N. A. CHOUDHURY (MEMBER).-Mr. Rafiq Ahmad Saleh was working as an Economic Investigation (Grade 16) in the Ministry of Finance. He was charge-sheeted on 5th January, 1976 on the report of the Establishment Division to the effect that he was seen being dropped by a -Pravda"
Correspondent in a car in front of the residence of Mr. Ataur Rehman, Head Draftsman, WAPDA, Islamabad. A statement of allegation was enclosed with this charge-sheet. In reply to this charge- sheet submitted,. On 17th January, 1976, the appellant requested for a detailed enquiry as the charge levelled against him concerned his integrity and loyalty as 'a citizen of Pakistan. He also requested for a personal hearing. On receipt of reply to the charge-sheet, the Ministry of Finance, instead of. Proceeding with the enquiry, withdrew the charge-sheet and issued a show-cause notice on 17th August, 1976. In reply to the show-cause notice submitted on 23rd August, 1976, the appellant repeated his request for a detailed enquiry and investigation regarding charges levelled against him, as already requested in his original explanation. Instead of holding a detailed en-- quiry, the authorised officer (Finance Secretary) awarded him the punish--ment of stoppage of one increment for one year on 28th March, 1977.
2. The appellant preferred an appeal addressed to the Finance Secretary on 27th April, 1977. As his appeal was not disposed of within 90 days statutory period, he filed his appeal before the Service Tribunal on 25th August, 1977.
3. On 11 February, 1978, the appellant was informed by the Finance Secretary that his appeal was withheld as the same was addressed to the Secretary, Finance, who was not the appellate authority under the rule. The appellant submitted an appeal to the President of Pakistan on 9th March: 1978 which was rejected on 12th May, 1978.th
4. The learned counsel for the appellant argued that after having decided to take action under rule 5 (2) of the Efficiency and Discipline Rules, 1973, the authorised officer was left with no alternative, but to take action under rule 6 of the said rules, and to hold detailed enquiry. Accordingly, the action taken, by him to withdraw the charge-sheet and to issue a show-cause notice, as.
Contemplated under rule 5 (2) (b) was ultra vires of the said Rules. The whole disciplinary proceedings should, therefore, be considered to have been vitiated.
5. The learned counsel further argued that the appellant was charge sheeted for misconduct. The reported offence to contact the foreign agency was not covered by the definition of misconduct, as contained in the relevant rules. He read out before the Tribunal the definition of misconduct pointing out that in the circumstances, the action taken by the authorised officer was misconceived and not covered by the rules.
In the circumstances, the punishment awarded was not justifiable and well-- warranted.
6. It was also the contention of the learned counsel for the appellant that the action of the authorised officer with regard to the charge-sheet was not justified otherwise also because it was only fair to provide necessary opportunity through a regular enquiry to the accused as requested by him in the reply to the charge sheet because ..The charge related to his integrity and loyalty as a citizen of Pakistan, belonging to the minority community.
7. The learned counsel for the State explained that the rules do not debar the authorised officer or the authority to resort to any other course after having initiated action under one rule. As such, the pro--ceedings of disciplinary action drawn against the accused were not vitiated. The authorised officer or the authority were fully competent to withdraw action initiated under one of the rules or even to cancel the whole pro--ceedings once initiated and completed to re-start the proceedings under any other rules or even under the same rule.
8. It was the opinion of the learned counsel for the State that the action of the accused to contact a foreign agency particularly under the circumstances prevailing at the time of report, was misconduct within the meaning of definition contained under the relevant rules. He further explained that the Government had sufficient evidence on record and reports of the concerned agencies regarding contacts made by the accused with the foreign agency. As his action was prejudicial to the security of the State, the action taken against him was justified. It was for security reasons that detailed enquiry into the circumstances of the case was not conducted and a show- cause notice was issued for precipitating the disciplinary action. It was also the view of the State Counsel that since the appeal of the accused was decided on 2nd May, 1978 by the appellate authority, his appeal to the Tribunal filed on 25th August, 1977 was premature, and should be dismissed on this ground.
9. After hearing the detailed arguments, the Tribunal does not find it possible to subscribe to the views of the learned counsel for the appellant that the authorised officer was debarred from changing his course of action once he had decided to take action to hold enquiry and after issuing a charge-sheet accordingly. Under the rules, there is no provision to indicate such a debarment. It is, however, our opinion that the action of the accused to contact a foreign agency is not covered by the definition of misconduct as contained under the relevant rules. It is also not possible to agree to the view expressed by the learned counsel for the State that the action of the accused was against the security of the State. If the Government had been convinced on this point, the ultimate penalty would not have been the stoppage of one increment. Shortly after the award of punishment, the appellant has been promoted to Grade 17, as Research Officer. It would, therefore, be irrelevant, at this stage. To argue to establish a charge of misconduct and an act prejudicial to the security of the State against the appellant.
10. As regards the contention of the learned counsel for State that the appeal should be dismissed for being premature, we also do not find it possible to agree with him. In any case if the appeal is dismissed on this ground, obviously the accused would prefer another appeal immedia--tely which would be sustainable. This course of action would involve unnecessary delay and repetition of the proceedings of the Service Tribunal.
11. In the circumstances, appeal. Of the appellant is accepted and it is ordered to vacate the impugned order.
12. Parties to be informed.
13. No order as to costs:
14. SHAH ABDUR RASHID (CHAIRMAN).-I agree with the learned Member that this appeal should be accepted and order of penalty set aside. I may, however, observe that having connection with foreign nationals may amount to misconduct if it is against the D Government Servants Conduct Rules, 1964 or otherwise against any instructions issued by the Government. In this particular case there is no evidence that the appellant had contacted any foreign national. The only material placed on record ; which unfortunately even the appellant was not allowed to explain ; is that he was once seen being dropped from a vehicle owned by Pravda News Agency. It is common knowledge that the foreign embassies and agencies employ local drivers as they are available at low salary. Neither the allegations nor the evidence disclose that the vehicle was driven by any foreign . National or that the appellant was coming from the residence or office of any foreign national.