' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---The appellant was appointed as an Observer (BS-5) on 1-10-1999 in the Pakistan Meteorological Department, Government of Pakistan and was posted at P.B.O. Barkhan (Balochistan). Vide order, dated 9-4-2003 (reproduced hereunder), the appellant was removed from service:-- "Government of Pakistan Pakistan Meteorological Department, Geophysical Centre Post Box No,2 Quetta No,Ad4-5(61)/2001/94 Quetta the 9th April, 2003.
Office Order ' Mr. Muhammad Shahzad Shoukat, Observer, P.B.O.
' Dalbandin is informed that the Director-General, Meteorological Services, Karachi has removed him from Government Service with immediate effect on the basis of unsatisfactory performance and inefficient worker as provided under rule 3(1)(a) and (b) of the Removal from Service (Special Powers) Ordinance, 2000.
(Sd.) Muhammad Rafiq Director, Geophysical Centre, Quetta.
' Mr. Muhammad Shahzad Shoukat, ' Observer, through Officer Incharge, P.B.O. Dalbandin."
' The appellant preferred a departmental appeal, dated 6-5-2003 which remained unreplied; hence, he filed this appeal before the Tribunal on 1-8-2003, praying to set aside the impugned order of his removal from service and to reinstate him in service with all back-benefits from the date he was removed from service viz. From 14-4-2003.
2. We have heard the learned counsel for the parties and perused the record including the written comments filed on behalf of the respondents.
3. The learned counsel for the appellant argued that due to climatic conditions in Balochistan at Pasni and Dalbandin, where the appellant was posted, the appellant frequently fell ill; hence, he had to obtain leave on medical ground and otherwise. The admitted leave account of the appellant is as under:-- {{TABLE}} S. No, Nature of leave Duration From To E. 0 . L. (without pay) 37 days 1-9-2001 7-10-2001 E. O. L. (without pay) 19 days 21-10-2001 8-11-2001 L. F. P. 30 days 1-12-2001 30-12-2001 E. O. L. (without pay) 18 days 6-4-2002 23-4-2002 L. F. P. 10 days 16-5-2002 25-5-2002 E.O.L. (without pay) 6 days 26-5-2002 31-5-2002 {{TABLE}} ' The health of the appellant was said to have further deteriorated and he again fell seriously ill on 7-6-2002 and remained under treatment at Dalbandin till 31-6-2002. He could not recover from the treatment there; hence, he was compelled to leave the station for treatment at Karachi where he remained under treatment at Federal Government Employees' Dispensary from 1-7-2002 to 6-10- 2002. In the meantime, he was issued show-cause notice, dated 15-7-2002 for availing the already sanctioned leave and for remaining absent from 1-7-2002 onwards. He replied the show-cause notice on 23-7-2002 supported by medical certificates. He further submitted application for extension of his leave supported ,by medical certificates, which were got verified by the departmental authorities from Civil Surgeon, Central Government Dispensary, G.P.O. Compound, Karachi, who confirmed the said medical certificates to be genuine and sent the same to the Director, Geophysical Centre, Quetta, vide his letter, dated 1-10-2002.
' As per further averments in the memo. Of appeal, on being declared fit for duty by the Medical Officer, Central Government Dispensary, Karachi, he reported for duty on 7-10-2002 at Geophysical Centre, Quetta and on 12-10-2002 at Dalbandin, as per verbal order of the Director Geophysical Centre, Quetta, but he again fell sick on 28-10-2002 at Dalbandin and remained under treatment there. His health was said to be deteriorating day by day, therefore, he applied on 3-12-2002 for grant of 10 days' leave with permission to leave the station w,e,f, 4-12-2002 to 13-12-2002 for his proper treatment at Karachi. Along with the application, he also submitted a departure report, which was forwarded by the Officer Incharge, P.B.O. Dalbandin to the Director Geophysical Centre, Quetta. After availing 10 days leave, he joined duty at Dalbandin on 14-12-2002, as he was declared fit by the Medical Officer, Central Government Dispensary, Karachi to join the duty. He was then issued another show-cause notice dated 23-12-2002 repeating the allegations of his earlier leave/absence from duty with additional allegation that he had left the station without permission of the competent authority. He replied the show-cause notice on 1-1-2003 explained the circumstances under which he had obtained the leave on earlier occasions and he also explained under what circumstances he had, later on, left his station at Dalbandin by submitting his application for leave and departure report, due to his illness, but with the permission of his Incharge. He requested the Director, Geophysical Centre, Quetta to resolve his problem sympathetically and he be transferred to Karachi. He promised to be vigilant and careful in future..
