In Civil Appeal No, 1854 of 2008 ' TASSADUQ HUSSAIN JILLANI, J.--- Through this appeal by leave of the Court, appellant has challenged the judgment dated 10-9-2008 passed by Federal Service Tribunal vide which his appeal against the order dated 14-3-2006 awarding him major penalty of dismissal from service was dismissed but the major penalty was converted into removal from service by the Tribunal.
2. Facts giving rise to the instant appeal are that the appellant while serving as Key Punch Operator (BPS-10) at Data Processing Center, Federal Bureau of Statistics, Islamabad was proceeded against on charges of misconduct, alleging that he applied for leave for 15 days with effect from 18-6-2004 on medical grounds and thereafter he continuously kept moving leave applications on medical ground upon 22-9-2004; he was refused medical ground thereafter and was directed to resume duties vide the order dated 6-12-2004 which was not complied with by the appellant whereafter the Department was obliged to issue a show-cause notice on 12-3-2005 which reads as under:- "Government of Pakistan Federal Bureau of Statistics No, FBS. IBD. P-17(730)/84 Dated 12-3-2005 Show-Cause Notice ' Whereas you Mr. Muhammad Abdul Moied, KPVO, Federal Bureau of Statistics, Islamabad are accused of having committed the following acts which constitute misconduct under sections 2(1)
(t) and 3(1) of the Removal from Service (Special Powers) Ordinance, 2000 as amended from time to time:---
(i) You have applied leave on medical ground for 15 days w,e,f, 8-6-2004 and till then you have been continuously submitting leave on medical ground upto 22-9-2004. The leave was not granted by Competent Authority as such you were directed vide FBS telegrams dated 7-7-2004 and 12-8-2004 to report for duty but you failed to join the duties.
(ii) Since 22-9-2004 neither you submitted any medical certificate nor requested for leave.
Therefore, you were finally directed vide FBS memo. Dated 6-12-2004 to resume duties but again you failed to join.
(iii) You are still absent from Government duties since 8-6-2004 till to date unauthorized.
(2) Whereas by reasons of the above the accused appears to be guilty of misconduct within the meaning of sections 3(1)(b) and 2(1)(b) of the Removal from Service (Special Powers) Ordinance, 2000 as amended from time to time.
(3) And whereas, I Asad Elahi as the Competent Authority, under section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000, have decided in terms of section 5(1)(4) of the said Ordinance, that it is not necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee.
(4) Now, therefore, you are hereby called upon to show cause as to why one or more of the penalties including Major Penalty of dismissal from service as prescribed in section "3 of the Removal from Service (Special Powers) Ordinance, 2000 as amended from time to time, may not be imposed upon you on the above grounds.
(5) Your written reply to this show-cause notice should reach the undersigned within seven (7) days of its receipt by you, failing which it would be presumed that you have no defence to offer and ex parte decision would be taken.
(6) You the said Mr. Abdul Moied, KPVO, FBS, Islamabad are also required to state, if you desire to be heard in person by the undersigned.
(Sd.)
(Asad Elahi)
Acting Secretary Competent Authority Mr. Muhammad Abdul Moied, 4/I-E,St.No,13, G-7/2, Islamabad.
3. The appellant gave written reply to the show cause notice on 19-3-2005 which was not found satisfactory and the Competent Authority in the Department vide the order dated 14-3-2006 awarded him major penalty of dismissal from service. However, the unauthorized absence from 8- 6-2004 to 13-3-2006 was treated as Extra Ordinary Leave (without pay and allowances).
Appellant's appeal before the Departmental Authority remained abortive and his appeal before the Service Tribunal also met the same fate vide the impugned judgment. However, the learned Service Tribunal while dismissing appellant's appeal, converted the major penalty of dismissal from service into compulsory retirement.
4. Appellant in person submits that he was suffering from serious ailment; that he had sent medical certificates along with application for grant of medical leave which was not favourably considered; that he remained continuously under the treatment of civil surgeon who advised him not to resume duty unless he was fully recovered; that the Competent Authority in the Department before passing the final order, directed him to appear before the Medical Board to which he complied and the Medical Board vide its report dated 13-3-2006, declared him fit but the Competent Authority without adverting to the said report of the Board, awarded him major penalty which is not tenable in law.
