedings and the subject-matter of the proceedings. After completing all the legal formalities and concluding the disciplinary proceedings against the appellant the Enquiry Committee/Court of inquiry submitted its report/findings containing opinion and recommendations also to the authorised officer who sent the show-cause notice attaching therewith a copy of the proceedings and calling the appellant to avail the chance of his defence and personal hearing if any and then the impugned order has been passed. As is clear from the record of disciplinary proceedings and other relevant record available on the file that in conducting the full-fledged inquiry against the accused appellant all relevant rules and well-established principles of natural justice have been adhered to. We, therefore, find no lacuna and illegality in the conduct of disciplinary proceedings against the appellant. The Enquiry Committee, while acting according to law provided full chalice to the appellant for adducing his defence and providing full opportunity of personal hearing. In our view the Enquiry Committee had correctly concluded that the allegation of unauthorised absence of the appellant w,e,f, 2-12-1996 amounting to misconduct has been proved and it (Enquiry Committee) in the above circumstances has very rightly proceeded ex parte. It, in the circumstances discussed above, can very well be held that the appellant himself intentionally for the reasons best known to him, avoided to participate in the inquiry proceedings and chose not to adduce any defence and,not to avail any opportunity of personal hearing even after service of notices on him by the respondents in this respect.
7. In view of the admitted position and the circumstances already discussed above it goes without saying that all the notices and correspondence, calling the appellant to assume the duty and to participate in the inquiry proceedings and to avail the chance of adducing defence and an opportunity of personal hearing, were sent to him on his undisputed recorded residential address but he had chosen to be absent and ignorant of-the actions and proceedings against him. In the absence of any documentary and oral evidence of the appellant an unauthorised long absence from duty has also been proved 1998 SCM R 1380.
8. Therefore, in view of the circumstances and conduce of the Enquiry Committee and proceedings of the departmental inquiry we feel no hesitation to hold that full-fledged inquiry has been conducted according to the Government Servants (E&D) Rules, 1973 and all legal formalities and requirements of principles of natural justice have been adhered to. In view of well-settled law of 1980 PLC (C.S.) 477 wherein it has been held that when the appellant neither participated in the inquiry proceedings nor availed of an opportunity of personal hearing before punishing authority despite the notice, the ex parte proceedings in these circumstances cannot be allowed to be objected to by the appellant.
9. For the foregoing reasons we are of the considered view that the impugned order of removal of the appellant is neither hit by any provisions of law nor the appellant has been condemned unheard. We, accordingly, finding the impugned order free from any legal and factual infirmity, hold that it is quite legal and appropriate from all four corners. We, accordingly, find no merit in the appeal and dismiss the same with no order as to costs.
10. Parties be informed.