' M. SALIM CHAUDHRY (CHAIRMAN).-This is an appeal filed by Mr. Nasir M. Khan, appellant, against the order of retirement from service under Martial Law Regulation No,
58. Mr. Nasir M. Khan was appointed as Assistant Engineer in the Punjab P. W. D. On 7th November, 1947. He was promoted as Offg : Engineer in 1952 and as Officiating Superintending Engineer in January 1964. The appellant was substantively appointed to Junior Class I on 24th July, 1959 and was confirmed as Executive Engineer, Senior Class w. e. f. 14th October, 1965 and confirmed as Superintending Engineer w. e. f.
15th May, 1966. He was placed under suspension under M. L. R. No, 58 while serving as Superintending Engineer, Public Health Engineer, Lyallpur, vide suspension order dated 4th December, 1969. The appellant received a charge-sheet accompanied by a Statement of Allegations on 11th February, 1970. He submitted his reply on 21st February, 1970 and appeared before the Military Tribunal No, 2 on 3rd April 1970 at Karachi. The appellant was compulsorily retired from service under M. L. R. No, 58, w. e. f. 19th May, 1970, vide Government of Punjab's Notification dated 28th May, 1970.
2. The following six charges were levelled against the appellant :-
(1) Whereas you, Mr. Nasir M. Khan, Superintending Engineer, Public Health Engineering Circle, Lyallpur (now under suspension) in violation of service discipline and Government instructions directly entered into correspondence with Chief Secretary, Government of West Pakistan, you are thus charged for 'misconduct'.
(3)
(2) And whereas, you wilfully gained access to the files containing confidential correspondence which you were not authorised to see, you are thus charged for 'misconduct'.
And whereas, you wilfully absented yourself from duty although you were informed well in time that your leave had not been sanctioned by the Chief Engineer, you are thus charged for 'misconduct'.
(4) And whereas, you in the representation which you submitted against the Chief Engineer used harsh and abusive language, you are thus charged for 'misconduct'.
(5) And whereas. You in connection with the cancellation of your transfer to Quetta, offered to Mr..
Mustafa Hassan Zaidi, Secretary, Basic Democracies, Social Welfare and Local Government Department, Govt. Of West Pakistan, an amount of Rs, 10,000 as illegal amount of gratification and when he refused to accept the same amount you threatened him with dire consequences, you are thus charged for 'misconduct'.
(6) And whereas, you enjoy a persistent reputation for corruption, you are thus charged for being 'corrupt'.
3. The appellant was exonerated from charges Nos. 1, 2, 5 & 6 by the Military Tribunal and only Charges Nos. 3 and 4 were held to be proved against him. The appellant has alleged mala fides on the part of Mr.. Mukhtar, Chief Engineer and Mr. Zaidi, Secretary, Basic Democracies. Whatever the justification for making the allegations, no evidence has been recorded and, therefore, no verdict can be given on the question of male fides. As a matter of fact, both Mr. Mukhtar and Mr. Zaidi were themselves dismissed under M. L. R. No, 58 and, therefore, they could not have been instrumental in M. L. R. No, 58 proceedings against the appellant.
4. The appellant has, apart from the mala fides, raised certain legal objections like :-
(i) the Military Tribunal did not take into account the contentions of the appellant and the order based on such a report suffers from serious irregularities :
(a) contrary to mandatory provisions of the statute ;
(b) Report one-sided and ex parte ;
(c) the merits of contentions of the appellant were necessary in order to enable the competent authority to come to a proper conclusion ;
(ii) stage of show-cause notice is reached after an enquiry has been held
(iii) there can be no question of show-cause at the stage of the service of charge-sheet and
(iv) appellant not confronted with the evidence.
' For the purpose of this case it is not necessary to discuss the legal objections raised by the appellant as the appellant succeeds on merits.
5. (a) The allegation in charge No, 3 is that the appellant applied for ten days casual leave from 9th June, 1969 to 18th June, 1969 which was disallowed by the Chief Engineer and he was ordered by means of two communications to reach Quetta. The appellant did not comply with the orders and remained absent from his Headquarters. The appellant's contention is that he made repeated requests for long leave in order to avoid victimization at the hands of Mr. Zaidi, the then Secretary, L.