5. Learned Deputy Attorney-General defended the impugned judgment and submitted that the appellant remained absent from duty and the Department was left with no choice but to award him major penalty of dismissal from service. However, when the Court confronted him as to whether the appellant remained sick for considerable long time, he replied that the medical certificates on record do indicate that he was sick. He was asked whether was it not proper for the Department to hold a regular inquiry in view of the allegations levelled in the show-cause notice, he in all fairness, submitted that the consistent view of this Court is that where the major penalty is to be awarded, a regular inquiry should be conducted.
6. Having heard appellant in person at some length and learned Law Officer, we find that the medical certificates annexed with the appeal, the direction issued by the respondent-Authority to the appellant to appear before the Medical Board and the MRI got conducted by the appellant on the advice of the Medical Board and even the final show-cause notice indicates that appellant was sick and unfit to resume duties. It is also on record that after the receipt of reply dated 19-3-2005 from the appellant, the Department had directed him to appear before the Medical Board more than once and it is not denied that he did appear before the Medical Board, who in its report dated 13-3-2006 reported as follows:-- "Medical Examination Report of Mr.Muhammad Abdul Moied, KPVO, Federal Bureau of Statistics, Islamabad.
' A meeting of Medical Board was held on 12-8-2005 regarding medical examination of Abdul Moied. After MRI and Neuro surgical opinion by Professor Khaleeq-uz-Zaman. He is declared fit.
(Sd.) (Sd.)
(Dr.M.A.Zaidi) (Dr.Jamal Zafar)
Associate Professor of Professor of Medicine General Surgery Chairman"
Member
7. Surprisingly without considering the afore-referred report, Major (R) Mehar Ali, Director Administration, imposed major penalty of dismissal from service in following terms:-- "Government of Pakistan Statistics Division Federal Bureau of Statistics, Plot No,17-C G-8 Markaz.
No, FBS.IBD. P-17/84-Admn-281 Islamabad, the 14th March, 2006.
Office Order No, 62/2006 ' Consequent upon disciplinary proceeding under the "Removal from Government Service (Special Powers ) Ordinance, 2000 as amended from time to time" and with the approval of Competent Authority a Major Penalty of "Dismissal from Government Service" is imposed upon Mr. Muhammad Abdul Moied, KPVO (BS-10), Federal Bureau of Statistics (H.Q.), Islamabad with immediate effect as he has been found guilty of misconduct under Rules 2(b) and 3(1)(b) of Removal from Service (Special Powers) Ordinance, 2000.
(2) The unauthorized absence period from 8-6-2004 to 13-3-2006 is treated EOL (without pay and allowances).
(sd.)
(Maj. (R) Mehar Ali) Director (Admn)"
8. In view of the allegations levelled against the appellant and several applications for leave on medical grounds as also medical certificates submitted by him before the Competent Authority in the Department and the realization of the Department itself that he needed to be examined by a Board regarding his health, it was imperative and in the interest of justice that a regular inquiry should have been conducted. This Court more than once, has reiterated the view that for awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry is called for. Following judgments of this Court reflects this view:--
(1) Alamgir v. Divisional Forest Officer 1993 SCM R 603 (2) Province of Punjab v. Muhammad Siddique Khan 2000 SCM R 1321 (3) Zahoor Ahmed v. WAPDA 2001 SCM R 1566 (4) Rashid Mehmood v.
Additional Inspector-General of Police 2002 SCM R 57.
9. For what has been discussed above, we are of the view that the impugned judgment insofar as it did not advert to the manner in which the regular inquiry was dispensed with and for not considering the law laid down by this Court to which reference has been made above, cannot be sustained. Consequently, this appeal is allowed, the impugned judgment is set aside. The appellant shall be reinstated in service forthwith and so far as the period during which he remained absent IB i,e, 8-6-2004 to 12-3-2005 and from the passage of the impugned order of dismissal till date is concerned, the same shall be treated as leave of the kind due and the remaining period as extraordinary leave without pay and allowances (He voluntarily agreed that he would not claim that). However, it would be open for the Department to carry out a regular inquiry, if it is deemed proper.
' In Civil Petition No, 719 of 2010
10. Learned Law Officer, in all fairness, submitted that since the concerned appeal has been allowed, he has no objection, if this petition is converted into appeal and allowed. Since the order of appellant's dismissal from service has been set aside by accepting his appeal (CA 1854 of 2008), this petition which has arisen out of the civil suit filed by the petitioner for retention of the official residence regarding which he was issued notice of vacation (after removal from service) is converted into appeal and allowed, the impugned judgment is set aside and petitioner's suit for declaration and permanent injunction is decreed throughout.