' Mrs, Nusrat Babar has filed this appeal under section 4 of the Punjab Service Tribunal Act of 1974 against the order of her dismissal dated 24th July, 1980 passed by Miss K. Thomas, Chief Nursing Superintendent, Nishtar Hospital, Multan. Her appeal against the said order was declared as 'not in accordance with the procedure laid down under the rules' by the Secretary Health vide letter dated 27th August, 1980. By virtue of this appeal the appellant has prayed that both the impugned orders dated 24th July, 1980 and 27th August, 1980 be set aside and she may be re-instated in service with all the attending benefits. She has also prayed that costs of the appeal may also be awarded to her.
2. Brief facts of the case are that Mrs. Nusrat Babar was employed as Staff Nurse in the year 1967 in the Nishtar Hospital Multan. She was served with a show-cause notice dated 9th May, 1980 when she was serving at the same job at the same place. This show-cause notice was given by Miss K.
Thomas, Chief Nursing Superintendent, being Authorised Officer and Authority. This show-cause notice was responded by the appellant with the request that she may be provided with a number of documents so mentioned in the request in order to enable her to submit a complete reply.
Unfortunately, after sending the letter in which request had been made for the supply of documents the appellant fell ill. It was again on 12th April, 1980 (after about a month) that she received another notice on behalf of Miss K. Thomas in which she was told that relevant documents were being provided mention of which was given in the letter and was asked to submit complete reply. The appellant remained ill until 24th July, 1980 (about 4 1/2 months after the charge-sheet).
In between the period of illness and till she was dismissed from service one letter dated 1st July, 1980 was issued to her asking the appellant to appear on the 10th of July, 1980 for personal hearing if she so chose and for explaining her conduct. The appellant was dismissed vide Order No, PF/16194/NH dated 24th July, 1980 (Annexure Q). The appellant filed an appeal (Annexure 'P') with (1)
Secretary Health, (2) Deputy Secretary Health (Incharge Nursing), Government of Punjab, Lahore,
(3) The Director Health, Multan, (4) The Director Health (Administration and Establishment), Lahore and (5) The Medical Superintendent, Nishtar Hospital, Multan on 21st August, 1980, and a copy of the same was endorsed to Miss K. Thomas, Chief Nursing Superintendent, Nishtar Hospital, Multan. A reply was received vide No, S. 0 (MCW) 9-13/79 dated 27th August, 1980 from F. R. Qureshi, Under Secretary (MCW) for Secretary Health. This letter while quoting rule 14 of the Punjab Civil Servants (E & D) Rules, 1975 informed the appellant that her appeal was not in order according to the said rule.
Another letter from Medical Superintendent, Nishtar Hospital, was received by the appellant bearing No, PF/19024/NH dated 3rd September, 1980 (Annexure Q/1) which informed the appellant that her appeal was not in order and referred to contents of the earlier letter which were the basis of the said letter. Hence this appeal.
3. I have heard the learned counsel for the appellant as well as the learned District Attorney for the respondents and I have perused the record of this case with their assistance. It has been urged on behalf of the appellant that the appeal was filed in accordance with rule 14 and the same was endorsed to the Dismissing Authority i,e, Miss K. Thomas, According to the learned counsel no deviation or non-compliance of this rule has been committed by the appellant and, the only objection which possibly can be taken by the respondents in this case would be that why this appeal was not sent independently to the Medical Superintendent and an independent copy directly to Miss K. Thomas and thus the omission of the same would not be a non-compliance of rule 14. The learned counsel has vehemently contested this point of view by submitting that it is the spirit and not the form which would be the subject-matter of this issue. Even the form is also there when a copy of the appeal has gone to the Medical Superintendent and a copy of the same to Miss K. Thomas. It has been further submitted that by joining few others in this exercise, may be a lack of knowledge of proper procedure but that would not in any manner substantially detract from the compliance of rule itself. Elaborating this argument the learned counsel submitted that it was incumbent upon the Appellate Authority as well as Miss K. Thomas to attend to this appeal which came before them independently or through the Head of Office. To enter into technicalities of frivolous nature and avoiding the substance has definitely made the order so passed as unlawful.
While concluding on this issue it has been submitted by the learned counsel that the real issue has been side-tracked in this case which was the illness of the appellant which disabled her to appear or to pursue the remedy and the same is supported by numerous medical certificates and hospital record which under the law could not be rejected by the punishing authority or by the appellate authority because it has been held in a number of cases decided by the Tribunal and Superior Courts of the country that medical certificates cannot be rejected unless for cogent reasons.
