' ZAHEER AHMED (MEMBER).--- This is an appeal against the Notification, dated 15-7-2002 whereby penalty of compulsory retirement has been imposed on the appellant under Removal from Service (Special Powers) Ordinance, 2000 and another Notification dated 20-3-2003 whereby this penalty has been enhanced to dismissal from service with effect from the same date. The departmental appeal of the appellant against the notification of compulsory retirement submitted on 9-8-2002 was not responded by the respondent. Therefore, the appellant has invoked the appellate jurisdiction of this Tribunal in appeal under section 4 of the Service Tribunals Act, 1973 on 6-11-2002.
2. The brief facts of the case are that the appellant while serving as Assistant Director (BS-17) in the Federal Investigation Agency (F.I.A.) developed Hepatitis "B". He remained under the treatment of various specialists in Pakistan for more than four years but he was not cured. He contacted some specialists abroad who suggested treatment through Ursodil therapy and inclusion of Gamma GT testing. The appellant accordingly applied for 120 days' leave of full pay, including 60 days' leave ex-Pakistan for medical treatment of Hepatitis "B" vide application dated 18-4-2000. He was granted 90 days leave Ex-Pakistan vide notification dated 25-5-2000 with the condition that he will not draw his salary in foreign exchange. The appellant relinquished the charge on 9-6-2000 and proceeded to U.S.A. Wherefrom he applied for extension of leave for another 90 days on compassionate grounds on 6-9-2000. The request was acceded and he was granted another 90 days leave upto 4-12-2000. The appellant reportedly did not recover and asked for another six months leave on the basis of the following medical advice/certificate dated 30-11-2000 from Mount Sinai Medical Centre, Miami, U. S. A.
"This letter is to confirm that Mr. Muhammad Hanif is under our treatment for Hepatitis-B viral infection of replicative precore mutan type. Based on latest Evaluation Report he is advised to continue further treatment for a period of six months to monitor the result and improvement. He has next appointment with us on March 23, 2000 at 0230 p.m.
' If you require any information please call our office at (305) 674 2240."
' Before sanctioning the leave further, the respondent department checked the authenticity of the above medical certificate issued by Mount Sinai Centre, Miami U.S.A. It transpired that the above medical certificate dated 31-8-2000 and an earlier certificate 30-11-2000 were fake and forged. The response from the Practice Manager of the Hospital is reproduced below:-- "This is to verify that the two letters you faxed to us on 1-4-2000 were not issued by my department or Mount Sinai Medical Centre. The stationery is not consistent with ours, and since we have not seen Mr. Hanif in our office, we do not know his diagnosis and would have no reason to compose the content of the letters."
' The authority, therefore, did not sanction the leave and directed the appellant vide letter 12-1-2001 to report for duty immediately and failure to which entail in initiation of disciplinary action under.
Removal from Service (Special Powers) Ordinance, 2000. The appellant did not report for duty and sent another application dated 17-1-2001 for grant of 180 days leave which was rejected by the respondents with the following observations:-- "The extension of leave applied for has not been granted by the competent authority. You are hereby treated as absent in the light of this office letter dated 12-1-2001. The earlier medical Mpapers sent by you (of Siani Hospital) have been found bogus and forged. Hence no leave will be granted to you and you will be treated as absent."
' The appellant instead of joining duty sent another application dated 5-22001 reiterating his earlier request along with medical certificate dated 31-1-2001 signed by Mr. Hernando Garcia, M.D., Associate Pulmonary Division of Mount Sinai Medical Centre. In view of the confirmation of bogusness of earlier medical certificates dated 31-8-2000 and 30-11-2000 of Mount Sinai Medical Centre, already submitted by the appellant, the matter was taken up with Doctor Garecia vide letter dated 24-2-2001 to confirm the authenticity of the latest medical certificate dated 31-1-2001 and despite reminder dated 13-3-2001 no reply was received. The appellant continued pouring applications for extension of leave. He was, however, informed vide letters dated 26-22001 and 21- 6-2001 about the rejection of his requests. Meanwhile, a complaint against the appellant was received from the Embassy of France, Islamabad mentioning therein that the visit visas were granted to eight visitors/family members of the appellant on his written undertaking that none of the above visitors would stay in France beyond the authorized visa limits and on their return they would certainly present their passports in the France Embassy, Islamabad personally. The embassy alleged that none of those people came back to Pakistan and according to official confirmation the family had applied for political asylum on 18-12-2000.