G. & S. W. Department and Mr. Mukhtar, the then Chief Engineer, with whom he had a dispute regarding seniority and over whom the appellant had been declared senior. The appellant repeatedly requested for ten days casual leave for this reason and the serious illness of his mother, vide his letter dated 7th June, 1969 which was not replied till 4th July, 1969. The leave was refused by the acting Chief Engineer, Mr. Mukhtar. The leave was turned down on the ground that the appellant, who had been posted at Quetta should be present at Quetta during the visit of the Governor on 8th June, 1969. The appellant's contention is that he tried to reach Quetta but accommodation for travel was not available and he was informed by the Commissioner's Office and Assistant to Commissioner, Quetta whom he contacted that he was not required at Quetta.
Certificates on non-availability of accommodation on train and planse have been produced by the appellant. The appellant's contention is that the charge is misconceived, misleading, vitiated, mala fide and contrary to Government instructions (Page 805 of 0 & M Establishment Vol. I)
(Revised) 1974 Edition, which lays down that a civil servant can legally assume sanction of leave in case of illness or demise of a near relative. According to the appellant, the casual leave was refused simply to deny him the opportunity to attend to his seriously ailing mother. The respondent's contention regarding Charge No, 3 is that casual leave cannot be claimed by a civil servant as a matter of right and it depends on the authority competent to sanction the leave. It was the duty of the appellant himself to contact the Chief Engineer and enquire about the decision on his application. Moreover, there is no question of mala fides on the part of Mr. Mukhtar and the fact remains that the appellant was not sanctioned leave by a person who is competent to allow the same. In our opinion, if the matter was so serious as it is now made out to be, the appellant should have been suspended by the competent authority at the relevant time. Permission for leave is necessary but there was a certain element of service rivalry in the matter of seniority vis-a-vis the Chief Engineer, Mr. Mukhtar, and this may have led the Chief Engineer to refuse casual leave.
Moreover, the appellant's case is covered by Govt. Instructions quoted by the appellant. The charge is, therefore, not proved against the appellant.
(b) The allegation in Charge No, 4 is that the appellant in his letter dated 14th June, 1969 addressed to Secretary, Basic Democracies referred to his Chief Engineer alleging that "he (Chief Engineer), therefore, out of sheer malice and extreme selfish motive wrote to him on 6th June, 1969 that he should not have left his jurisdiction". The appellant added that "he (Chief Engineer) out of sheer venom and in classic example of abuse and misuse of power and authority is trying to damage his career." The charge is that the appellant did not conform to official decorum regarding use of proper language. The appellant's contention is that charge is baseless since Mr. Mukhtar was neither his senior officer nor his Chief Engineer having been declared junior to the appellant on 28th May, 1969. Mr. Mukhtar was only holding acting charge of the post of Chief Engineer and he was only a Superintending Engineer. The appellant denies that the words used by him were harsh and abusive words. According to the appellant, the words used are "Malice", "selfish nature", "abusive" and "misuse of powers" which are used frequently in departmental representations. The appellant has pointed out the High Court's observations regarding Mr. Mukhtar's conduct. The appellant has cited the case of Central Service Tribunal contained in the case of All Hassan v. Secretary, Establishment (I)
"Indiscriminate directions incited so-called intemperate language. One being directly responsible for the other it shall have been ignored...
' It has been argued by the respondent that the appellant, vide his letter No, 580/MNK/69, dated 15th June, 1969 used unparliamentarily language, un becoming of an officer of his status. Moreover, he has addressed an Officer who was holding a higher position. According to the respondent this is a case of misconduct and is covered by M L R 58 which includes service discipline. In our opinion, it is unfortunate that a junior officer was placed above a senior officer when between the two officers there {{FOOT NOTE}}
(1) NLR 1975 C 177 {{FOOT NOTE}} ' was serious service rivalry and cases were going in Court including the High Court. The High Court had already made observations on the conduct of Mr. Mukhtar, but even in spite of this appellant should hay been more careful and polite while addressing the acting Chief Engineer. It can be said that the appellant used harsh but not abusive language.
6. Charge No, 4 has been proved only partly against the appellant but is not of a serious nature as to result in infliction on the appellant the order of compulsory retirement. We would have liked to administer a warning but there is no provision in M L R 58 for the issuance of a warning. As a result of the view taken by us the appeal is accepted and the order of retirement from service of Mr. Nasir M. Khan is set aside.