' A.
0. RAZIUR RAHMAN (MEMBER).-The Appellant, Mst. Sardaran, was a sweeperess employed in the Income-tax Office, Companies' Circle, Faisalabad. At first she was a contingent paid employee, but later she was placed on regular basis as a temporary employee. She had put in about 8 or 9 years of service when, on 3rd January, 1979, she was served with a charge-sheet issued by Mr. Zulfiqar Rashid, Income-tax Officer, Companies' Circle, Faisalabad.
' The text of the charge-sheet is reproduced below :- "That you are not regular and have been found absent from duties on more than one occasion.
' That explanations furnished by you were found unsatisfactory and not to the point.
' Thus you have been found guilty of "Service Misconduct" and after considering allegations it has been decided under sub-rule (2) of Rule 5 of the Government Servants (Efficiency and Discipline)
Rules, 1973 to hold formal enquiry against you. The allegations if established will call for a major penalty."
' The Appellant claims to have replied to the charge-sheet. According to her, her reply was not given proper consideration and her services were terminated by an order, dated 18th February, 1979, giving her 15 days' notice, which expired on 6th March, 1979, on which date she stood removed from service.
4. The Appellant submitted a departmental representation to the Income-tax Officer on 26th February, 1979, praying for cancellation of the order. No action was taken on this representation by the Income-tax Officer. Later, that is on 13th March, 1979 she claims to have preferred an appeal before the Commissioner of Income-tax, Faisalabad (stationed at Multan) against the impugned order. Respondent No, 1, viz, the Commissioner of Income-tax, Faisalabad (now at Multan). Denies that any appeal was filed before him. However, on 11th July, 1979, she approached the Tribunal under section 4 of the Service Tribunals Act, 1973. Assuming that the appeal was filed on 13th March, 1979, the appeal before the Tribunal was within the prescribed time limit of 120 days. The departmental appeal was also within the time limit of thirty days.
5. The main grounds on which the impugned orders were assailed by the Appellant are listed below :
(a) The enquiry was conducted in a partial manner and the report of the Enquiry Officer was not supplied to the Appellant.
(b) The reply given by her to the charge-sheet was not given due consideration.
(c) The Appellant was removed from service on the plea that, being a female, she could not cope with the work for which a male sweeper was considered more suitable. It was, thus, a case of discrimination against her on account of sex.
(d) The punishment of removal from service was harsh, excessive and ' unjustified.
6. In his written objections, Respondent No, 1 had made out the following points which, were reiterated by the learned counsel appearing for him, at the hearing before us
(a) The Enquiry Officer conducted the enquiry in a judicious manner and the services of the Appellant were terminated after a due process of law and after providing her full and fair opportunity to vindicate her case.
(b) The reply of the Appellant to the charge-set was duly considered and her services were terminated after judicious consideration of her reply.
(c) he services of the Appellant were terminated for inefficiency and due to the reason that. On account of the shifting of the office, her services were no longer required, because she was now surplus to requirement ; but the main reason was her inefficiency.
(d) The appeal had no merit and was liable to be dismissed on account of two misstatements made by the Appellant, viz. (i) that she was a "permanent" employee of the Income-tax Department; (ii) that the termination notice was given to her on 18th March, 1979, when, actually, it was given to her on 18th February, 1979.
7. So far as the facts are concerned, there is no dispute on the main points, which are listed below :
(1) The Appellant had put in 8/9 years of service as an employee of the Department, when she was removed from service with effect from 16th March, 1979.
(2) She was charge-sheeted for "service misconduct" and an Enquiry Officer was appointed to conduct an enquiry into the charge.
(3) She was removed from service on three grounds :
(i) Inefficiency ; (ii) Being surplus to requirement ; (iii) A male sweeper was more suitable for the job.
8. The main point on which the parties give different versions are given below :
(a) The Appellant alleges that the enquiry was not conducted properly and that due consideration was not given to her reply to the charge-sheet. The Respondent denies this.
(b) The Appellant claims to have preferred a departmental appeal before the Commissioner of Income-tax. The Respondent denies this.
(c) The Appellant alleges that the report of the Enquiry Officer was not supplied to her to enable beer to offer her objection to the action proposed against her. The Respondent's stand is that supply of the Enquiry Officer's report was not necessary.
(d) According to the Appellant, the punishment of removal was not justified in the circumstances of the case. Although this point has not been formally contested by the Respondent, it is obvious that he does not concede the point.