4. The impugned order was further assailed on the ground that Miss K. Thomas assumed the role of Authorised Officer as well as the Authority which she could not do in accordance with rule 6(4) read with rule 8 of the E & D Rules. According to the learned counsel in the case of the appellant Miss K. Thomas assumed both the roles which has already submitted would be in flagrant violation of rule 6(4), read with rule 8 for the reasons that the Government has taken care to split the responsibility with two Authorities in order to safeguard the interest of a civil servant and to give him or her a fair treatment. It was further pleaded that this rule has created two distinct Authorities as a check so that if some injustice has occurred on a lower tier the same could be corrected at the higher level. It was concluded by submitting that Miss K. Thomas became the judge of her own cause which is against the principles of natural justice. The violation of the same would be harsh, unjust and illegal.
5. While dealing with rule 6(4) of E & D Rules it was further pointed out that it also envisaged an enquiry by Authorised Officer not necessarily by some other person but enquiry was a 'muse as the words `shall determine' used in the sub-rule followed by the word 'proved' connote that for determining something a probe would be necessary and to prove something against somebody evidence would be sine qua non of the matter. According to the learned counsel this legal flaw which was mandatory is sufficient by itself to declare the impugned order unlawful. Mr. Mahmood Nawaz Babar the learned counsel for the appellant urged that the charge-sheet is divided into two main allegations (i) refusal of the appellant to acknowledge the correspondence and (ii) her willful absence from duty. With regard to the first part of the charge it was stated that Miss K. Thomas being under the person who had to conduct correspondence with the appellant (as this falls within pigeon hole of the Medical Superintendent). Therefore, it would be logical to presume that Miss K.
Thomas would hardly be in a position either to define or level a charge with which she had no concern at all. To support this argument it has been submitted that there is nothing on record to show that the Medical Superintendent ever conveyed to Miss K. Thomas the history of the correspondence and the refusal of the same between him and the appellant.
6. The charge of willful absence.-It was stated that the appellant applied for six months leave for private affairs from 1st February, 1980 to 31st July, /980. Her application was misplaced for ulterior motives and when she learnt the scheme of things which was being cooked against her she sent another application tnrough Registered Post on 21st February, 1980. It has also been submitted further that the appellant fell ill on 31st April, 1980 and joined the hospital and was advised to take complete rest for three weeks under Medical advice from Nishtar Hospital. It was argued that she never recovered and remained under treatment both in Nishtar Hospital and Mideast Medical Centre Karachi and other Medical persons till she was removed from service. The entire Medical history of the appellant is on the record in the form of certificates and other data. While supporting his arguments on the point that the first application of the appellant for leave (Annexure IX) was misplaced by Miss K. Thomas a letter has been read before me by the learned counsel and it has been pointed out that the appellant in the view of the Punishing Authority was a "mighty problem" which according to her (in black and white) had to be removed. It has been argued that the authority which bad made up her mind much earlier than this controversy would hardly be a person to dispense justice in the case of the appellant. As soon as she got an occasion she solved the "mighty problem" by her removal.
7. While referring to the impugned order the learned counsel pointed out that it is full of extraneous matters with regard to the extra official activities imputing certain political motives. According to the learned counsel incorporation of such like imputations which were not a part of the charge- sheet were strictly illegal and even deprecated as well as struck down by various decisions of this Tribunal and superior authorities, the reason being that the punishing authority has to keep itself within the frame of charges levelled, otherwise the defendant civil servant would not be in a position to defend itself when he or she is not aware of what are the charges against him or her.
Moreover, it was submitted that this would create a bias in the mind of the punishing authority and thus her judgment would not be independent relating to the main charges itself. To support these arguments the learned counsel has read out a concluding paragraph of the impugned order and has laid stress on the words 'In view of the above'. According to him the word 'above' includes all the paragraphs mentioned in the impugned order. After dealing with this part it was further pointed out that there are no reasons given for holding the appellant guilty which is required to be given independently so that the authority above or the Tribunal while dealing with such orders should know the basis for the punishment so awarded.
8. Lastly, it was argued that under the E & D Rule. There is a clear provision which enables the punishing authority to act. As authority and pass any punishment. Similarly, there is a construction of 'Authorised Officer' for check and balance to take necessary measures to prove the guilt of a person so accused. In view of the existence of such rules the assumption of office as 'Authority' by Miss K. Thomas under the Health Department Delegation of Power Rules of 1971 would make the order patently illegitimate.
