' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant joined the N.-W.F.P. Health Department on 19th July, 1954 and was confirmed in senior scale w,e,f, 1st July, 1970. As a result of his selection by the Federal Public Service Commission, he was appointed as Associate Physician/Civil Surgeon, with effect from 4th February, 1975 and until further orders vide Government of Pakistan, Ministry of Health gazette notifications, dated 27th February, 1975 and 19th March, 1975. Vide Central Government Polyclinic Islamabad Office Order No, 107, dated 27th May, 1975 the appellant was transferred to sub-health centre No, 1, Islamabad in his capacity as Associate Physician/Civil Surgeon. The appellant protested.: against this transfer on the plea that he had been selected by the Federal Public Service Commission as Associate Physician/Civil Surgeon in the Polyclinic Islamabad and that transferring him out of the said institution amounted to changing his terms of service to his detriment. He was posted back to the Polyclinic.
2. Vide Ministry of Health Office Order, dated 6th June, 1975, the appellant was transferred from the pest of Associate Physician/Civil Surgeon (Grade-18) Central Government Polyclinic Islamabad and appointed as Medical Superintendent (Grade-I8) in the same Polyclinic. The appellant preferred an appeal on 8th June; 1975 against this posting as Medical Superintendent on the ground that it was a non-practising post, the like of which he had held for over ten years and that as Medical Superintendent he might be allowed, by name to surrender his non-prac-tising allowance and permitted to practice in his field of speciality as a heart specialist. He requested further in his said appeal that he be allowed to hold the charge of Associate Physician/Civil Surgeon in addition to that of the Medical Superintendent. There is no evidence that his request was acceded to in so far as private practice was concerned.
3. The appellant took over as Medical Superintendent Polyclinic Islamabad on 12th June, 1975 and shortly thereafter, on 4th July, 1975 requested, the A.G.P.R. For a special audit due to suspected irregularities in accounts. The Ministry, on the other hand, deputed two of their own officials to conduct the required audit by way of a surprise raid. This was done in early February, 1976. As a consequence, the accountant and the cashier were suspended for irregularities. The appellant, too, was suspended on 19th February, 1976 (but reinstated vide Notification, dated 5th May, 1976). He was charge sheeted on 25th March, 1976 for :
(i) certain irregularities/lapses in the maintenance of accounts.
(ii) taking unauthorised advances from cash for his personal use by signing temporary receipts which had been recovered ; and
(iii) threatening the cashier with dire consequences whenever he demanded refund of the money.
4. As a result of an enquiry, Ministry of Health gazette, dated 4th April, 1978 was issued whereby the appellant stood compulsorily retired on charge of misconduct. In addition, the President, as the competent authority, was also pleased to order "that the amount of Rs, 6,167.25 drawn unlawfully by him from the Government funds shall be recovered from the pension or gratuity due to him".
5. The appellant's review petition, dated 30th June, 1978 having been rejected on 19th July, 1979 he preferred his appeal before the Federal Service Tribunal against the impugned order of his compulsory retirement on 18th August, 1979.
6. The case was heard on 11th January, 1981 and the judgment announced on 14th January, 1981. The Division Bench of the Federal Service Tribunal ordered the re-instatement of the appellant, Dr. Rab Nawaz Khan, with consequential benefits. In addition, the Tribunal ordered the refund of private practice fees amounting to Rs, 6,000 which had been recovered from him.
7. The Government went in appeal against the order of the Federal Service Tribunal and was allowed special leave to appeal by the learned Supreme Court in Civil Appeal No, 147 of 1981. This appeal was heard on 10th October, 1982. The learned Supreme Court came to the conclusion that the precise question being raised before them had not been adverted to by the Service Tribunal and that on the basis of the material before them, whether the appellant Dr. Rab Nawaz Khan, was entitled to share of fees of services rendered by him other than medical attendance to the patients admitted to the Polyclinic, during the period of stay at the said Polyclinic and "whether his share of fees, if he was so entitled was in excess of the amount received by him from the cashier". As a result, the learned Supreme Court, vide their judgment, dated 10th October, 1982 set aside the order of the Service Tribunal, dated 14th January, 1981 and remanded the case to the Tribunal for reconsideration and fresh decision.
8. The case, on remand, was received by the Service Tribunal on 29th November, 1982 vide Supreme Court of Pakistan No, C. A. 147/81- S.C.J., dated 29th November, 1982. It was heard on 4th May, 1983 and is being disposed of by this order.
9. We heard the learned counsel from both sides at length as well as perused the relevant record.
The Enquiry Officer has held the appellant "Not Guilty" of charges (i) and (iii).
10. Charge (ii) accuses the appellant of having taken unauthorised advances of various amounts, from time to time, for which he signed chits. The Enquiry Officer has established that the appellant is responsible for fifteen Chits against which he drew an amount of Rs, 6,167.25. The appellant, at the bar, admitted having drawn the said amount but he also claimed that his share of the private practice came to much more (nearly -Rs, 9,000) and that he had, actually, drawn much less.