3. An order of inquiry dated 29-6-2001 was served on the appellant with the approval of respondent No,1 i,e,, Secretary Interior Division, Islamabad in which the following four allegations were levelled against him:--
(i) In June 2000, he with Official Passport (No,S-029592) appeared before the French Consulate with a Notification No,A/778/Admn-I, dated 5-5-2000, issued from F.I.A HQrs regarding sanction of 90 days Ex-Pakistan leave to him. He applied for a visa for himself and his family. He pretended to visit France and U.S.A. To see family and friends during holidays. Moreover, he was also interviewed for issuance of visa to other eight people, introducing them as members of his family. In this regard, he presented the following undertaking to assure French Embassy that they would come back to Pakistan:-- "I, Muhammad Hanif, Assistant Director, F.I.A., G-9/4, Islamabad, hereby understand and assure that none of the above intending visitors to France would stay beyond the authorized visa limit and on their return, they would certainly present their passports in the French Embassy, Islamabad, personally. The favour being extended is highly appreciated, 6-6-2000."
(ii) None of these people came back to Pakistan and it has been confirmed by the French Embassy that Mr. Muhammad Akbar and his family, whose assurance of coming back was given by him (Mr. Muhammad Hanif) has applied for political asylum on 18-12-2000.
(iii) He was granted 90 days ex-Pakistan leave on full pay w,e,f, 10-6-2000 vide notification No,A/778/Admn-I, dated 29-5-2000 on his request, the ex-Pakistan leave was extended for further 90 days on medical grounds from 7-9-2000 to 4-12-2000 vide F.I.A. HQ Notification No,A/778/Admn-I, dated 23-9-2000, then he requested for further extension in ex-Pakistan leave for 180 days vide his faxed letter dated 3-12-2000 which was not granted and he was informed vide F.I.A. HQrs letter No,A/778/Admn.I/2001, dated 12-1-2001 to report for duty immediately, failing which departmental action against him will be recommended to the competent authority under Removal from Service (Special Powers) Ordinance, 2000, but he has not reported back and is absent since 5-12-2000.
(iv) The medical certificates sent by him from U.S.A. For extension in ex-Pakistan leave were not got verified from the concerned authorities. In this regard, Mount Sinai Medical Centre, Miami, U.S.A., sent the following report which confirms that he tried to use a forged letter for extension in his leave:-- "This is to verify that the two letters you faxed to us on 1-4-2000 were not issued by my department or Mount Sinai Medical Centre. This stationery is not consistent with our, and since we have not seen Mr. Hanif in our office, we do not know his diagnosis and would have no reasons to compose the content of the letters."
' Mr. Karam Din, Deputy Secretary, Interior Division, Islamabad was appointed as Inquiry Officer to probe into the above allegations. The appellant in response to the Inquiry Order/charge-sheet gave detailed reasons for extension in leave and denied the submission of forged medical certificate by stating that all certificates including certificate dated 31-1-2001 issued by Dr. Hernando Garcia were actually issued by the concerned representative of Mount Sinai Medical Centre Miami, that he cannot join the inquiry and requested to stop the inquiry proceedings for 60 days in view of his health so that he could defend himself and prove his innocence. The appellant also asked about the details of the ongoing inquiry and requested for its postponement till 10-9- 2001 to enable him to produce documentary as well as oral evidence including two witnesses to negate the charges levelled against him. The appellant time and again requested for extension in his leave and supply of various documents including verification report regarding disputed medical certificates dated 31-8-2000 and 30-11-2000. The authority provided the appellant with the letter of Embassy of France for issuance of irregular visa to eight members of his family dated 4-12- 20001. The appellant was also informed that the specialist of U.S.A. Did not confirm the medical reports dispatched by him to the competent authority. However, the appellant submitted another medical certificate dated 9-1-2002 from Montreal Canada verifying his sickness from the specialist.
The appellant kept writing letters to the respondents to stop the inquiry proceedings, etc. Till his recovery from illness. The inquiry however, proceeded and the Inquiry Officer submitted his report on 28-1-2002 with the following findings and recommendations:-- "FINDINGS
(13) Mr. Muhammad Hanif, Assistant Director F.I.A. Had been provided not only sufficient time but an opportunity .For hearing in person to enable to defend the allegations. He had been deliberately avoiding attending the inquiry by sending requests one after another. He was directed to appear in person not later than 15th January,2002 but he has failed stating that Doctor has advised that he needs regular medical follow ups for another period of three months and in view of health conditions he is advised not to travel to Pakistan during this period. Medical Certificate issued by Departmental representative Ly, Hong-Sen has been attested by the Consul General of Pakistan, Montreal Canada.