9. On the other hand the learned District Attorney has also relied on sections 13 and 14 of the E & D Rules. He has pointed out that the use of the Word 'shall' will make the compliance mandatory as it says in unequivocal manner that the appeal is to be filed only before the appellate authority.
According to the learned D. A. The failure of the appellant to take her case in appeal before the Appellate Authority, which was Medical Superintendent in her case, independently, would be in contravention of rules 13 and 14 and the Appellate Authority therefor the officers or others of that Department were fully justified to consider the appeal so dispatched to them by the appellant as `no appeal' at all. He has relied on the famous dictum of law that if the law requires things, to be done in a particular manner it has to be done in that manner or not at all. It was further contended that enabling section under the Punjab Service Tribunal Act is section 4 to file appeals before this Tribunal which clearly lays down that unless and until a civil servant has exhausted all the remedies available to him or to her no appeal would be before this Tribunal. Therefore this appeal is liable to be dismissed on this short ground only. The learned District Attorney has taken a strong exception to the fact that the appellant had been told that her appeal was not in order and that she should have filed a fresh appeal and sought condonation of the delay from the Appellate Authority as laid down under rule 13. The failure of the appellant would be considered intentional and no such appeal would be entertained under the law at this juncture.
10. With regard to the objection of the appellant's counsel that the scheme of rules envisaged two different functionaries while dealing with the civil servant accused of certain charges and the same could not be combined in one, he has submitted that a reading of rule 2, sub-rule (3) would make it clear that an authority can himself act as 'Authorised Officer' therefore the argument of the appellant was misconceived.
11. The learned District Attorney has also referred to Schedule to Health Department Delegation of Powers Rules, 1971 and has pointed out that according to this Schedule the major penalty would be awarded by the Head of Institution and minor punishment would be dealt with by the same officer, therefore, no illegality has been committed when Miss K. Thomas assumed the role of 'Authorised Officer' as well as the role of 'Authority'. In nutshell the roles of the 'Authorised Officer' and 'Authority' have been combined in one person.
12. Dealing with the objection taken by the learned counsel for the appellant that the punishing authority assumed the role of the 'Authorised Officer' was under obligation to hold an enquiry with regard to the charges levelled against the appellant, it has been submitted that as the charges hinged solely on documentary evidence therefore there was no necessity to go into the evidence or to make any enquiry in this regard either by itself or by appointing an Enquiry Officer. No prejudice has been caused to the appellant by the course taken by the punishing authority and the same was validly dispensed with under rule 6, sub-rule (3) of the E & D Rules.
13. After disposing the legal objections made by the learned counsel for the appellant it was stated that even the merits of the case do not justify any interference. It was submitted that the competent authority nurtured no malice against the appellant as the appellant was granted by her leave for six months on various grounds from 1st August, 1979 to 31st January, 1980. If there would have been any ill will or venom the leave could have been refused by her even at that stage.
It was further elaborated that although there existed certain remarks against the appellant by the competent authority on one of her applications (Annexure IX) yet it is also borne out from the record that after recording such remarks the very authority treated with grace the application of the appellant for a long leave covering a period of six months without creating any obstacle in her way. After the expiry of this leave it was urged that the appellant was required to resume duty on 1st February, 1980. She did not do so and had made wild allegation not based on any record that her earlier application was misplaced due to ulterior motives but the same is not borne out from the facts on record that the later application which was sent under Registered Post does not make any grievance that her earlier application was misplaced by the competent authority or otherwise in the office. This ground now taken before the Tribunal is definitely an afterthought. To show the good faith of the competent authority it has been contended that once the appellant was admitted in the hospital and was recommended leave for 1 month and 23 days the same was granted. As all these applications were supported by medical certificates none was refused. The learned District Attorney has further submitted that leaving aside the period covered by the medical certificates the undisputed fact is that the appellant remained absent from duty from 1st February, 1980 to 21st February, 1980. As this period is not supported by any application on her behalf on medical ground or otherwise it would be proved that she had absented herself wilfully.
With regard to her later application through Registered post which also covered this period it was submitted that even in this application no medical ground was urged, and the reason given was 'Private Affairs'. When this application was rejected she was informed to resume duty and to apply afresh but she did not obey this order.