11. To begin with, the most important issue before us is whether the appellant was, at all, entitled to private practice before he could claim his share of the amount accruing to him as such. The admitted position before us at the bar, is that the appellant while appointed as acting Medical Superintendent Polyclinic, was drawing non-practising allowance of Rs, 400 p. m. While, in his capacity as Associate Physician/Civil Surgeon, he was also doing private practice. The post of Medical Superintendent is non-practising post whereas that of the Associate Physician/ Civil Surgeon is a practising post. The appellant was obviously having the best of both the worlds. As an educated and responsible person, he ought to have realised that if he was drawing non-practising allowance then he could, under no stretch of imagination, also indulge in private practice. In his situation, all that he had to do was to obtain permission of the Ministry to do private practice in his capacity as the Associate Physician/Civil Surgeon and as soon as such a permission was received, then to stop drawing non-practising allowance as Medical Superintendent. Alternatively, if he felt very strongly about private practice, then the least he could have done was to stop drawing non- practising allowance before resorting to private practice.
12. The appellant is a Cardiologist. To one of our questions he stated, at the bar, that the four disciplines from which he was realising private fees from the non-entitled patients related to E.C.G.
X-ray, Pathology and Physiotherapy. In other words, the appellant was realising fees from three departments which had nothing to do with his field of speciality viz. Cardiology. To elaborate further the appellant stated, at the bar, that quite often there were no cardiologist, pathologist and the physiotherapist. As such, he took over those departments and charged fees from the non- entitled patients and this he considered to be in order because this was the practice in the Polyclinic and that he had done nothing wrong. He also stated, at the bar, that the Medical Superintendents, in the Polyclinic, had always drawn the non-practising allowance as well as carried on private practice and he cited the names of various medical officers. All we would like to mention in this regard is, that if the past Medical Superintendents were drawing non-practising allowance and were also practising, either by holding a practising post and/or by virtue of taking over vacant departments, and that, too,. Without permission from the Ministry, then it is a very serious matter and we shall, under no circumstances, condone it whether or not this was a common practice. We would expect the Ministry to proceed against all medical officers who have been guilty of such gross misconduct in the manner stated before us.
13. We would also like to advert to the Fee Rules to analyse their import, if any. We have been shown Ministry of Health letter No, F. 25-4/64-Per, dated 26th March, 1964 which inter alia, lays down that Government Medical Officers employed in "practising" posts in Central Government Institutions "shall draw share of fees for professional attendance or services other than professional attendance as laid down in the Medical Officers Fee Rules, 1941 until further orders." Rules 3 and 4 of the Fee Rules. 1941 are reproduced :
3. (1) Fees for professional attendance shall be charged from private persons admitted to the paying wards of a hospital at such rates as may from time to time be fixed by the authorities of the hospital with the prior approval of the Central Government.
(2) The fees so. Charged for medical attendance shall be credited to the Central Government in full and the fees charged for surgical operations shall be shared in the proportion of 3 to 2 between the Central Government and the medical officer rendering the service.
' Provided that in hospitals where fees for medical attendance were on the 28th June, 1939 shared between the medical officers concerned and the Central Government, or where the proportion of the fees for surgical operations received by the medical officer was on that date higher than 40 per cent., the medical officers employed in those hospitals on or before that date shall continue to receive a share of the fees according to the practice existing before that date.
4. (1) Medical Officers may, with the previous sanction general or special, of the Director-General, Indian Medical Service, render to the public, the Defence Department and any commercial department or undertaking of the Government of India any of the services specified in the Schedule to these Rules and charge therefor fees at the rates specified therein : Provided that a medical officer may, subject to such general or Special Orders as the Central Government may issue in this behalf, reduce the rates if in any special case, either because of the pecuniary circumstances of the person to whom the service is rendered or for some other reason of public interest, he considers it necessary so to do.
(2) The fees so charged shall be shared in the proportion of 3. To 2 between the Central Government and the medical officer rendering the service or where the service is rendered in a laboratory the head of the laboratory, who may divide his share with his assistants in such manner as he considers equitable : Provided that the fees received for service as an examiner for a University or other examining body or as a lecturer may be retained in full by the medical officer rendering the service : ' Provided further that in laboratories where the fees so charged were immediately before the 12th July, 1940 taken in full, or shared with the Central Government in a different proportion, by the head of the laboratory the fees may continue to be so taken or shared by the medical officer who was the head of the laboratory on that date : ' Provided further that no portion of the fees realised from the Defence Department or any Commercial Department or undertaking of the Government of India shall be paid to the staff who were not entitled to receive it under orders in force immediately before the promulgation of these rules.
(3) Nothing in this rule shall be deemed to prohibit medical officers from rendering to the public services other than professional attendance, not being services specified in the Schedule to these Rules and charging fees at the rates laid down by the Central Government, provided that not less than 60 per cent of the fees so charged shall be credited to Government :
(a) Provided that the Central Government may at any time prohibit any specified Medical Officer or Officers from rendering to the public any specified service or services other than professional attendance.