' The following charges have been established/proved:--
(i) Mr. Muhammad Hanif had intervened for issuance of visa to eight (08) persons for France using his official capacity enabling Messrs Muhammad Akbar and Athar Iqbal, for applying political asylum in France.
(ii) Mr. Muhammad Hanif, submitted forged medical certificates for grant of Ex-Pakistan leave.
(iii) He is absent from duty without approval with effect from 5th December, 2000.
RECOMMENDATIONS
(14) In the light of the facts analysis of the cases it is recommended that:--
(i) Charges at Serial Nos.(i) and (ii) have been provided, competent authority may consider minor/major penalties under E & D Rules, 1973 as per section 3(1) of Removal from Service (Special powers) Ordinance, 2000".
(ii) The Consul General of Pakistan Montreal Canada may be requested through Ministry of Foreign Affairs to have medical check up of Mr. Hanif in Montreal Canada that he is suffering from Chronic HBV infection and unable to travel to Pakistan.
(iii) On receipt of report from Consul General of Pakistan Montreal Canada disciplinary action be initiated in the light of that report."
' On the basis of the above findings and conclusions the appellant was served with a show-cause notice dated 14-3-2002 to which he submitted his defence reply on 10-6-2002 and refuted the allegations. He also supplemented his reply to the above show-cause notice by sending a fax message dated 10-7-2002 to the Secretary, M/o Interior, stating therein that the inquiry in the matter may be held in abeyance till the clearance from the doctor. The reply to the show-cause notice dated 10-7-2002 did not find favour with the authority, therefore, the impugned Notification dated 15-7-2002 imposing major penalty of compulsory retirement upon the appellant was issued.
The appellant submitted a departmental representation dated 9-8-2002 addressed to the Chief Executive of Pakistan which did not evoke any response, therefore, the appellant has come in appeal before this Tribunal on 6-11-2002 under section 4 of the Service Tribunals Act, 1973 with the prayer to set aside the impugned notification dated 15-7-2002 and direct the respondents to reinstate him in service. With all consequential back-benefits.
4. The learned counsel for the appellant argued that the appellant has gone abroad after obtaining N.O.C. And getting the leave sanctioned from the authority for medical treatment of Hepatitis-B after exhausting all the medical specialists' expertise within the country as he had no control over his disease and in spite of repeated requests he was not allowed further extension in his leave. He vigorously argued that the respondents have ignored the long blotless track of service of the appellant and the extension in leave has been refused which is against rule 20 of the Revised Leave Rules, 1980 wherein it has been mentioned that leave applied for on medical certificate shall not be refused provided the authoiity competent to sanction leave may, at its discretion, secure a second medical opinion by requesting the Civil Surgeon or Medical Board, to have the applicant medically examined. He submitted that the competent authority did not act in accordance with the rule not referring the appellant for second medical opinion whereas it was open to him to refer the case of the appellant to the Consul General of Pakistan, Montreal, Canada or Canadian High Commission. He contended that all the inquiry proceeding were carried to ex parte without waiting for the return of the appellant from abroad and without examining the witnesses in his presence because he has denied the allegations which is against section 5 of Removal from Service (Special Powers) Ordinance, 2000. The learned counsel contended that no charge-sheet was issued to the appellant which is required under section 3(2) of the said Ordinance. He further stated that the charges levelled against the appellant were never conveyed to him, therefore, he was denied the opportunity of defence at the first stage which is prejudicial to the right of defence of the appellant.
In support of his arguments he cited 2002 TD (Service)
41. He stressed that the findings of the Inquiry Officer were not based on any evidence and that he formed his opinion on surmises and conjectures without any authentication of the documents which cannot be made the basis of passing the impugned order. The learned counsel submitted that the department knew about the disease of the appellant and on this very basis 90 days ex-Pakistan leave was granted to him which was later extended for another 90 days and refusal for another extension was against the Revised Leave Rules, 1980 whereas in the case of Collector of Customs Hyderabad and another v.
Muhammad Hayat reported as 2001 PLC (C.S.) 81 is has been held that once request for medical leave was granted, subsequent request for extension of such leave could not be declined without referring his case for a second medical opinion. He submitted that the appellant requested for extraordinary leave which was also refused to him without caring his health and the Revised Leave Rules and the fact that he has 26 years service to his credit and is entitled for EOL without pay for a maximum period of five years, therefore, there was no justification for refusing EOL when the appellant has requested for that on very compassionate medical grounds. He further submitted that the medical certificates were declared fake without perusing the factual position relying on letter dated 4-1-2001 whereas the letter dated 31-1-2001 clearly reflects for not turning up the appointment. Therefore, the Enquiry Officer has failed to consider this certificate. Moreover, the Enquiry Officer has failed to give recommendation in respect of the penalty to be imposed on the appellant which is against section 8 of Removal from Service (Special Powers) Ordinance, 2000.