14. With regard to medical certificates and other documents adduced by the appellant to support her case that she was all along ill and could not attend to her duties, a reference was made to rule 8.16 of CSR, Punjab, Vol. I, Pait I, wherein it was urged that mere support of medical certificate does not confer any right on a person for grant of leave and he is required to wait for sanction of the same. Any disregard in this matter according to the learned District Attorney will be absence from duty. With regard to the method of submission of medical certificates and other documents by the appellant it was submitted that according to para 528 of Chapter VII of Punjab Medical Manual (which has got strength of the Rules) a certain procedure has been laid down which was not observed by the appellant. With regard to the genuineness and the effectiveness of the medical certificates and other supporting documents placed on the record by the appellant, the learned District Attorney submitted that first of all these documents were not regular medical certificates and were mostly prescriptions and if at all those were the medical certificates they were not from authorised Medical Practitioners and the same needed countersignatures of the Chief Medical Officer. Therefore, no reliance can be placed to accept them as documents exonerating the appellant from the charge of wilful absence. He has further supplemented his arguments by stating that the appellant was moving all over the country therefore she could easily make herself available to the competent authority so that her genuineness could be assessed by her also as she belonged to medical profession. Therefore, it would not be fair to give her this concession of avoiding a contact between her and the competent authority.
15. The learned District Attorney has also made a grievance against the appellant's conduct that she was adamant not to make herself available for personal hearing before the competent authority, a fact which stands proved by a number of notices and ultimately a proclamation appearing in the newspapers.
16. It was further urged that charges against the appellant were not two but three and the third one was that she was holding an office in an organization which was not recognized by the Government or the competent authority. Therefore, she was also liable for disciplinary action against her. According to the learned District Attorney this charge stands unrequited although there is sufficient record in the form of press-cuttings to prove that she was indulging in political activities.
17. With regard to the argument of learned counsel for the appellant that the impugned order was full of extraneous matters, the learned District Attorney submitted that these extraneous matters were not matters of any serious allegations or part of the charges but was only background of the case without affecting the merits, under consideration before the competent authority.
18. The learned counsel for the appellant has submitted that the assertion on behalf of learned District Attorney that the charge-sheet comprised of three charges including that of her extra official duty it was sufficient to disprove the same by the concluding paragraph of the charge- sheet or the impugned order as both of these are devoid of any specific allegation in this respect which can be termed as misconduct.
19. I have given my anxious thought to all the points raised by the parties in this case and find that the main issues which need adjudication are as under :-
(I) Whether the appellant is guilty of willful absence or not;
(ii) Whether the appeal filed by the appellant against her removal was an appeal as envisaged under rules 13 and 14 of the E & D Rules for that purpose;
(iii) Whether the authority could assume the role of an authorised officer in this case.
20. With regard to issue No, (i) I have looked into the record of this case and find that the appellant was granted leave by the competent authority for six months on various grounds from 1st August, 1979, to 31st January, 1980. She was required to resume duty on 1st February, 1980 but she remained absent from duty from 1st February, 1980 to 21st February, 1980. This period of absence is not supported by any application on her behalf on medical ground or otherwise. I do find that she made application through registered post for the grant of leave of this period but the same was not sought on medical ground but on the ground that she had to attend some private affair. This application was rejected and she was asked to report herself on duty but she failed to do so. Under rule 8.16 of the C. S. R. Punjab Vol. I Part I, a civil servant cannot presume herself/himself to be on leave just because that the application so forwarded is supported by a medical certificate. It is incumbent upon a civil servant that she/he had to wait for the sanction o the leave so requested and cannot proceed at his own sweet will. An argument has been advanced from the side of the appellant that she has actually been granted this leave when she tendered her application in the office and an assurance was given to her by the Nursin Superintendent the competent authority to proceed on leave. This argument has been vehemently contented by the Respondent on valid grounds by submitting that this plan was not made by the appellant either in the appeal before the appellate authority or before the Tribunal as well as second application received through registered post. Similarly we cannot accept her further contention that this application was misplaced due to the malice of the competent authority who had expressed her displeasure about her conduct on some earlier stage while granting her leave. The reason being that if the competent authority i. e. Nursing Superintendent was having any grievance based on malice she would have not accommodated her in the earlier leaves granted to her for a period of six months from time to time. This attitude of the Nursing Superintendent which was benevolent towards the appellant can at the most be dubbed an attitude of an indignant or annoyed