14. The perusal of the above rules leaves us in no doubt that it is the rule 4 which is relevant for our purpose. The appellant had to obtain a previous sanction for the Ministry of Health for doing private practice as Associate Physician/Civil Surgeon, a practising post, he claims to be actually holding together with his acting appointment as the Medical Superintendent, a non-practising post. This would have been in consonance with rule 4 (1). The sharing of fee in the ratio of 60 : 40% between the Central Government and the appellant respectively, would be relevant only after the appellant had been allowed to do private practice. To our questioning the Departmental representative submitted, at the bar, that the appellant had not been allowed private practice by any general or special order. However, the said Departmental representative on further questions from us did admit that the post of Associate Physician/Civil Surgeon was a practising post. If the post of Associate Physician/Civil Surgeon was a practising post, which it admittedly was, then it would be quite unnecessary for the appellant to obtain any general or special permission from the Ministry of Health for such a permission would be inherent in the declaration by which a post has been listed as practising or non-practising. We have therefore, no doubt that the appellant bad a right to private practice in his capacity as the Associate Physician/Civil Surgeon. We shall, however, bold that the appellant bad no right without permission from the Ministry of Health to take over vacant departments like X-ray, Pathology and Physiotherapy for which all the work would, ordinarily, be done by the technical assistants. The ethics, whether they existed in writing or not, demanded that 40% of such fees was distributed among the technicians and the rest 60% deposited with the Government or if the appellant had rendered service in these fields. Himself then and only then some share from 40% could be charged while distributing the rest to the Technicians. We are sure, as a result of our questions to the appellant that he may have at best, carried out some work in the field of radiology but nothing in Pathology or Physiotherapy. The fees realised by the appellant in these, departments have, therefore been illegal because these have been realised without permission. We hold the appellant guilty of misconduct. We would in this connection like to quote from P. 561 of "Employees Misconduct" by Alfred Avins wherein it is said : "Where the temptation is succumbed to and the employee abuses his employment discretion to advance his own interest, the misconduct is aggravated."
' Before giving our conclusions, we would like to reproduce a relevant portion from Reading v.
Attorney-General p. 566 of "Employees Misconduct" which has been contributed by Lord Denning and reads : In my judgment, it is a principle of law that, if a servant takes advantage of his service and violates his duty of honesty and good faith to make a profit for himself, in the sense that the assets of which he has control, the facilities which he enjoys, or the position which he occupies, are the real cause of his obtaining the money as distinct from merely affording the opportunity for getting it, that is to say, if they play the predominant part in his obtaining the money, then he is accountable for it to his master. It matters not that the master has not lost any profit nor suffered any damage, nor does it matter that the master could not have done the act himself. If the servant has unjustly enriched himself by virtue of his service without his master's sanction, the law says that he ought not to be allowed to keep the money, but it shall be taken from him and given to his master, because he got it solely by reason of the position which he occupied as a servant of his master."
15. In the appeal before us, the appellant continued drawing non-practising allowance in his capacity as the acting Medical Superintendent while at the same time and without surrendering his non-practising allowance, he continued doing private practice as the Associate Physician/ Civil Surgeon. Not only that. The appellant also took over occasional charge of vacant departments of Radiology, Pathology and Physiotherapy without permission from the Ministry of Health and realised private fees from the non-entitled patients for the services rendered in the said three fields. The fulcrum upon which the appellant rested his defence is that be had been following the practice of the other Medical Superintendents and if no action had been taken against them then why has he been singled out and since he has been victimised it would indicate that action against him is nothing but mala fide. We are, in no way, impressed by this line of arguments which we would describe as pedantic. If corrupt practices bad been going on in the Polyclinic (or are going on even now) we have no reason to condone them just because they were the order of the day for, by so doing, we shall be legalising corruption, the curse of our society. Arguments like this may befit the intellectual have-nots but, certainly, not the educated elite, the category to which the appellant belongs.
17. We have no doubt that the appellant is guilty of misconduct. We have, therefore, no cause in interfering in this case. We uphold the punishment awarded by the competent authority and dismiss this ap peal with costs fixed at Rs, 100.
' A.O. RAZIUR RAHMAN (MEMBER).- I am inclined to take a different view from that expressed by my learned colleague in his judgment.
2. The finding of the Enquiry Officer is that the appellant was guilty of the charge contained in item
(ii) of the charge-sheet, which reads as follows :- "You (Dr. Rab Nawaz Khan) are alleged to have taken unauthorised advances of various amounts at different times from the cash for your personal use and some temporary receipts signed by you in this connection were recovered."
3. The defence put forward by the appellant, both in his reply to the charge-sheet and the enquiry proceedings, as well as in the memorandum of appeal and the arguments before us, is that these were not unauthorised advances but drawals of money payable to him on account of laboratory charges and pathological test fees, part of which was payable to him, when, as Medical Superintendent, he held charge also of the relevant departments. His stand was that these fees were payable to him to the extent of 40% of the amount realised from non-entitled patients and that the amounts payable to him were to be calculated and paid to him. Since the Cashier, according to him, was keeping his accounts also, he was drawing advances against his cash lying with the Cashier and drawal of these amounts from the Cashier, on chits issued by him or his P.A.
Did not amount to unauthorised advances from the public funds and, therefore, not an offence punishable under the Government Servants (Efficiency and Discipline) Rules.