9. Taking up first the technical point, noted at (c) of the preceding paragraph, we would like to observe that whereas the Appellant has furnished to us what is claimed to be a "True Copy" for her departmental representation, addressed to the Commissioner of Income-tax, the Respondent has produced neither the case papers of the departmental proceedings nor any other evidence to establish that the alleged representation was never submitted. However, from the facts and circumstances of the case, it seems quite probable that the Appellant may have submitted the representation in question. She did not fail to submit her reply to the charge-sheet in time and was vigilant enough to submit an application to the Income-tax Officer against the order of her removal from service. If she mistakenly treated this as the departmental appeal required to be made under the law, the error is both understandable and excusable and can be ignored, since the concerned departmental authority neither informed the Appellant that she had preferred her appeal to the wrong quarters nor presented the appeal to the appropriate authority. In view of this, we are inclined to give the Appellant the benefit of doubt and accept her statement that the requirement of preferring the departmental appeal has been met.
10. As regards (a) of paragraph 9 (ante), since the papers pertaining to the departmental proceedings were not produced before us, we are not in a position to judge as to how far the procedural requirements of law relating to enquiries of this nature were actually followed. All we can say is that no material was produced before us to persuade us to believe that the charge of misconduct levelled against the Appellant was established and brought home to her. In view of this, we have no option but to give the benefit of doubt and hold that the charge of what has been termed "service misconduct" was not proved beyond reasonable doubt.
11. As regards (c) of the disputed points, viz. Non-supply of the report of the Enquiry Officer, we are of the view that the E and D Rules, A 1973 do not prescribe any such procedure and, accordingly, the proceedings would not become vitiated on this account, if, otherwise, the fact established at the enquiry justify the action taken.
12. In regard to the last point of divergence, namely, that the punishment of removal from service on the ground stated in the charge-sheet and repeated in the impugned order, was excessive and not justified in the circumstances of the case, we have no hesitation in observing that removal from service is much too severe a punishment for absence from duty on some occasions. The employee, having been in service for about 8/9 years, must have done good work to have been placed on regular footing, although, to begin with she was only a contingent paid employee.
Therefore, she deserved rather lenient treatment, if her performance had deteriorated subsequently.
13. Apart from our comments on the points of contention between the parties, we would like to make some observations on the discrepancy between the charge-sheet and the impugned order.
Whereas the Appellant was charge-sheeted only on the ground of absence from duty "on more than one occasion", the termination order says "you are not punctual and quite often you have been warned about negligence of duties and unsatisfactory work but without any fruitful results."
Besides this, two other reasons for termination of service have been mentioned in the order. These are that she was surplus to requirement and that a male sweeper was preferable to a female for the new premises. It is difficult for us to comprehend why, after the employee had been charge- sheeted for misconduct and found guilty, the concerned authorities thought it necessary to find other grounds to justify their decision to terminate her services. Evidently, her "unsatisfactory performance" did not appear to them sufficient to justify her removal from service. Therefore, they added two other grounds, which are contradictory to each other. It she was surplus to requirement, there was no question of choice between a male and a female sweeper. If, on the other hand, she was not suitable for the job, on account of being a female, the question of her being surplus or otherwise was immaterial.
14. Our own view of the matter is that there was not enough material against the Appellant to justify her removal from service on the ground of "misconduct". In view of the departmental stand that a male sweeper could do the job better, the alleged superfluity of the Appellant also appears to be highly doubtful. It is also not axiomatic that the job of sweeping a big office building can be better performed by a male sweeper than by a female. Most people know that many large office buildings are properly looked after by female employees and that sweeperesses are as good at the job as male sweepers. We are, therefore, not at all impressed by the grounds adduced in the impugned order of termination of the Appellant's service.
15. As regards the two "misstatements" alleged to have been made by the Appellant, we are of the view that they are not of such serious nature as to be taken cognizance of. It is understandable that the Appellant who is illiterate, not fully conversant with the intricacies of service rules and totally unfamiliar with the English language may not have either known the correct import of the expression "permanent employee" used on her behalf, or even that such an expression was used, and need not, therefore, be penalized for an inaccurate statement-on this point in her petition. As for the statement that the impugned order was passed on 18th March, 1979, this is obviously a typing mistake, without any attributable motive and fit to be ignored.
16. In view of the foregoing, we are satisfied that the impugned order cannot be justified on merit and deserves to be set aside. We, therefore, allow the appeal and order that the Appellant be re- instated in service forthwith. The period she has remained out of job is to be treated as Extraordinary Leave without pay.
17. No order as to costs.