S. ABDUL JABBAR KHAN (CHAIRMAN).-Muhammad Ismail, ex-Junior Clerk, Deputy Comams loner's Office, Faisalabad, has filed this appeal under section 4 of the Puirjab Service Tribunals Act, 1974, in which he has impleaded Mr. Abdul Waheed Deputy Commissioner, Faisalabad, Commissioner, Sargodha Division, Sargodha and Government of the Punjab, as respondents.
2. By virtue of this appeal the appellant has prayed that the order of dismissal passed by the Deputy Commissioner dated 5th February, 1980, as well as order of learned Commissioner dated 13th April, 1980, by which the appellant has been dismissed from service, be set aside and he be re- instated in service with all back benefits.
3. Brief facts of the case are that the appellant while serving as Junior Clerk in the Deputy Commissioner Office, Faisalabad, also held me office of President of the District Ministerial Service Welfare Asso--ciation, D. C. Office, Faisalabad, He was elected thrice as President of the said Association. This Association was fully recognised one and was formulated to ventilate grievance of ministerial staff of the said D. C. Office.
4. It so happened that one Muhammad Rafiq Shah Senior Clerk Jaranwala was transferred to Mianwali on 4th March, 1974, which transfer he resisted on the ground that he would be murdered at Mianwali as he had a number of enemies in that area. However, the said Rafiq Shah was dismissed from service for his defiance to proceed towards his new place of posting. It was in this connection that a telegram was issued after holding the meeting of the Association to the Higher authorities intimating that this order of transfer and dismissal was illegal. The after math of this telegram culminated into registration of case against the appellant under section 29 of the Telegraph Act and the appellant was arrested by the Police on the same date via. 20th May, 1979.
How--ever, later on these proceedings were dropped. The matter also went before the Lahore High Court for quashment of said proceedings. The High Court was pleased to stay the proceedings. The appellant was charge-sheeted and. Enquiry Officer was appointed, who submitted his Inquiry Report, to the Authorised Officer holding .The appellant guilty. The said Authorised Officer moved the authority i. e. Deputy Commissioner for imposing a major penalty on the appellant. The appellant was thus dismissed by the Deputy Commissioner and his order of dismissal was upheld by the learned Commissioner Sargodha Division Sargodha. Hence this appeal.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart--ment and have perused the record of this case carefully with their assis--tance.
6. Learned counsel for the appellant has submitted that the basis of appellant's dismissal from service was registration of criminal case against him vide F. I. R. 173 dated 20th May, 1979. Which could not stand the test of maintainability before the High Court in Criminal Revision No. 556/79, and the Government ultimately withdrew the same. It has been further submitted that an the face of it no offence was made out and, therefore, the aforesaid telegram which was the subject matter of dispute, could not be styled as false. According to the learned counsel this telegram was only to ventilated the grievances of the Association which had passed a Resolution and the appellant was duty bound as its President, to communicate the same. The learned counsel has further highlighted the point of malice and annoyance on the part of Deputy Commissioner, who according to him, took this telegram as personal affront and acted in a vindicative manner. The learned counsel has made a grievance of the fact that when the respondent did not resist writ petition and its grounds so given therein, the same charges could not have been made the subject-matter of adjudication once again. Accord--ing to learned counsel this would be an act of frustration of the orders of High Court. He has also vehemently challenged the charge of miscon-- duct, as according to' him, the act of the appellant would not fall under the definition of misconduct so defined in the Act itself.
6. On the other hand respondent Deputy Commissioner in his comments has submitted that telegram given by the appellant was against the context of the Resolution, so passed by the Association, therefore, the appellant has transgressed his limits of duty towards the Association by using the word `illegal' which was never used by the said Associa--tion. It has been further submitted that the entire procedure adopted by Respondent No. 1 was in accordance with law and the appellant was given every chance to defend himself. It has been pointed out that charge- sheet was served, Enquiry Officer appointed by the Authorised Officer and after the result of the inquiry, action was taken by the authority on the recommendations of the Authorised Officer, who recom--mended that the appellant should be imposed with a major penalty. Respondent No.1 has denied the attribution of malice towards him and has submitted that the case of Rafiq Shah was also decided on merits to which no exception could be taken by any body.
7. We have given our anxious thought to the arguments so advanced before us by both the parties and would first of all reproduce the charge--sheet for ready reference as under :-
(1) That he gave a telegram through the postal authorities, to the Commissioner, Sargodha Division, Sargodha which runs as follows :- "Illegal Dismissal of Mr. Muhammad Rafique Shah Assistant of our Office by Deputy Commissioner Faisalabad ( . ) Shocked this Association ( . ) Kindly re-instate the aggrieved person forthwith and direct D. C. Not to act in this manner in future".