4. The Enquiry Officer held that : (a) the officer was not entitled to any share in the fees realised from non-entitled persons and (b) that he did not follow the prescribed procedure for obtaining his share, if any.
5. So far as the entitlement of the appellant to a share in the fees is concerned the Enquiry Officer has opined as follows :-
(b) "To have been entitled to any share of Fees and Ward Charges it was essential that :
(i) He should have had knowledge of such job which it is presumed that he had ;
(ii) An order for appointment of those jobs should have been published by the Polyclinic after approval of the authorities which is not borne out by records of the Polyclinic.
(iii) He should have actually performed that job and given opinion which too is not borne out by records of the Polyclinic."
6. From the above, it is seen that the Enquiry Officer has conceded that the appellant had knowledge of the job for which he was claiming share in the fees. Being a medical officer of long standing, who was also a heart specialist, he was rightly presumed to have had knowledge of the job for which he was claiming fees. On this point, the finding of the Enquiry Officer seems to be correct. However, in regard to two other points, is not quite easy to accept the views expressed by him. The basis for his finding, that an order should have been published by the Polyclinic, after approval by the competent authorities, allocating the charge of the relevant departments to the M.
S., in order to enable him to claim his share in the fees, has not been indicated. Since it had been the practice in the Polyclinic for the M. S. To assume charge of those departments which did not have regular heads at a particular time, and neither the Directorate-General of Health nor the Government bad, at any time, objected to these arrangements, it must be presumed that neither in the opinion of the Directorate-General nor in that of the Government there was anything irregular or illegal in this. A practice which had been in existence since the inception of the Polyclinic, without any objection, either from the Directorate or the Government, would be presumed to have had their approval. As for the point that the particular job done, or opinion given by the officer, should have been on record, since there are no rules laid down as to the manner in which record of these has to be maintained, the possibility cannot be ruled out that the Medical Superintendents who held charge of the departments, in the absence of the permanent incumbents, gave their advice or opinion verbally and no written report of the same was required to be maintained. If it was an essential requirement, it should have been prescribed by Audit in which case the absence of such a record, in the case of the appellant, would have been conclusive proof that the job for which he was claiming share in the fees had not been actually performed by him and, therefore be was not entitled to any payment on that account. As for the rules on the subject, under rule 4(1) of the Medical Officers Fees Rules, 1941, Medical Officer may, with the previous sanction, general or special, of the Director-General, render to the public, the Defence Department, or any commercial department or undertaking of the Government any of the services specified in the Schedule. In the Schedule, the bacteriological work done at Government laboratories attached to hospitals is specified at serial 8, as one of the services. Under rule 4(2), the fees to be charged are to be shared in the proportion of 3 to 2 between the Central Government and the head of the laboratory. Under the Health Division Memo No, F. 25-4/64-Per, dated 26th March, 1964 read with Memorandum No, F.
26-1/62-MER, dated 4th June, 1963 the rate of charges as laid down for the Jinnah Central Hospital, Karachi, are to be observed in the Polyclinic. These rules and orders, read together, leave no scope for doubt that Medical Superintendents working as heads of the laboratories, were entitled to payment of shares in the laboratory fees. The only ground for objection to this was the drawing of the non-practising post allowance.
7. The appellant took the plea that some of his predecessors also, namely, M/s. Sarfraz Ahmad and Shaukat Malik, received their shares of practising fees, while bolding charge of one practising and one non-practising post. Similarly, two others, namely, Sirajul Haque and Shamsul Arfeen, drew their shares of fees from non-entitled patients, while holding regular charge of the non-practising post of Medical Superintendent. These precedents, by themselves, do not justify the drawal of non- practising Allowance, while charging shares in the fees, and it has to be held that an officer cannot draw Non-Practising Allowance while also holding a practising post and charging share in the professional fees and laboratory and other charges.