officer. I am of the considered opinion that such like allegations which stand controverted by the facts on the record can only be termed as wild, vague and hard. In view of above I have no hesitation to hold that the appellant remained absent from 1st February, 1980 to 21st February, 1980 and thus was guilty of misconduct without making any application for this period at the due time. I also find that she remained absent till the issue of the charge-sheet on 9th March, 1980 and also remained absent during the enquiry proceedings. She only appeared before the Enquiry Officer when a proclamation was issued in the press directing her to make herself available and made reply to the show cause notice. I am unable to accept the stand of the appellant that during this period she was also ailing and thus could not appear before the Enquiry Officer. Assuming that she was in the Nishtar Hospital for medical checkup but that period was only a few days and thereafter she was discharged. If she could travel all the way to Karachi for a medical treatment in Mid East Centre or with other Medical Expert she could easily appear before the relevant authority and to apprise the same about her illness or inability to join the proceedings. I have also looked into the prescriptions, medical certificates and other such documents of different Medical Officers from different places and have gathered the impression that such like collection of medical documents was only to avoid joining the enquiry proceedings. Under the Punjab Medical Manual Para 2.58 of Chapter 7, a certain procedure has been laid down for a civil servant and he/she is required to follow the same. I do not find any regular medical certificate duly countersigned by the Chief Medical Officer, therefore the value of the prescriptions and other such documents is reduced to minimum. I also further find that even after filing a written reply to the show-cause notice after the same was published in the newspaper the reply which was submitted on 2nd April, 1980 is incomplete in view of documents which she had supplied. After this she again became scarce and did not avail the opportunity of personal hearing which was so granted to her. The conduct of the appellant during this period is that of a malinger who chose for herself to defy the orders of her superiors and failed to perform a noble job of Staff Nurse which she was both under legal as well as moral obligation to do so.
I have looked into appeal (Annexure 'P') and find that the same is addressed collectively to Secretary Health, Deputy Secretary Health, Incharge Nursing Government of Punjab Lahore, Director Health, Multan, Director Health (Administration and Establishment), Lahore, Medical Superintendent, Nishtar Hospital, Multan with endorsement to Chief Nursing Superintendent, Nishtar Hospital, Multan. An appeal is always to be filed to the next higher authority as provided under rule 13 of the E & D Rules and Delegation of Powers Rules. In this case the next higher authority was Medical Superintendent and the appeal was to be presented to the Chief Nursing Superintendent, who had to communicate the same to the appellate authority alongwith the comments. What I find is that despite the fact that the appellant's husband was a senior Advocate, she chose to adopt a method which was against the procedure laid down under the E & D Rules and the Delegation of Powers Rules. It is also on the, record that when Exit. 'P' which is portion of this appeal, came to the notice of the Secretary Health and the Appellate Authority, she was informed that her appeal was not in accordance with the rules. It was incumbent upon her to file a proper appeal and not to remain contended with Exh. Which in no manner can be considered an appeal as required under the Rules.
I cannot ignore the argument of the learned District Attorney that when no proper appeal has been filed before the next higher authority, the appeal before this Tribunal would be barred by section 4 of the Punjab Service Tribunal Act of 1974. In my considered opinion this forceful argument hits on the very roots of the case so before me. In view of above I am of the firm view that the appellant was duty bound under the Rules to file a proper appeal before the next higher authority before she sought a remedy before this Tribunal.
' While dealing with the third issue of this case I rely on sub-rule (3) of rule 2 of Punjab Civil Servants E & D Rules, 1975 in which it has been laid down that the authorities empowered to award major punishment under the various Delegation of Powers Rules was in respect of civil servants to exercise the power of authority under the E & D Rules while in the case of minor punishment it would be the authorised officer who will deal with the delinquent under the E & D Rules. While adverting to Delegation of Powers Rules 1 find that the Chief Nursing Superintendent would be the authority as well as the authorised officer in this case. In view of the settled decision of law as discussed above the appellant has been held in regular manner and no violation of E & D Rules has been committed.
' I have attended carefully the two objections raised by the appellant that the mode of judgment so delivered against her smacked of extraneous charges which do not form part of show-cause notice and therefore she could not be condemned on that score. It has been further argued that the punishment of removal from service was not due to willful absence but due to a personal malice and bias which was the background of this ultimate finding. I have gone through the show- cause notice which was published in the Pakistan Times on 9th March, 1980 and find that the appellant was indicated with matters which have formed part of the judgment against her, therefore it cannot be said that the mention of her subversive activities or being a member of an Organization not recognized by the competent authority was uncalled for.
' In the light of above discussions, I do not find any force in this appeal which is liable to fail on merits as well as on law. There will be no orders as to costs.