' JUSTICE (R) TANVIER.BASHIR ANSARI, (CHAIRMAN)---Briefly the facts as stated in the appeal are that a show-cause notice dated 30-6-2006 was issued to the appellant containing the following charges:-- "(1) You were directed to report to Cabinet Division vide FLC's letter dated 22-4-2006 but you reported there on 2-5-2006, i,e, after ten days' absence.
(2) That you remained absent from duty on 3-5-2006 and have been absenting from duty since 5- 5-2006, without prior approval of leave, as reported by the Cabinet Division vide, letter dated 8-5- 2006, recommending disciplinary action, against you.
(3) That you remained absent from duty on 28-3-2006 to 31-3-2006 and 1-4-2006 to 19-4-2006 without approval of leave, but marked your presence in the attendance register.
(4) That you habitually remain absent from duty without prior approval of leave (details of other past 'instances are enclosed)."
2. The appellant submitted his reply to the said show-cause notice wherein all the allegations were controverted and the factual position was explained. Without holding a full fledged inquiry and without giving an opportunity of personal hearing to the appellant, the competent authority vide impugned order dated 12-10-2006 imposed a major penalty of compulsory retirement. The appellant preferred a departmental appeal/ representation. The departmental appellate authority vide order, dated 12-12-2006 enhanced the punishment from compulsory retirement to dismissal from service. The instant appeal is directed against the imposition of penalty both through the original as well the final appellate orders.
3. It is contended by the learned counsel for the appellant that both the original order dated 12-10- 2006 as also the final appellate order dated 12-12-2006 are in violation of law and principles of natural justice. It is further urged that the perusal of the show-cause notice would make it manifesrtliatthe appellant was alleged to have been unauthorizedly absent from 22-4-2006 to 2- 5-2006 on one instance, 3-5-2006 to 5-5-2006 and from 28-3-2006 to 31-3-2006 and 1-4-2006 to .19-4-2006 on others It is submitted that the appellant has been in service with the respondents for as many as 28 years and no such allegation has been levelled against him before. It is contended that the allegations of absence contained in the show-cause notice do not spell out a case of habitual absence and that in any event the imposition of major penalty of compulsory retirement as also the enhancement of the said punishment to that of dismissal by the appellate authority were not commensurate with the allegations and were too excessive to say the least. It is pleaded that even if the departmental appellate authority was minded to enhance the penalty he could only do the same on the basis of justified reasons and that too after giving an opportunity of meaningful hearing to the appellant which was not done in the instant case. The learned counsel placed reliance upon 1990 PLC (C.S.) 5, Atta-ur-Rehman v. I.-G.P. 2001 TD (Service) 228 (?) PLC (C.S.) 816 and 2002 PLC (C.S.) 395. It is finally contended that on the basis of the allegations contained in the show-cause notice no case of inefficiency under section 3(1)(b) Removal from Service (Special Powers) Ordinance, 2000 or that of misconduct under section 3(1)(b) and 2(1)(b) ibid was made out.
4. On the other hand Dr. G.S. Khan, Advocate for the respondents contended that. It is not correct to say that the allegations contained in the show-cause notice, dated 30-6-2006 was the only occasion that the appellant had remained absent from duty without authority. It is stated that throughout his service he has remained absent on a number of occasions. In fact the learned counsel calculates/aggregates his unauthorized absence as 483 days on 14 different occasions.
He also cited two previous show-cause notices dated 7-7-2004 and 2-7-2005 issued to the appellant on this score. In fact, the learned counsel has referred to written statement annexed to the sliow-cause notice wherein the various instances of absence from duty without authority have been listed along with penalty which was also imposed upon him on more than one occasion. It is contended that both the competent authority as well as the departmental appellate authority was cognizant of the past conduct of the appellant and the imposition of major penalty as indicated hereinbefore was fully justified in the circumstances of the case. 'It is contended by the learned counsel for the respondents that shorter procedure of show-cause notice was a proper procedure in the circumstances of the case as the absence from duty did not call for any full-fledged inquiry and that the same was apparent from the record. The show-cause notice issued to the appellant fulfilled the requirement of law and principles of natural justice as he was required to explain the reasons for his un-authorized absence and as the reply to the show-cause notice was considered and not found to be satisfactory, the competent authority proceeded, to impose the major penalty of compulsory retirement.