8. In this Connection, our attention was drawn by the learned counsel for the appellant to the fact that, when the appellant was re-posted to the Central Government Polyclinic as Medical Superintendent, by order, dated 6th June, 1975 issued after the intervention of the Minister for Health, to whom he had applied in this behalf, he was not satisfied with this posting, because it was a non-practising post, and it did not provide him adequate scope for improving his professional competence in the field of his speciality, namely, heart disease, in which he had obtained his post- graduate qualification. He, therefore, applied, on 8th June, 1975 to the Minister for Health, requesting that he may be allowed to surrender his Non-Practising Post Allowance as Medical Superintendent and be exempted by name from being non-practising. At the same time, he requested that he may be allowed to continue to hold charge of the post of Associate Physician/Civil Surgeon. In response to this, a revised posting order was issued, on 29th November, 1975 in which his substantive post was shown as Associate Physician/Civil Surgeon and the post of Medical Superintendent was just shown as an additional charge. In this way, the appellant was allowed to do private practice, although no specific orders were issued exempting him from being non- practising. In the face of this, it would not be fair to hold that the appellant was not allowed to do private practice, so long as he was holding the post of Medical Superintendent. However, it could be held that since he was now primarily holding a practising post, he could not continue to draw the non-practising post allowance for the additional post of Medical Superintendent also held by him. It appears that, while the revised posting order was issued, on 29th November, 1975 the appellant was placed under suspension with effect from 26th February, 1976. In other words, he had put in only 3 months of service after issuance of the revised order, prior to that, he had held the post of Medical Superintendent exclusively, for a period of about 5 months. Since the officer had already applied for permission to surrender his Non-Practising Allowance,' it is clear that he had no intention of drawing the Non-Practising Allowance as Medical Superintendent, while doing private practice also. Obviously, when the revised posting order was issued in February, 1975 he should have surrandered the Non-Practising Allowance, with effect from the date of the said order. It, however, appears that, during most of this period, he was under great deal of tension on account of the agitation following the arrest of a number of Store-Keepers and Dispensers by the F. I. A., on the order of the Minister and, later, on account of the action taken against him by the Ministry of Health. For this reason, the failure of the appellant to surrender his Non-Practising Allowance as Medical Superintendent for a period of about 3 months could be viewed with less severity than otherwise. As for the earlier period, during which the appellant held the charge of Medical Superintendent only for something like 5 months, no question of refund could arise. The departmental case against him, however, is that during this period he had no right to carry on private practice. The appellant's stand is that the realisation of his share in the laboratory charges and pathological test fees, being permissible, having been allowed in the past, it was not affected by the drawal of the Non-Practising Allowance as Medical Superintendent. This view is not correct and has to be rejected. But, it is quite an arguable point and, on account of the admitted doubt about it, the benefit of -doubt must go to the appellant. He seems to have drawn the Non- Practising Allowance, when he was exclusively holding the post of Medical Superintendent, under a genuine belief that this was permissible and, having been allowed by the Government in the post, was not illegal or ultra vires of the rules. In view of this, the prior course for the Government, if they wanted the appellant to discontinue the practice followed by some of his predecessors, would have been direct him not to do so and to issue instructions in this behalf of the Accountant- General to disallow such payments.
9. As regards the carrying on of private practice, while holding a non-practising post, alongwith the practising one, and drawing non-practising allowance on account of the non-practising post, the precedents quoted by the appellant would appear to make out a case in his favour. But, this proposition too does not appear to me to be acceptable, because of its basic illogicality. However, due to the non-interference of the Government with this practice, an arguable case could be made out also in favour of private practice being carried on while simultaneously holding a practising and a non-practising post and drawing non-practising allowance for the latter.
10. In view of the above, whether we consider the appellant's case as one of drawing the non- practising allowance, while holding a practising post also, and doing private practice or of drawing share in the laboratory fees and pathological test charges, while holding the non-practising post of Medical Superintendent, the matter having not remained free from doubt, it has to be conceded that mitigating circumstances do exist to reduce the magnitude of the irregularity said to have been committed by the appellant.
11. Indeed, it is a sad commentary on the administrative integrity and uprightness of the Ministry of Health that, while they felt no compunction in pulling up the appellant for his alleged impertinance in writing to the A. G. P. R. For help in putting the financial administration of the Polyclinic on satisfactory lines and, at the same time, cooly closed their eyes to the numerous irregularities pointed out by him, they acted with unprecedented enthusiasm in planning and executing action to incommode the officer. They did this not long after drastic action had been taken by the Minister for Health against a number of Dispensers and Store-Keepers lends strength to the appellant's allegations that he was victimised by the top official of the Ministry for being instrumental in arranging action by the Minister which was not to the liking of these officials.
12. It is another sad thing that, although the appellant himself had sought the guidance of the A. G.
P. R. In the matter of maintenance of accounts and drawal and disbursement of funds, no assistance was rendered to him in these behalf. Had the necessary help been forthcoming, and yet no steps taken by the appellant to bring about improvement in the financial administration, there might have been justification for action against him. But, it seems that the Ministry was interested neither in the proper guidelines being provided to the appellant nor in improving the state of affairs in the Polyclinic but in finding an excuse for his ouster from the Institution, where he appears to have been posted against the wishes of the Secretariat.
13. That the suspicion regarding the keenness of the Secretariate is not based on pure conjecture is borne out by the fact that, out of as many as 8 charges listed against the appellant, only one was found by the Enquiry Officer to have been proved. Even from the bare reading of the charges, it is apparent that they were listed recklessly, with a view to maligning the officer, when many were patently false or preferable against some others, including the Deputy Medical Superintendent (who was not even questioned about them).