(2) That by standing the above telegram, he falsely gave an impres--sion that the dismissal of Mr. Muhammad Rafique Shah of this office was illegal although all legal formalities were completed before passing the final orders.
(3) That by doing so he gave an incorrect telegram not based on facts.
(4) That he gave the telegram without adopting the proper channel of obtaining prior permission of his appointing authority and thus he acted in an insubordinate manner.
(5) That his telegram to the Commissioner to re-instate the above official was against the Efficiency and Discipline Rules.
(6) That his act in asking the Commissioner to direct D. C, not to act in this manner in future was impertinent.
The entire reading of the charge-sheet will disclose that although it has been splitted up into six parts yet it is the result of one action of the appel--lant for his sending a telegram to his superior directly calling the act of Rafiq Shah's dismissal as illegal. In order to assess the strength of this charge-sheet, it would also be useful to reproduce the language of the Resolution which required the appellant to send the said telegram : - "Illegal. Dismissal of Mr. Rafique Shah Assistant of our Office by Deputy Commissioner Faisalabad shocked this Association ( . ) Kindly re-instate the aggrieved person forthwith and direct Deputy Commissioner not to act in this manner in future (. )"
We are also reproducing the original language of the Resolution which is in vernacular as under :- The only exception taken by the Respondent No. 1 in this case is that the word `illegal' (ghiar qanooni) does not find mention in the context of the said Resolution therefore, the addition of this word had given a false impres--sion to the superiors of the Deputy Commissioner that his action against Rafique Shah was illegal. In this respect we have also taken notice of the writ petition which was filed as Revision No. 556 of 1979, Muhammad Ismail v. Ch. . Abdul Waheed etc. In which Dr. Khalid Ranjba appeared on behalf on the appellant. This writ petition was in connec--tion with the registration of the case under section 29 of the Telegraph Act, This was admitted by learned Judge of the High Court and stay was granted in the pending criminal case, with the direction that no final order would be passed till the said writ petition stood disposed of. It has also been admitted by the Respondent No. I that said writ petition was withdrawn with the explanation that as the appellant had since been dismissed from the service, therefore, the said writ petition was not resisted.
8. With regard to the procedure so adopted against the appellant by the authority, we do not find any legal defect in the same as the same was carried out meticulously in accordance with the rules and procedure laid down in this behalf. The only point for consideration before us, is that the use of word `illegal' in the telegram was justified by the appellant or not. We have carefully read the contents of the Resolution so passed by the Association and find that although the Association had expressed its strong resentment over the act of Deputy Commissioner respondent by dismissing M.
Rafiq Shah from service, but nowhere we find that it was stated that the said act of the D. C. Was illegal (ghiar qanooni) Our assessm ent in this matter would be that the telegram was not happily worded and do exceeded the mandate given to the appellant by the Association. What we find is that this unhappy use of the word landed the appellant in great trouble as he suffered confinement in Jail for prosecution under Telegraph Act under the orders of Respondent Deputy Commissioner.
It is an established fact that he lost his job ultimately for the use of this word which found place in the said telegram.
9. We cannot remain oblivious of the fact that by withdrawal of the case under Telegraph Act, respondent in a manner conceded that the case under the said section was not justified. This being so, we have no hesitation to repel the argument of the respondent Deputy Commissioner that despite his earlier concession before the High Court he was justified to proceed against the appellant by departmental action for the same Act.
10. Our entire assessm ent of the case is that appellant who was President of a recognized Association did exceeded his limits either wittingly or unwittingly which did cause annoyance to his ultimate boss the respondent Deputy Commissioner. We are also aware of the fact of the case of Rafiq Shah which came twice before the Tribunal, when once he succeeded on legal grounds and at second time he failed to achieve success, as his appeal was dismissed by the Tribunal in the second round of litigation. We are aware that in the case of said Rafiq Shah the respondent Deputy Commissioner was maligned by him as the language used by the said Rafiq Shah against respondent Deputy Commissioner as well as learned Commissioner was highly arrogant as well as impertinent. So the background of Rafiq Shah's case did not stand fully obliterated from the mind of respondent Deputy Commis--sioner who fell with heavy hands on the appellant when he found that the appellant also supported said Rafiq Shah in signing the disputed telegram. In view of the above we are of the considered opinion that although the appellant was not within his rights to use the word `illegal' in the said telegram, yet the sentence so imposed upon him was positively disproportionate to the offence with which he was charged. We have seen the service record of the appellant and cannot call it as chequered one.
11. In view of our above analysis of the gravity of the offence and the background of the case, we proceed to vary the sentence of dismissal with that of censure and stoppage of three annual increments without cumulative effect. Resultantly, the appeal is partially accepted in the above terms. The parties shall bear their own costs.
Appeal partially accepted.