5. With regard to the enhancement of the penalty by the departmental appellate authority, the learned counsel urged that in service matters it was not necessary in all cases to issue show- cause or give a further opportunity of being heard to the official before the appellate authority decided to enhance the penalty. According to him it was within the power and jurisdiction of the appellate authority to have passed such an order of penalty which, in his view, was just and proper keeping in mind the service record of the appellant. It is lastly contended that the allegations against the appellant were not of a simple matter of absence from duty. In fact, in the wake of the catastrophe of Earthquake of 8th October, 2005 the appellant was posted in the exigency of service and his unauthorized absence amounted to wilful disobedience of the order of the superior besides creating hurdle in the way of public functions which were of utmost necessity in that situation. The learned counsel placed reliance on 1986 PLC (C.S.) 74 to contend that gravity of every absence has to be seen in the context of previous record as a whole.
6. Arguments have been heard and record perused. The subject-matter of the show-cause notice dated 30-6-2006 is unauthorized absence as detailed therein. In the reply submitted thereto by the appellant the factum of absence was not denied although the appellant endeavoured to explain his alleged absence.
7. Law provides for two specific procedures. When allegations consist of disputed questions of fact which are alleged on the one side and denied on the other, it is incumbent upon the departmental authorities to hold a full-fledged inquiry in the absence of which it is not possible to prove the substance of the allegations. Where however, the misconduct is apparent from the face of the record as is the present case of absence from duty of the appellant, it is sufficient to follow the shorter show-cause procedure in order to give an opportunity to the official to explain the alleged lapse. It is so as no formal inquiry is necessary to establish absence from duty. What has to be seen in such circumstances is as to whether the official has offered substantial explanation for the miscondut.
' A perusal of the record in the instant case reveals that although the instant absence relates to 4 different periods of relatively short duration on each occasion yet when viewed in the backdrop of the general service record of the appellant it reveals that he remained absent without authority on a large number of occasions and at certain times for very long period (206 days), from 1-11-2004 to 25-5-2005 besides other substantial absence from duty.
8. It appears that in this view of the matter the competent authority took a justifiable cognizance of the gravity of misconduct of the appellant E while imposing the major penalty of compulsory retirement from service vide the original impugned order dated 12-10-2006.
9. As hereinbefore indicated, the appellant preferred departmental representation against the said penalty. The departmental appellate authority without giving an opportunity of hearing to the appellant for any proposed enhancement of punishment, proceeded to impose the major penalty of dismissal from service through the impugned final appellate order. There is force in the contention of the learned counsel for the appellant that the departmental appellate authority ought to have given an opportunity of a meaningful hearing to the appellant if it was proposed to enhance the penalty. Admittedly such an opportunity against enhancement of punishment was not given to the appellant. This lacuna offends against the principles of natural justice and renders the enhancement of punishment void and of no legal effect.
10. We are also not unmindful of the fact that the gravity of each misconduct has to be viewed in the larger context of the surrounding circumstances as well as in relation to the general service record of an incumbent. It is not denied that the appellant had put in almost 28 years of service. All or most of his absence fell in the years 2004, 2005 and 2006. Although the absence for such long periods without authority cannot be condoned yet it has to be evaluated whether the punishment awarded in a given case is commensurate with the alleged misconduct. There is nothing on the record to show that the appellant remained absent without authority prior to 1-11-2003 which implies that he was, by and large, good in attendance over the first 25 years of service.
11. Be that as it may, the fact that he remained absent from 1-11-2003 to 31-1-2004 (3 months), 12-4- 2004 to 25-4-2004 (14 days), 27-4-2004 to 26-5-2004 (30 days), 1-11-2004 to 25-5-2005 (206 days), 16 days in the month of August, 2005, 24 days in September, 2005, 24 days in October, 2005 and 18 days in November, 2005 besides the absence which is the subject-matter of the instant show-cause notice the nature, length and frequency of the unauthorized absence of the appellant persuades us to hold that the major penalty of compulsory retirement from service imposed by the competent authority through the original order, dated 12-10-2006 was just and proper in the circumstances of the case and commensurate with the misconduct. We do not tend to agree that the enhancement of this punishment to that of dismissal from Government service for more than one reasons. Firstly it was incumbent upon the departmental appellate authority to have issued a show-cause notice to the appellant if it had enhancement of punishment in mind. Failure to do the same amounts to travesty of justice. Secondly keeping in view the length of service of the appellant the extreme penalty of dismissal from service certainly appears to be excessive and harsh. No valid justification for imposition of penalty of dismissal from service is forthcoming from the record.
12. The upshot of the above discussion is that the appeal is partly accepted inasmuch as while upholding the order of compulsory retirement from service, we set aside the order of dismissal from service. The appellant shall consequently be entitled to such service benefits as are admissible for compulsory retirement.
13. No order as to costs. Parties be informed.