14. When we consider the above in the light of other facts and circumstances, it would appear that there were special reasons for the action taken against the appellant, which fact casts doubts on the bona fide of the said action. In August, 1975, the then Minister for Health carried out a surprise said on the Polyclinic and, after on-the-spot inspection, handed over to the F. I. A. About a dozen Store-Keepers and Dispensers, who were found by him to be indulging, prima facie, in racketeering in medicines. This was exploited, by his subordinate staff to build up a campaign against the appellant and, in January, 1976, there was a strike of the paramedical staff to protest against the arrest of Store- Keepers and Dispensers by the F. I. A. What steps the Health Directorate took to help the Appellant to curb the undesirable activities of the staff is not clear. But the Minister for Health who, it appears, was backing the appellant in his efforts at improving the working of the Polyclinic, took certain drastic measures. He ordered the transfer of Dr. Sarfraz Ahmad, from the Polyclinic to the Central Government Hospital, and of Dr. B.A. Qureshi, from the post of Director, Health Establishments to the Health Division. This was somewhere towards the end of January, 1976. Soon after, that is, in the first week of February, the Minister was changed and, about the same time, a surprise check of the Accounts Section of the Medical Superintendent was carried out and action initiated against the appellant. It appears that the cases against all the Store Keepers and Dispensers were subsequently withdrawn from the F. I.A. Even the main accused, the Store-Keeper, was promoted to a Grade-16 post as Physiotherapist, for which, according to the appellant, he had no qualification.
All these circumstances indicate that the action taken, by order of the Health Secretary, against the appellant was not entirely unconnected with the action taken by the Minister against the Dispensers and Store-Keepers, in support of the efforts of the appellant to improve the working of the Polyclinic, and the orders passed by the Minister for the transfer of some officers of the Polyclinic and the Directorate-General of Health. Not being a simple administrative action, without any motivation, other than the requirement of clean administration, it does cast reflection on the bona fides of those who took it.
15. Although the Enquiry Officer was candid enough to have observed that the Accountant and the Cashier were basically responsible for the irregularities listed at items (a) .To (f) of the charges relating to the record of the cash and accounts of the Polyclinic, he does not appear to have considered carefully the points made out in the written defence spread over as many as 9 typed pages of the reply to the charge-sheet and something like 17 pages of the defence statement submitted before him by the appellant during the hearing, after the examination and cross- examination of the prosecution witnesses and the Court witnesses. The points relating to the hostility of the higher officers of the Ministry and the non-co-operation of his subordinates, including no less a person than the Deputy Medical Superintendent himself, as well as that of the Directorate of Central Health Establishments, are all substantial enough to indicate the existence of a strong and active lobby against the appellant, and, in fact, the categorical allegations of malice and mala fide made by the appellant. with supporting facts and figures, remained completely unrebutted, both by the witnesses and the Enquiry Officers. It would, therefore, not be wrong to hold that the report of the Enquiry Officer is faulty and unsatisfactory and does not give a correct picture of the pros and cons of the charges preferred against the appellant.
16. According to the figures supplied by the appellant, he bad effected savings of nearly 27 lakhs of Rupees on 5 major items of expenditure during the 7 months that he held charge as Medical Superintendent and would, as claimed by him, have actually reduced the expenditure on these Heads for the entire years by about half a crore of rupees from the previous year's expenditure. On 4 of these items, the reduction of expenditure was from Rs, 6 lac to Rs, 2 lac per month, that is, by as much as 66%. It appears that the authorities of the Ministry of Health were indifferent to this aspect of the matter and the Enquiry Officer also did not take notice of it in assessing how far the charges levelled against the appellant were bona fide or motivated by considerations other than an impartial assessm ent of his performance as the managing head of the Institution in his charge.
17. From the documents produced before us, it appears that, although, on 3rd September, 1977, the appellant stated, in reply to a Court question, that he would like to put up defence witnesses, on 13th September, 1977, there is a noting by the Presiding Officer that "the accused officer decided not to put up any defence witnesses." Against this, there is a categorical allegation made in the memorandum of appeal that "the appellant was not allowed to produce witnesses in his defence due to the pressure exerted by Mr. Ansari on the Enquiry Officer". We did not go into the question whether any pressure was exerted by Mr. Ansari. But, I have looked up the record to check up whether or not the appellant was allowed to produce witnesses and, I am satisfied, as will be explained later, that the allegation is hundred per cent correct. It is, therefore, not only amazing but also sad/and deplorable that, in its written objections the Respondent Department should have unabashedly asserted that the "allegation is incorrect as already denied" and that "these allegations are incorrect on the face of the facts that, according to the Rules, all facilities and considerable times were given to the appellant to meet the substantial justice and chance to defend the case to his satisfaction." The cavalier fashion in which these statements have been made shows that either the Department cares little for the veracity of the statements it makes before a Court of law or it is so blinded by its hostility towards such employees of its as are in disfavour that it would not mind stooping so law as to make deliberately false statements for vindicating its actions. I have used deliberately strong language, because I feel that no words are strong enough to deplore the indefensible conduct of the Department. What justice and fairplay can an employee of a department expect when it acts in the manner described above? The matter is much too painful for words and one can only hope that it will attract the attention of the concerned authorities to prevent its recurrence in future.
18. Before I proceed to explain the grounds on which the above conclusions have been reached, I deem it necessary also to record the fact that the Respondent Department was required to produce evidence of the accused officer's decision not to put up any defence witnesses and to indicate the date of the same. In reply, the Department produced the photostat copy of the diary of the enquiry proceedings. I have no hesitation in saying that this is a worthless and unreliable document. Except form the proceedings of the first day (3rd September, 1977), part of which has been signed by the appellant, all other notings and orders on subsequent days are without signatures and authentication by the Presiding Officer, except at the end of the diary. When the Enquiry Officer has signed without appending any date to his signature.