5. In the written comments, filed on behalf of the respondents, preliminary objection was taken with regard to the delay in filing the appeal. It has been alleged that the appellant was a habitual absconder, who was in the habit of slipping away from duty in spite of warnings repeatedly issued to him. Further that he was also in the habit of leaving the station without prior permission; that lastly, he was transferred to P.B.O. Dalbandin on 11-6-2002, when he left the station at his own accord on 1-7-2002 and rejoined duty on 7-10-2002. It was also alleged that he did not take interest in office work and was found delinquent in discharging office duty regularly. It was admitted that medical certificates submitted by the appellant were got verified from the concerned Medical Officer, but the said Medical Officer was not authorized to advise rest for more than three days, whereas, he had recommended rest/leave to the appellant for more than three months. It was alleged that the work and performance of the appellant were unsatisfactory; hence, disciplinary action was taken against him and he was rightly removed from service.
6. The learned counsel for the appellant argued that the appellant was removed from service on the basis of unsatisfactory performance and being inefficient worker on the basis of leave of various kind, already earlier granted to him, and also on the basis of his absence from duty from 1- 7-2002 to 6-10-2002 and 4-12-2002 to 13-12-2002. The learned counsel for the appellant argued that no action could have been taken against the appellant on the basis of leave already granted to him earlier, and so far as the leave for a period from 1-7-2002 to 6-10-2002 was concerned, the appellant had sought leave for this period on medical grounds, supported by medical certificate which were already got verified as genuine from the concerned medical authorities; that the respondents had issued a show-cause notice in connection with the absence of the appellant for such period, but after reply of the appellant, no action was taken against him and he was also not communicated whether on the basis of genuine medical certificates, leave was granted to him or not; that so far as the last period of his absence from duty i,e, from 4-12-2002 to 13-12-2002 was concerned, the appellant had after being under treatment at Dalbandin, was compelled to leave the station due to further deterioration of his health and, in that connection, he had submitted leave application seeking permission to leave the station and also submitting his departure report, which documents were forwarded to the Director Geophysical Centre, Quetta by the Incharge at Dalbandin; that the appellant was not informed whether his leave was granted or not and merely on the basis of another show-cause notice, he was removed from service without any departmental inquiry into the circumstances under which the appellant had sought leave on both occasions referred to above; that the Honourable apex Court had repeatedly held that major penalty on a civil servant could not be imposed without any regular departmental inquiry allowing such civil servant to put up his defence; that major penalty of removal from service was extremely harsh one in the circumstances in which the appellant had to proceed on leave to Karachi for treatment. The learned counsel urged that the appeal be allowed and the appellant be reinstated in service with all back-benefits.
7. Relying on the written comments, the learned Standing Counsel contended that the appellant admittedly left the station of his duty without prior permission on 1-7-2002 and on 3-12-2002 in spite of warnings earlier issued to him and he had also failed to show or state that he had, on both occasions, left the station of his duty in emergency; hence, his appeal is liable to be dismissed.
8. We have carefully considered the above arguments of both sides.
9. A perusal of the record shows that the action of removal from service was taken against the appellant mainly on the basis of his taking the leave frequently on medical grounds and otherwise and also leaving the station of duty without prior permission. Such an action was taken under subsections (1)(a) and (b) of section 3 of the Removal from Service (Special Powers) Ordinance, 2000, which is reproduced as under:-- "S.3. [Dismissal, removal and compulsory retirement, etc.] of certain persons in Government or corporation service, etc.--- (1) Where, in opinion of the competent authority, a person in Government or corporation service, is---
(a) inefficient, or has ceased to be efficient for any reason; or [is guilty of being habitually absent from duty without prior approval of leave, or]
(b) guilty of misconduct; or
(c) .
(i) .
(ii)
(iii)
(iv)
(e) ' It is an admitted position that leave was granted to the appellant earlier six times, as already mentioned in para.3 above, but the appellant remained absent without prior approval of leave on two occasions viz. 1-7-2002 to 6-10-2002 and 4-12-2002 to 13-12-2002. It may be pointed out here that no action could be taken against the appellant on the basis of leave earlier granted to him, and so far as the leave for later two periods is concerned, it was sought on medical grounds. As per sub-rule (2) of Rule 20 of the Revised Leave Rules, 1980, leave applied on medical certificates shall not be refused. Provided that:--- "the authority competent to sanction leave may, at its discretion, secure a second medical opinion by requesting the Civil Surgeon or Medical Board, as the case may be, to have the applicant medically examined."
