' A.
0. RAZIUR RAHMAN (MEMBER).-The Appellant was appointed as Upper Division Clerk in the Collectorate of Customs, Customs House, Karachi on 10th August, 1969. He was Graduate at the time of his appointment. On 29th August, 1972, he made an application to the departmental authorities for promotion/appointment to the post of Preventive Officer and, in response thereto, he was informed, on 5th September, 1972 that his case for promotion as Preventive Officer would be considered at the time of filling up of vacancies. After some time, i.e. On 24th April, 1976, the Appellant applied for permission to appear at the departmental promotion examination for the post of Preventive Officer. He was allowed to appear at the examination and he passed the same.
Thereafter, on 29th September; 1976, he was relieved on his duty as U.D.C. In the office of the Assistant Collector of Customs, Appraisement, East Wharf, Karachi by an order which reads as follows :- "OFFICE OF THE ASSISTANT COLLECTOR OF CUSTOMS APPRAISEMENT EAST WHARF SHEDS ' No. ACA (5)/18/76-E. W.
' Karachi dated 29th September, 1976.
' RELIEVING ORDER ' As per verbal instructions of Assistant Collector of Customs, Establishment, on his departmental promotion as Preventive Officer, Mr. Ghulam Hadi Baluch, U. D. C. Is hereby relieved from his duty in forenoon dated 29th September, 1976 and directed to report to Assistant Collector of Customs, Establishment immediately. Sd/- (KHALIL AHMED) Flt. Lt. ' Assistant Collector of Customs Appraisement, East, Wharf."
' On the strength of his letter, he joined his duties as Preventive Officer and an Identity Card, showing him as Preventive Officer, was issued on 4th October, 1976, by the Collector of Customs, Karachi. However, after the lapse of about three weeks, i. e. On 27th October, 1976, the Inspector Incharge of his Group prevented him from performing his duties as. Preventive Officer. He was, however, not given any written order in this behalf, in spite of the request made by him to his Inspector. According to the Appellant, he reported the matter to the Collector of Customs as well as Assistant Collector (Appraisement), under whom he had been working as U. D. C. Before promotion, but both of them told him that he was not duly appointed as Preventive Officer and, as such, he could not be allowed to work in that capacity. Nothing having been given to him in writing, the Appellant felt aggrieved that he had been unjustly removed from the post to which he had been promoted. Therefore, on 4th November, 1976, he filed a civil suit in the Court of the Civil Judge, Karachi for declaration and injunction in his favour. This suit was dismissed by the Civil Judge on 31st July, 1977, on the ground that it was barred under Article 212 (2) of the Constitution and section 3(2) of the Service Tribunals Act, 1973. Against this decision of the Civil Judge, the Appellant preferred an appeal in the Court of the District Judge, Karachi, which is still pending. Meanwhile, on llth December, 1976, he applied to the Collector of Customs (Preventive) for a certified copy of the order of reversion from the post of Preventive Officer to U. D, C., purported to have been passed by the Collector. Failing to get any reply, he made another application on 22nd September, 1977, again repeating his request, on the ground that he wanted to go up in appeal against the order of his reversion to the departmental authorities and the Service Tribunal. To this also, he did not get any reply, but, by an order dated 23rd July, 1978, he was placed under suspension on the ground that there existed a prima facie case of misconduct against him. This was followed, after some months, by an order dated 2nd April, 1979, requiring the appellant to show cause against disciplinary action on the following grounds :-
(1) He assisted some persons in removing, from the Appraising section, the file relating to fraudulent clearance of a car imported without payment of taxes.
(2) He assisted the same persons in forging customs documents and fraudulently obtaining signature in the forged documents.
(3) He constantly absented himself from duty since the detection of the case to avoid involvement.
' The Appellant replied to the show-cause notice on 17th April, 1979, categorically denying all the allegations. While doing so, he characterized the first two allegations as totally false. In respect of the third, he stated that much prior to the alleged transaction, pertaining to the import of car without payment of duty, he had filed a civil suit in the Court of the Civil Judge, Karachi and that, in pursuance of an order for maintenance of status quo passed by the Civil Judge, he had applied more than once to the Collector of Customs for permission to resume duty as Preventive Officer, on the strength of the Court's injunction. He also pleaded that, since the case of fraudulent impart of a car, without payment of Custom duty, was the subject matter of a criminal case in the Court of the Special Judge (Customs and Taxation), Karachi, in which the Appellant was also an accused, it would be appropriate if the show cause proceedings relating to the transaction were kept in abeyance till the disposal of the criminal case. Quite some time after this, namely, on 7th February, 1980 the Collector of Customs, by an Officer Order, bearing No. 62/80-Est (P), found that the charge of deliberate and continuous absence had been established against the Appellant and, therefore, in exercise of the powers conferred upon him by rules 4(b) of the Government Servants (Efficiency and Discipline) Rules, 1973, he ordered the removal of the Appellant from service with immediate effect. This order was received by the Appellant on 13th February, 1980 and he preferred an appeal against it before the Central Board of Revenue on 12th March, 1980 to which no reply was received by him before he came up in appeal before the Tribunal on 12th June, 1980, but, which was subsequently rejected by the Board during the pendency of this appeal.