Regarding the complaint of French Embassy and subsequent inquiry the learned counsel argued that 6 out of 8 family members of the appellant did not actually proceed to France and two who went did not overstay beyond permitted period, therefore, no irregularity can be attributed to the appellant. However, the learned counsel provided no documentary evidence in support of his claim. On the basis of above arguments the learned counsel for the appellant pleaded for acceptance of the appeal and reinstatement of the appellant with all consequential back-benefits.
5. The learned counsel for the respondents argued that the authority, by considering the human aspect, not only granted the appellant 90 days Ex-Pakistan leave for treatment abroad but also acceded to his request for extension in leave for another 90 days. However, even after the expiry of the extended leave the appellant instead of joining duty started pouring applications for further extension on the basis of fake/forged medical certificates, therefore, the authority was justified in refusing the extension of leave and to proceed against the appellant. The learned counsel further argued that the appellant cannot claim leave as a matter of right and the authority exercised his discretion judiciously without any mala fide or discrimination. He vehemently refuted the allegation of the appellant that he was not conveyed the allegations levelled against him by stating that the appellant has acknowledged its receipt by giving reply to the charges. The learned counsel contended that the appellant has tried to take advantage of a typographical mistake whereby the date Mount Sinai Hospital's verification letter dated 4-1-2001 was erroneously mentioned as 1-4- 2000 in the inquiry report. He stressed that the appellant was given sufficient opportunity to come to Pakistan and join the proceedings but he miserably failed and submitted fake/bogus medical certificates, therefore, the ex parte inquiry proceedings conducted behind his back are justified in the facts and circumstances of the case. He argued that four allegations were levelled against the appellant out of which three were proved in the inquiry which shows the fairness of the Enquiry Officer. He finally argued that the appellant has been dealt with strictly in accordance with the law and rules on the subject. He was proceeded on specific charges of misconduct which were established during the inquiry proceedings and depending upon the report of the Enquiry Officer, the appellant was dismissed from service under Removal from Service (Special Powers) Ordinance, 2000. However, due to typographical mistake the penalty was mentioned in the impugned Notification dated 15-7-2000 as compulsory retirement which was later on rectified through notification dated 20-3-2003. On the basis of these arguments, the learned counsel for the respondents prayed for dismissal of the appeal.
6. Having heard both the parties and perused the record in detail, we are of the view that the appellant may have been sick initially but the medical certificates he submitted to the respondents for extension of leave were found to be fake and forged which tantamount to misconduct. The letter from the Practice Manager Mount Sinai Centre, Miami clearly states that the medical certificates sent by the appellant to the respondent-department were fake and forged on a stationery not consistent with the Centre's genuine stationery. The appellant, therefore, committed a serious act of fraud and forgery and is guilty of misconduct. The final medical certificate dated 9- 1-2002 submitted by the appellant from Canada which is endorsed by the Consul General of Pakistan, Montreal, Canada only recommends three months leave whereas the appellant was asking for six months leave and remained absent from duty w,e,f, 5-12-2000 till the impugned order was passed. Similarly, as proved in the ongoing inquiry an undertaking for grant of Visa to eight persons of his family to a Foreign Embassy (France) is also a very serious matter. All this amounts to serious misconduct and, therefore, calls for a major penalty under Removal from Service (Special Powers) Ordinance, 2000. However, the respondent department originally issued the notification of compulsory retirement on 15-7-2002 which was later on changed to dismissal under the garb of typographical mistake which is not justifiable. If it was a typographical mistake, a corrigendum should have been issued immediately, and not a revised notification after more than eight months. Moreover the authority was not empowered to enhance the penalty without giving reasons under section 24-A of General Clauses Act, 1897 and providing sufficient opportunity of defence to the appellant. Similarly, the appellate authority if inclined to enhance the penalty was required to issue a fresh show-cause notice giving reasons for such imposition. The authority in this case has consciously omitted to do so under the garb of rectification of typographical mistake after a lapse of more than eight months which is neither justifiable nor could be allowed.
7. Keeping the above in view, the penalty of compulsory retirement awarded to the appellant vide notification dated 15-7-2002 is upheld and the penalty of dismissal imposed through notification dated 20-3-2003 is set aside. Consequently, the appellant shall be deemed to have been compulsorily retired from service w,e,f, 15-7-2002.
8. There is no order as to costs.
9. Parties be informed.
10.