' A.
0. RAZIUR RAHMAN (MEMBER).-The appellant, who joined service as UDC/Cashier in the Air Port Health Department, Civil Air Port, Lahore in 19681 was selected and appointed as Assistant in the Ministry of Health, through an appointment letter issued by them on 14th February, 1976. He joined as Assistant in the said Ministry at Islamabad in 1976. He served for 2 years in the Medical Facilities Section. But, on 28th January, 1979 he was charge-sheeted for misconduct and, after he had submitted his explanation, he was dismissed from service, by an order issued by the Ministry of Health and Social Welfare on 23rd April, 1979 in which it was stated that he had been found guilty of the charge of misconduct and dismissed from service by the competent authority. Against this order, the Appellant made a representation to the President under the Civil Servants (Appeal)
Rules, 1977. The representation to the President was not competent, since the Appellate Authority in the case was the Minister for Health and Social Welfare and appeal against the impugned order lay before him and not the President. Therefore, the departmental authorities did not forward the representation to the President but, instead, advised the appellant to address his appeal to the Minister. However, before receipt of the reply from the department, he came up in appeal before this Tribunal after waiting for sometime beyond the statutory period prescribed in this behalf under the relevant rules.
2. The appeal having been admitted, the parties were heard in detail on 21st April, 1982.
3. The main facts, on the basis of which the charge of misconduct was preferred against the Appellant, are that, on 5th November, 1977, he sent an application stating that he was sick and unable to attend duty and that medical certificate would follow in due course. He was, however, informed by the Ministry on 27th November, 1977, and again on 11th December, 1977, that the leave applied for by him had not been granted and that he should report for duty immediately. It was, however, ordered that, if he could not report for duty immediately, he should submit a medical certificate in support of his leave application, failing which he would make himself liable for disciplinary action under the rules. Subsequently, a medical certificate, dated 5th November, 1977, was received from him in the Health Division on 3rd December, 1977, in which it had been stated that Mr. Muhammad Bashir was down with enteric fever and was advised rest and treatment till 4th December, 1977. However, he did not report for duty after 4th December, 1977 and, therefore, a telegram was sent to him by the Ministry on 19th December, 1977, asking him to resume duty immediately, failing which disciplinary action would be taken against him. In the meantime, another application had been received from him which was dated 10th December, 1977, wherein it was stated that he was still suffering from the same disease, that the doctor had advised him rest for another one month and that medical certificate would follow. In reply to this application, the Appellant was informed by the Ministry, on 23rd January, 1978, that, since the letter, dated 27th November, 1977, and telegram, dated 19th December, 1977, ordering him to either report for duty or produce a medical certificate in support of his plea of illness, had been received back undelivered with the remark that there was no person of his name at the given address, he was directed to get in touch with the Section Officer (Admin.) of the Health and Social Welfare Division, either in writing or personally, failing which he would be proceeded against on charge of misconduct under the Civil Servants (E & D) Rules, 1973 Subsequently, two applications, dated 18th February, 1978 and 22nd February, 1978, alongwith medical certificates for the period 5th January, 1978 to 4th February, 1978 and 5th February, 1978 to 4th March, 1978 respectively, were received from him stating that he had proceeded to his native Village on account of the sudden demise of his uncle. Thereupon, he was directed by a memorandum, dated 7th March, 1978, issued by the Ministry, to appear before the Civil Surgeon, Central Government Polyclinic, Islamabad on 11th March, 1978, for medical examination as regards his fitness or otherwise for resuming duties. This was followed by the receipt of two fresh applications, one dated December, 1977 accompanied by a medical certificate recommending rest for one month, and another dated 20th March, 1978, forwarding a report, dated 20th March, 1978, addressed to the Health Division by the Civil Surgeon, Central Government Polyclinic, Islamabad, in which it was mentioned that Mr. Bashir was suffering from Psychoneurosis and was advised rest for another month as well as to consult a Psychiatrist for treatment. On the basis of the _Civil Surgeon's recommendation, the appellant was directed, by the Ministry to report to Dr. M . H. Mubashir, Associate Physician of Central Government Hospital, Rawalpindi on 5th April, 1978 for treatment. On the failure of the Appellant to report to the Associate Physician, he was directed, by an order dated 11th May, 1978 to appear for medical examination before a Medical Board in the office of the Director, Central Health Establishments on 17th March, 1978 failing which disciplinary action would be taken under the rules. Meanwhile, another application, dated 11th May, 1978, was received from the Appellant, in which he had stated that he had, consulted the Psychiatrist of the Mayo Hospital, Lahore, who had advised him rest for another month that is from 5th April, 1978 to 4th May, 1978. The medical certificate in support of this statement was, however, not received in the Ministry. The appellant also did not appear before the Medical Board on 17th May, 1978 or on the subsequent date, 1. e. 25th May, 1978, fixed for the purpose. But, since the Appellant did not appear before the Director, Central Health Establishments, either on 17th May, 1978 or 25th May, 1978, the Director reported the matter to the Health Division.