2. Both the parties were heard at length on 1st June, 1982 and the documents on record examined with reference to the respective stands of the two sides. Since the Appellant had been removed from service only on one charge, namely, that of deliberate and continuous absence from duty, the only point of contention between the parties was whether the said charge had been established against the Appellant and whether he was given a reasonable opportunity of defence against it.
3. From the show-cause notice, dated 2nd April, 1979, served on the Appellant, it is seen that he was required to show cause against disciplinary action under rule 4(b) of the Government Servants (Efficiency and Discipline) Rules, 1973, and also asked to put in his defence under rule 6 of the aforesaid rules. After he had put in his written defence explanation, the impugned order was passed on 7th February, 1980, in which it was clearly stated that in view of the criminal case already pending in the Court of Special Judge, the charge of collusion in forging of customs documents and obtaining "out of charge" signature on the forged documents as well as of removing the file relating to the fraudulent clearance of a car imported without payment of taxes, had been deferred till the decision of the case in the Court of the Special. Judge but that finding had been given in respect of the charge of deliberate and continuous absence from duty which, in the opinion of the competent Authority, namely, the Collector of Customs (Preventive) Karachi, had been established and, the Authorised Officer having recommended a major punishment, the said Competent Authority ordered the removal of the Appellant from service with immediate effect, under rule 4(t)(6) (iii) of the Government Servants (Efficiency and Discipline) Rules 1973. Admittedly, the final order in the case was passed by the Collector of Customs after perusal of the record, which included the show-cause notice (charge-sheet), the explanation submitted by the Appellant, and the report submitted by the Authorised Officer, namely the Deputy Collector of Customs (Preventive) Headquarters. In spite of the fact that, in the original show-cause notice the Appellant was asked to state if he wished to be heard in person, the case was decided without personal hearing having been given to him. It appears that, because in response to the plea of the Appellant that his involvement, in the matter of the forging of documents and the removal of the file pertaining to the import of a car without payment of taxes, being sub judice in the Criminal Court, proceedings relating to this be deferred till the decision by the Criminal Court, the Collector of Customs thought it desirable to defer the proceedings in that behalf for the time being and to deal only with the question of his absence from duty. Since absence from duty was an undeniable fact, obvious from the departmental record, a detailed enquiry relating to that charge was not considered necessary by the Collector. It would have been proper, in the circumstances, for the Collector to record his decision in this behalf in so many words. That he did not do so in the instant case, however, in no way prejudiced the Appellant in his defence. He had already been asked to show cause why one of the major penalties should not be inflicted on him and he had also been given a reasonable opportunity of showing abuse against the said action. While the cause shown in respect of other charges was accepted and the proceedings deferred, he failed to show any understandable cause against action on the ground of continuous absence from duty. His reply to the show-cause notice on this point was simply evasive and beside the point. He failed to explain why he remained absent from duty from sometime in September/October, 1979 till the date of his suspension, namely, 23rd July, 1978. However, from the documents on record, it is seen that he had, on 29th September, 1976, somehow, obtained a relieving order, from the Assistant Collector of Customs (Appraisement) East Wharf, with instructions to report to the Assistant Collector of Customs (Establishment) and, on the basis of this, he had procured an Identity Card showing him as Preventive Officer under the Collector of Customs and had, on that basis, started working without any valid posting order having been issued to him by the competent Authority. When this irregularity was detected, the Appellant was prevented from working as Preventive Officer by the Inspector In charge of the Group and this was followed by continuous and prolonged absence from duty by the Appellant, who should have reverted to his former office and resumed work as U.
D. C. Under the Assistant Collector of Customs (Preventive) East Wharf, but who. Instead of doing so, carried on prolonged and hectic campaign for being allowed to work as Preventive Officer. In the process, he even went to the Civil Court and carried on litigation against the Government all the time without attending to his duties. These facts were so clear and undeniable that detailed enquiry relating to them was not at all necessary. Even the Appellant himself, in his reply to the show-cause notice, did not deny his absence from duty and admitted that he had not been attending to his duties as U. D. C. But insisting, all the time, on being allowed to work as Preventive Officer, a post to which he had never been appointed or posted at any time. For him, therefore, to say now that the charge relating to his absence from duty required a formal enquiry is to expect too much latitude in the matter. His failure to explain his absence from duty being obvious, the punishment of removal from service was fully justified. In reaching this conclusion, we are, no doubt, conscious of the fact that, in spite of the fact that the original show-cause notice gave the Appellant the option of asking for personal hearing, which was requested by the Appellant, this was not actually granted. This, no doubt, constituted a departure from the prescribed procedure. But it has not materially affected the vires of the proceedings, because the Appellant has neither been prevented from offering his defence nor has his point of view been ignored.
4. Looking at the case in its totality, we find that, in spite of the fact that there have been procedural lapses during the departmental proceedings against the Appellant, the simple fact remains that hit removal from service has been ordered on account of his continuous absence from duty. The Appellant having failed, either to establish that he was no absent from duty or, to adduce any reasonable excuse for his absence, the charge against him remains unrequited, for which the punishment of removal from service is neither harsh nor excessive. In view of this, there would be no justification for taking the view that the procedural irregularity of the Appellant not having been given a personal hearing is so serious as to vitiate the proceedings.
5. In the circumstances, we are of the opinion that the impugned order of removal from service passed against the Appellant need not be interfered with. The appeal is, therefore, dismissed.
6. No orders as to costs.