' In the case of the appellant the medical certificates were got verified by the respondents, but no order was passed of granting the leave to the appellant or referring him to Civil Surgeon or Medical Board, as mentioned above. No inquiry was also ordered into the circumstances of the illness of the appellant as claimed by him. On the other hand.
10. There is a serious legal lacunae in the disciplinary proceedings against the appellant inasmuch as in both show-cause notices, inquiry was not dispensed with and no reason was assigned for it.
The normal procedure under the law in disciplinary proceedings is that a charge-sheet is served upon the concerned official and an inquiry is to be held by an Inquiry officer or Inquiry Committee, providing full opportunity to such official to defend himself. If the competent authority considers that no such departmental inquiry is needed for the action against the official then a show-cause notice has to be issued to him wherein inquiry is to be dispensed with for the reasons to be recorded therein, but that has not been done in the case of the appellant.
11. In the circumstances, mentioned above, imposing of major penalty upon the appellant, without dispensing the inquiry in the show-cause notice and without holding the departmental inquiry into the circumstances leading to the absence of the appellant, was not justified. It may further be pointed out that efficiency is related to the performance of work, but the respondents have not brought on record anything to show the unsatisfactory performance of the appellant. Absence or leave is not related to the efficiency, which is quite evident from F.R. 10-A. It is reproduced as under:-- "F.. 10-A(a) The authority competent to fill the post held by a Government servant may require him to appear before a medicalR authority for medical examination if, in the opinion of the competent authority, the Government servant is suffering from a disease which render him unfit for the proper and efficient discharge of his duties or from a disease which is communicable and is likely to endanger the health of other Government servants.
(b) If the medical authority concerned, after examining the Government servant, certificates that the Government servant requires a period of absence from duty for the purpose of rest and treatment and that there is reasonable prospect of his recovery, the competent authority may grant him leave, including extraordinary leaves, for such period as the medical authority recommends, provided that it is due and admissible to the Government servant, and the competent authority may do so as if the Government servant had himself applied for the leave.
(c) If the medical authority after examining the Government servant, certificates that the Government servant is permanently incapacitated for service, the findings of the medical authority shall be communicated to the Government servant immediately. The Government servant may, within seven days of the receipt by him of the official intimation of the findings of the medical authority, apply to the Director-General, Health, for a review of his case by a second Medical Board.
Such an application shall be accompanied by a fee the amount of which shall be fixed by the Director-General, Health. The Director-General, Health, shall then arrange for the convening of a reviewing Medical Board consisting of persons who were not members of the first Medical Board. If the reviewing Medical Board also certifies that the Government servant is permanently incapacitated for further service, the competent authority may require him to retire from service and may grant him such invalid pension and or gratuity as may be admissible to him under the rules, and the competent authority may do so as if the Government servant had himself applied for an invalid pension.
(ii) In case the reviewing Medical Board holds that the Government servant is fit for Government service, he shall be reinstated forthwith and the period of his absence will be treated as duty. If, however, the Board certifies that the government servant is not fit but there is a reasonable prospect of his recovery, the case will be regulated under the provisions of clause (b) above.
(iii) In case the Government servant concerned does not apply for a review of his case within seven days of the receipt by him of the official intimation of the findings of the first Medical Board, the competent authority may require him to retire from service and may grant him invalid pension and or gratuity as provided for in sub-clause (c) above.
(d) The Central Government may make rules prescribing the form in which the medical certificate should be prepared and the Medical Officers may whom it should be signed(sic)."
' It is quite obvious that the respondents had not resorted to the provisions of F.R.10-A for dispensing with the service of the appellant on the ground of his alleged inefficiency or unfitness to further continue in service, as such, the charge of inefficiency against the appellant does not hold water.
However, so far as the allegation of misconduct is concerned, the appellant's admitted leaving of the station without obtaining prior permission of the concerned authority does constitute misconduct, inasmuch as that he had not made out any case for leaving the station in emergency, but such misconduct is a petty misconduct which did not call for a major penalty. Therefore, in the circumstances of the case, we consider the penalty of removal of the appellant from service too harsh to be maintained and we are inclined to modify such penalty to a minor one viz. Withholding of his three increments for a period of three years.
12. We, therefore, partly allow the appeal to the extent of modifying the major penalty of removal of the appellant to the minor one i,e, withholding three increments for a period of three years.
Consequently, we set aside the impugned order of removal of the appellant from service and direct the respondents to reinstate the appellant in service from the date of his removal. The intervening period be treated as leave extraordinary. The respondents are directed to determine the leave applications of the appellant for the period from 1-7-2002 to 6-10-2002 and 4-12-2002 to 13-12-2002 in accordance with Leave Rules.
13. No order as to costs.
14. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.