4. It is clear from the sequence of events narrated above that the Appellant had been absenting himself from duty without permission right from 5th November, 1977 onward. He was charge- sheeted on 26th January, 1979 and directed to show cause against infliction of a major penalty, which would lead to his dismissal from service and disqualifying him from future employment under the Government. The Appellant who submitted his reply to the show-cause notice on 5th February, 1979 could not give any satisfactory reason for his inability to resume duty when ordered or for his failure to appear before the Medical Board for examination. He, however, claims that the letter directing him to report for treatment to the Psychiatrist and the letter requiring him to appear before the Medical Board were not received by him. Instead of admitting that he was not present at his Rawalpindi address, to which the letters had been dispatched, he claims that, since he had shifted to Lahore and left his Lahore address in the Ministry, the Ministry should have sent its communication to him to that address, instead of the Rawalpindi address.
5. From the narration of the facts, as given above and the discussion of the reply given by the Appellant to the show-cause notice, it is clear that the Appellant, who absented himself from duty from 5th November, 1977, and continued to do so right up to the date of his dismissal from service on 23rd April, 1979, kept on playing hide and seek with the Ministry all the time and, what is worse, when required to explain his conduct, tried to put the blame, for his failure to appear before the Medical Board, on the Ministry who according to him, did not send their communications in this behalf to the correct address. The Appellant's pattern of action all the time was to first remain absent without permission and later to ask for permission after the expiry of the period of leave applied for, followed by further absence from duty, without any application for leave or medical certificate showing justification for leave, after which, when orders for reporting for duty were issued, instead of resuming duty, to put in further application for leave without any medical certificate to support it and, therefore, to submit medical certificate much after the expiry of the leave applied for and finally to avoid consultation with the expert referred to or appearance before the Medical Board appointed for examining him.
6. The following events bring out clearly how on dodging the authorities all the time. He applied for leave on 5th November, 1977, the period of leave and without furnishing a the Appellant kept without specifying medical certificate
(1) to support his application.
(2) When the Health Division ordered him, on 27th November, 1977, to resume duty, he did not take any notice of this order. However, he submitted a medical certificate, which was dated 5th November, 1977, but was received in the Health Division on 3rd December, 1977, in which rest till 4th December, 1977 had been recommended.
(3) When a reminder was sent on 11th December, 1977, to the Health Division orders of 27th November, 1977, he again took 110 notice of it, but sent another application dated 10th December, 1977 for a further period of one month leave, i. e. From 5th December, 1977 to 4th January, 1978 on the medical ground, but without any support of medical certificate. This application was also received in the first week of January, i. e. Almost on the expiry of the extended leave applied for, while the medical certificate itself was received as late as 7th March, 1978.
(4) When the Appellant did not resume duty on 4th December, 1977, after the expiry of the period of leave recommended in the medical certificate dated 5th November, 1977, the Health Division sent a telegram to him on 11th December, 1977. The appellant did not take notice of this telegram also, but, instead sent his, leave application dated 10th December, 1977, referred to in (3) above, but, as already stated, almost at the expiry of the leave period and without the support of a medical certificate.
(5) Thereafter, he absented himself again from 5th January, 1978 to 4th February, 1978, without any intimation whatsoever. However, he sent a medical certificate, for the grant of leave from 5th January, 1978 to 4th February, 1978, which is dated 4th February, 1978 and was received in the Division on 22nd February, 1978.
(6) Again, after he had absented himself from duty after 5th February, 1978, he furnished another medical certificate dated ' 18th February, 1978, for a further period of one month from 5th February, 1978 to 3rd March, 1978, which, again, reached the Division only a few days before the period covered by the Medical Certificate.
(7) Later, when he was required to appear before the Psychiatrist nominated by the Health Division, instead of complying with the Health Division's order, he wrote to the said Division on 11th May, 1978, intimating that he had consulted the Psychiatrist at the Mayo Hospital Lahore, who had advised him rest for one month i. e. From 5th April, 1978 to 4th May, 1978. It is quite interesting to note again that the application for leave was submitted by him much after the expiry of the leave applied for and the certificate of the Psychiatrist was also not furnished along with the application for leave.
(8) The appellant was directed to appear before the Civil Surgeon Central Government, Polyclinic, Islamabad, on 11th March, 1978, in response to which he stated, in his application dated 20th March, 1978, that he had appeared before the Civil Surgeon, who had recommended him rest for one month, with effect from 20th March, 1978, and had also advised him to consult the Psychiatrist for treatment. But, when the Health Division ordered him to report to Dr. M. H. Mubashir, Associate Physician, Central Government, Rawalpindi on 5th April, 1978 positively for treatment and report, he did not carry out the order, but, instead of that he reported that he had consulted the Psychiarist of the Mayo Hospital, who had recommended him leave from 5th April, 1978 to 4th May, 1978. Again as already noted this application, which is dated 11th May, 1978 i. e. After the expiry of the leave period allegedly recommended by the Psychiatrist, was received as late as -22nd May, 1978, which shows that even if the leave said to have been recommended by the Psychiatrist was taken to have been duly granted, the Appellant had again over-stayed the leave by quite a number of days, to be precise by as many as 18 days.