19. It is observed that, on 9th October, 1977, the appellant addressed a letter to the Enquiry Officer, in which he stated, "In consequence of proceedings of the Court, on 4th and 5th October, I strongly desire that following may be called as witness. They may be summoned as my defence witnesses".
Thereafter, he furnished a list of 7 persons and added, "I shall be grateful for your this act, as it will help in affording me justice in this case." In reply to this communication, the Enquiry Officer wrote to the appellant : "A copy of our letter No, 3/8/76-I, dated 10th October, 1977 already sent to you through the Health Division is enclosed. The officer requested to appear as Court witness will give the official views of the Health Division and I feel that calling of another seven defence witnesses would not be necessary."
The letter, dated 10th October, referred to in this communication, was also addressed to the appellant and read as under : "Health Division have been requested to detail an officer to appear as a Court witness and present the official view regarding Ipso facto appointment of the Medical Superintendent to vacancies like Pathologist, Physiotherapists and Radiologists and share of fees for these appointments, in Central Health Establishment, at 0900 hours on 31st October, 1977 at 400 Ruby House, F. 6/3, Islamabad, You are required to attend the same."
' From the above, it is clear that the enquiry proceedings did continue on 4th and 5th October, but no record of these proceedings has been kept on the file, nor any indication of the proceedings having been held given in the diary of the proceedings. It is also obvious that, in spite of the fact that the requirements of law made it obligatory on the Enquiry Officer to summon the defence witnesses cited by the accused officer, the Enquiry Officer, in his wisdom, refused point blank to summon the defence witnesses, as many as 7 in number, on the absurd plea that an officer, whose name has not been mentioned, had been requested to appear as Court Witness and, therefore, he felt that calling of any defence witness was not necessary. This order of the Enquiry Officer is clearly indicative of the fact that he was either oblivious to the requirements of justice or had completely sold himself to the Prosecution, since he felt that, after the departmental witness, who was to present the official view, had been examined, the evidence of any defence witness was irrelevant and redundant. It should have been clear to the Enquiry Officer, as it ought to be to any person of ordinary understanding that the "officer requested to appear as Court-witness" was, in the Enquiry Officer's own words, "to give the official views of the Health Division." The official views of the Health Division could not but be the views of an interested party and not impartial and independent views.
He could, at the best, represent the Health Division, who were a party opposed to the appellant. '
Therefore, he was rather ill-qualified to be a Court Witness-even not to speak of being good enough as a substitute for a Defence Witness. It must, therefore, be held that the refusal of the Enquiry Officer to summon any Defence Witness was a grave irregularity which could not but be treated as amounting to deliberate denial of justice.
21. It is also seen from the record that the Enquiry Officer obtained "departmental clarification" from the Representative of the Health Division, the Director, Central Health Establishments, the Representative of the A. G. P. R. And the Representative of the Central Government Polyclinic, from I 1 th to 17th December, 1977. This was done in the absence of the accused officer, but without the recording of the statement of these persons. It is difficult to find any justification for this extraordinary action of the Enquiry Officer. Clarification of vital matters germane to the points at issue in the enquiry was required to be obtained from various departments through their Representatives and, on 30th October, 1977, after the technical Representative of the Secretary Health Division had explained certain points, the enquiry was adjourned for 20th November, 1977.
But, subsequently, when it was discovered that 20th November, 1977 was a holiday, the date was shifted to 26th November, 1977. Before this date, the accused officer was reported to have fallen sick and, therefore, the enquiry was adjourned, once again,. To 11th December.
1977. The accused officer was notified about the date and required to attend by a notice sent to him on 4th December, 1977. According to the accused officer, this notice was received by him on 12th December, 1977, in reply to which, on 14th December, 1977, he reported that he was still sick and, therefore, the hearing may be postponed by 3 to 4 weeks, as already requested earlier. In fact, on 30th November, he had already requested for postponement of hearing by 5 to 6 weeks and, on 11th December, 1977, sent a telegram reporting unability to take travel exertion. In spite of all this the Enquiry Officer decided to hold the sitting on 11th December, 1977 and, on that date, he obtained the departmental clarification from the concerned officers in the absence of the accused officer and without recording any statement. The Enquiry Officer's findings, based on clarifications and explanations given by the officers, whom he examined in the absence of the accused officer, cannot be treated as legally valid findings, because these were based on facts, views, opinions, clarifications and interpretations collected by the Enquiry Officer behind the back of the accused officer and without affording him an opportunity of challenging, contesting or refuting these.
22. In view of the above, I cannot but hold that the appellant was greatly prejudiced in his defence and the enquiry was vitiated by the irregularities committed by the Enquiry Officer, who was palpably partial towards the prosecution and biased against the accused officer. Obviously, the punishment of the officer on the basis of such an enquiry cannot be justified or sustained.
