' SAYED MEHAR HUSSAIN SHAH (MEMBER).--- The appellant through this appeal has challenged the order dated 6-7-2006 whereby minor punishment of stoppage of increment for two years from the date it falls due was imposed upon the him. Against the said punishment, appellant preferred a departmental appeal on 15-7-2006, which was rejected on 16-8-2006; hence, this appeal.
2. The learned counsel for the appellant argued that while posted at RPL, Karachi, Cantt. On 19-5- 2006, he was served with show-cause notice alleging that he had submitted direct application to the Inspector General PRP Lahore for his transfer from Karachi to Multan Division, without observing proper channel, which amounts to breaking the chain of command. His main arguments was that major penalty was imposed upon the appellant without holding a regular departmental inquiry, which is not legal and in support of his arguments, learned counsel relied on 2004 PLC (C.S.) 438, 2008 PLC (C.S.) 593, 2009 PLC (C.S.) 19, 2006 SCMR 846, 1994 PLC (C.S.) 713. He also contended that sending application direct to the high officer to bring his grievance is not an act of misconduct and relied on 1981 PLC (C.S.) 501, 2006 SCMR 104 and 2008 SCMR 1507.
3. Learned counsel appearing for the respondents contended that show-cause notice was issued to the appellant for sending application of his transfer direct to Inspector-General of Police which is against the discipline of the Force. He argued that the impugned order was lawful whereby the punishment of stoppage of increments for two years was inflicted. The dispensing of formal inquiry under section 6(4) of the Removal from Service (Special Powers) Ordinance, 2000 is not barred by the law. He argued that upon availability of sufficient material the orders of minor punishment could be pissed without conducting formal inquiry.
4. We have considered the above arguments, advanced on behalf of both the parties. The show cause notice dated 19-5-2006 was admittedly issued to the appellant on the allegation, "For your gross misconduct in that you have submitted an application to the IG/PRP/CPO Lahore directly for transfer from Karachi to Multan Division without observing proper channel which amount to breaking the chain of command". The above issue was dealt with by the Hon'ble Supreme Court in the case of Miss. Rashida Khatoon v. Secretary, M/o. Industries and Production and 3 others reported in 2008 SCMR 1507, in the following words. Paras-5, 6 and 7 whereof is reproduced hereunder:--- "(5) (sic.) The expression "misconduct" has been defined in section 2(b) of the Removal from Service (Special Powers). Ordinance, 2000 as under:-- "misconduct includes conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentleman or involvement or participation of gain either directly or indirectly in industry, trade or speculative, transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions or persons such as may cause embarrassment in the performance of official duties or functions."
(6) The act of a person which is prejudicial to the good order or service discipline or unbecoming of an officer and gentleman, is definitely a misconduct, but mere sending the representation by a subordinate directly to a senior officer is hot as such an act which may be treated prejudicial to good order or service discipline or unbecoming of a good officer and a gentleman. The perusal of record would show that the petitioner a junior with the intention to bring her grievance to the notice of concerned authorities made a representation directly to the Chairman with the expectation of an appropriate relief and we having perused the letter in question, have not been able to find, out anything objectionable in the language used therein to be treated insulting or derogatory against the senior officers constituting an act of indiscipline or of unbecoming of a good officer in terms of the Definition of misconduct rather the initiation of action against the petitioner on such a ground would create an impression that she was victimized due to her personal annoyance. '
(7) In the light of the foregoing reasons, we are constrained to hold that filing of such a representation to bring to the notice of higher authorities the personal problem being faced by the petitioner would not be ipso facto termed as misconduct and consequently, we convert this petition into appeal and while setting aside the penalty of reduction to lower rank, modify the judgment of Tribunal accordingly and allow this appeal with no order as to costs."
5. Keeping in view the above rule of law, laid down by the Hon'ble Supreme Court, we set aside the impugned order dated 6-7-2006 as well as appellate rejection order dated 16-8-2006 and allow the appeal with no order as to costs.
6. Parties are informed accordingly.