(9)_After this, according in the Health Division, no further communication was received from the Appellant upto the date of his being charge-sheeted. The relevant file of the Division on the subject also does not contain any further reference from him after this date ; but the Appellant claims to have submitted applications for further leave on 3rd July, 1978, 18th July 1978, 7th August 1978, 27th September, 1978 and 12th November, 1978, asking for extension of leave up to 4th August, 1978, and making enquiry as to the fate of his application. In the absence of any certificate of posting, or receipt of registration, we cannot accept the statement of the Appellant that he had been making applications for extension of leave. But, even if this statement is accepted for the sake of argument, it is not contradicted by the Appellant that he did not make any application for extension of leave beyond 4th August, 1978. In other words, the period between 5th August, 1978 and the date on which he was charge-sheeted, namely, 28th January, 1979, the Appellant had -not bothered even to keep in touch with the department which he was supposed to be serving.
(10) When the Appellant was asked to appear before the Medical Board on 17th May, 1978 and, subsequently, on 25th July, 1978, he failed to do so and he pleaded that, as he had gone to his native village, he could not get intimation about the Medical Board in time. During the hearing, he took the stand that he went to the President of the Board 5 or 6 days later, but he has not been able to explain why he did not report this fact to his department and ask for further date for a Medical Board.
7. From the above analysis of the Appellant's Modus Operandi, it should be clear to any person with the smallest intelligence that his conduct and performance qualify him fully for the title of the Artful Dodger, who eluded the reach of the department in which he was employed and defied all their efforts to make him resume duty after he had decided on his own to avail leave with effect from 25th November, 1977. Indeed, it must go to his credit that he kept the Health Division busy about almost nothing for as many as 15 months, at considerable loss of public money and time and the energy of officers and staff of the Health Division, who would, otherwise, have been doing something more useful. The Appellant's attitude, towards his responsibility as an employee of the State has been proved to be one of complete indifference and callousness and the manner in which, in his reply to the show-cause notice, he tried to make the Admn. Section of the Health Division appear as the villain of the piece, out to do him harm, only show him up as an adept in the art of misuse of intelligence.On the whole, his conduct, both during his absence from duty and in his response to the show-cause notice and subsequently show him up as a vastly clever and scheming individual, completely lacking in discipline or straightforwardness, totally impervious to the call of duty, absolutely reckless, irresponsible, and slippery-on the whole thoroughly unfit for retention in Government Service. We are therefore, satisfied that the Appellant had rightly been awarded the major penalty of dismissal from service and we are fully convinced that any interference by us with the order of dismissal would be an act of grave injustice to the cause of good order or discipline and decorum in public service.
8. In the petition of appeal, as well as in the course of arguments, it was urged on behalf of the Appellant, that the proceedings which culminated in his dismissal from service were wrongly conducted under Rule 5 (1)(iii) of the Civil Servants (Efficiency and Discipline) Rules, 1973, when they should have been undertaken under Rule 5(1)(ii) of the said rules. It was argued that the option of issuing show-cause notice and deciding on the basis of the reply from the accused could only be exercised when the allegations were undisputed and very few questions of fact were involved. It was further argued that, since the case of the Appellant warranted ascertaining of facts, the only option available to the concerned authority was to hold an enquiry through an Enquiry Officer, as contemplated under Rule 5 (1) (ii). On the basis of this, it was claimed that the entire proceedings had been vitiated and rendered a nullity in the eye of law. We are unable to accept this stand of the Appellant, in view of the facts of the case already discussed by us in great detail which clearly shows that the option exercised by the Authorised Officer, in deciding that it was not necessary to have enquiry conducted through an Enquiry Officer or an Enquiry Committee, was exercised judiciously discreetly, and not in an arbitrary manner. The facts of the case being clear and undisputable, the question of holding an enquiry, recording evidence and giving findings according to evidence did not arise. The other option of issuing show-cause notice and deciding on receipt of reply from the accused, was followed. The Appellant was given a show-cause notice by the Authorised Officer on 26th January, 1979, to which he submitted a reply on 5th February, 1979, which was considered by the Competent Authority who having found him guilty of misconduct, passed the order of dismissal under Rule 5(1) (iv) of the Govt. Servants (Efficiency and Discipline)
Rules, 1973. We do not detect any procedural irregularity in these proceedings, nor do we find that the Appellant was in any way prejudiced in his defence or that reasonable opportunity of showing cause allowable under the rules in any way denied or curtailed. We are, therefore, fully satisfied that the appellant has no cause for grievance on any, technical ground whatsoever.
9. The impugned order being both justified by the facts and circumstances of the case and unassailable on technical or procedural grounds, we find no ground for interference with the said order. The appeal is, accordingly, dismissed with costs fixed at Rs, 100.