Moazzam Hayat, Member.--Appellant Muhammad Siddique, a Stenotypist in the service of respondents, was awarded penalty of withholding of increments, due on 01.12.2010, for a period of three years and withholding of promotion for a period of three years vide order dated 05.01.2011 under the Removal from Service (Special Powers) Ordinance, 2000. His departmental appeal dated 20.01.2011 was not responded. Hence this appeal.
2. A complaint was made against the appellant by Section Officer (R-IV), Regulation Wing that the appellant was habitual absentee from duty. The appellant was suspended on 11.01.2011 and charge sheeted on 14.01.2010. Mr. Muhammad Afzal Ajiz, Deputy Secretary was appointed as Enquiry Officer.
He submitted his inquiry report on 16.02.2010. The charges against the appellant were that he was taking leave without permission, was slipping away from the office during office hours, was absent from duty on 07.01.2010 without any permission, was directed by Section Officer(R-IV) to mend his ways on 09.01.2010 on which he raised hue and cry and misbehaved with him, gave reply that he was not willing to work and refused to come office in time, did not care for warnings/advices given to him and that his conduct was prejudicial to good service. Charge No, 1 of coming late and slipping away during office hours was not proved. Whereas remaining charges were proved.
Charge Nos, 5 & 7 were partly proved. On the basis of inquiry report a show-cause notice was issued to him on 24.02.2010 to which he submitted his reply on 03.03.2010. He was given opportunity of personal hearing on 1 5.03.2010.
3. Earlier the appellant had filed Appeal No,1137(R)CS/2010 which was decided on 08.11.2010. A direction Was issued to the respondents to hold de novo proceedings against the appellant. It was as a consequence of the de novo proceedings that the appellant was awarded penalty in question.
4. The appeal is resisted by the respondents. It is stated that the appellant had been penalized strictly in accordance with rules after a regular inquiry was held against him in obedience to the direction of the FST.
5. We have heard the learned counsels for the parties and have also perused.
6. The Enquiry Officer had recorded evidence, perused registers and papers submitted by the appellant including medical certificates. He had arrived at conclusion that the Charge No, 1 of coming late to office and slipping away during office hours was not proved. The remaining charges were proved wholly or partially. It was clearly stated by the S.O(IV) that the appellant's attitude and conduct had been derogatory and insulting. An official is required to be behave with his seniors. If he misbehaves he commits serious misconduct. We see no reason to reject the evidence of S.O
(IV) and hold that the appellant had committed misconduct by misbehaving with him. As such he was liable to be penalized. Other charges were also proved against him. He had not cared much for warnings and advices given to him from time to time. His behaviour was prejudicial to the good order and service. He had remained absent on 07.01.2010 without permission and was in the habit of granting leave to himself.
7. However, the Enquiry Officer had recommended penalty of censure and withholding of increments for a period of two years. He had not recommended the penalty of stoppage of promotion for two years. The competent authority could disagree with the recommendation of the Enquiry Officer but for that justiciable reasons should have been recorded. We have seen the impugned order. The competent authority had not recorded any reason for awarding additional penalty of stoppage of promotion to the appellant. Hence this penalty was not warranted.
8. The learned counsel for the appellant has argued that under the Ordinance penalties of censure and withholding of increments could not be awarded to the appellant simultaneously. His argument is not correct. Section 3(1) of the Removal from Service (Special Powers) Ordinance, 2000 clearly says that the competent authority may impose one or more minor penalties as prescribed in the Government Servants (E&D) Rules, 1973 made under Section 25 of the Civil Servants Act. Thus the competent authority could award more than one minor penalties to the appellant. The argument of the learned counsel for the appellant is repelled.
9. Minor penalties have been provided in Rule 4(a) of the Government Servants (E&D) Rules, 1973.
The first minor penalty is censure. The second penalty is withholding of promotion or increments for a specified period. Under this rule either the penalty of withholding of promotion can be awarded or penalty of stoppage of increment can be awarded. Both the penalties cannot be awarded together. Rule 4(a)(ii) of the E&D Rules, 1973 reads as under:-- "withholding, for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post."
It shall be seen that word 'or' is used in the above mentioned provision of law. The penalty can be of stoppage of withholding of promotion or of increments. The word 'and' has not been used in this provision. As such the penalties of withholding of promotion and withholding of increment cannot be awarded together. One of the two penalties can be awarded in addition to penalty of censure.
10. In the above circumstances, we allow the appeal to the extent that the appellant is awarded penalty of censure and withholding of increments for a period of two years. The period for which this penalty has been imposed is of three years. But it is fixed at two years as recommended by the Enquiry Officer.
11.The impugned order as regards stoppage of promotion is set aside. It is also directed that the penalty that the appellant shall be kept under observation for six months shall be treated as an administrative order and not a penal order under the Removal from Service (Special Powers)
Ordinance, 2000.
12. There shall be no order as to costs. Parties shall be informed.