23. To sum up, while it may be true that the appellant's action, in not foregoing his Non-Practising.
Allowance as Medical Superintendent, after he had been appointed to the practising post of Associate Physician, shows a lapse on his part, there were indications that circumstances, at that time, were such as to provide mitigating factors to reduce the gravity of the offence. As for his drawal of advances against his entitlement to share of laboratory charges and pathological testing fees in view of the previous practice in the Polyclinic, as well as the acquiescing in by the Government in the practice, besides the fact that the position of the rules relating to the procedure for the drawal of these shares were far from clear and the appellant's understanding of these rules had the support of the A. G. P. R, it is clear that, if at all the appellant committed any irregularity, he did so without any mens rea. In addition, there are also indications that the appellant was singled out for punishment, for an offence which had been committed by others on such larger scale and the fact that, although, during the hearing of the appeal, it was stated, on behalf of the department, that the other officers would also be proceeded against, no such action has yet been taken against them, clearly casts doubt on the bona fide of the action taken against the appellant. An action which is not bona fide in characte cannot be said to be in the public interest and would not qualify for bein upheld. Moreover, the appellant was keen on improving the financial administration of the Polyclinic and, in this connection, he sought help from his subordinates, the A. G. P. R, the Directorate-General of Health, as well as the Ministry, but did not receive any co-operation from any of these quarters. There are also indications that affairs were deliberately mismanaged in order to give a bad name to the appellant. The only, and logical, conclusion that can be drawn from all this accumulation of facts, circumstances and factors is that the appellant, far from being the devil of the show, was a victim of circumstances and, possibly also of conspiracy, and deserved a better deal than that accorded to him all the time.
' If at all the authorities of the Ministry of Health and the Directorate General were sincerely desirous of imposing proper financial discipline in the management of the Central Government Polyclinic at Islamabad, they should have provided the appellant, the then Medical Superintendent, with the guidelines he had asked for. They should also have, if they were satified that drawal of advances, against entitlements to share in fees and charges, was improper and irregular, so advised the M. S. And asked him to discontinue the practice. Similarly, he could have been directed to refund the amounts drawn by him as Non-Practising Allowance, while holding a practising post, in addition to a non-practising one. But, considering the fact that no cheating or misrepresentation was indulged in by the appellant in the drawal of the allowance, to which he was not entitled, the action of suspension, followed by departmental proceedings, and subsequent punishment by compulsory retirement from service, was an, extreme step not commensurate with the nature of the allegations or quite appropriate to the circumstances of the case. Moreover, from the attendant circumstance that a large number of charges, most of which were baseless, uncalled for and vexatious, had been preferred, the impression cannot be avoided that those concerned were less interested' in improving the working of the Polyclinic than in blasting the career of the appellant.
' In the result, I would not support my learned colleague's verdict that the appellant is guilty of such serious misconduct as to merit the punishment of compulsory retirement from service. I would content with the issuance of a warning to the appellant to exercise greater care and circumspection in the matter of drawal of his emoluments. Subject to this, I would accept the appeal and order the re-instatement of the officer, with effect from the date of his retirement, treating the intervening period as one spent on duty, subject to the condition that his entitlement to arrears of pay and other emoluments will be reduced by the amount of income derived by him from private practice or any other gainful occupation during the said period.
' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-This appeal has come up before me under section 3- A(2)(b) of the Service Tribunals Act (LXX of 1973), on difference of opinion between Brig. Abdur Rashid and Mr. A.
0. Raziur Rahman, Members of this Tribunal.
2. The facts of this case are given in detail in the orders of my learned brothers, and I need not reiterate them. The appellant was charged on three counts. The departmental authority found him guilty of charge (ii) only, which reads as follows:- "(ii) taking unauthorised advances from cash for his personal use by signing temporary receipts which had been recovered."
' Brig. Abdur Rashid has found that the charge has been established and he has upheld the penalty of compulsory retirement from service. Mr. A.O. Raziur Rahman has, however, come to a different conclusion and for the innocent irregularity committed by the appellant he thought that mere warning was sufficient. I would agree with Mr. Raziur Rahman that this is not a case in which major or minor penalty should be awarded. Mere warning would serve the purpose for altering the appellant and making him more vigilent. It is cordinal principle of jurisprudence that the intent and act both must concur to constituting a crime whether it is of a criminal or of a civil nature. Mens rea is an essential ingredient for the establishment of a criminal act. In the present case that element is completely wanting. The appellant had received the sum of Rs, 6,167 as his hospital share in good faith because there was a long practice established by his predecessors. It was argued that the amount could be received by the appellant only if there was any special or general order of the Ministry of Health. That may be so, but the appellant might be under the impression that there is some general order under which his predecessors bad been receiving the money. It is pertinent to note that the rules in this respect were notified in pre-partition period and the possibility cannot be excluded that the then Government of India issued any such general order. The appellant was drawing non-practising allowance for the period 12th June, 1975 to 29th November, 1975 and it is not denied by him that during this period he also received his share from different departments of the hospitals which amounted to Rs, 6,167. Besides that, the appellant received the non-practising allowance also for this period. No doubt, the appellant did so in good faith considering that he was entitled to so in view of the practice, nevertheless the non-practising allowance was not admissible to him when he was receiving his shares from different departments of the hospital of which he had taken the charge in the absence of the medical officers who had not been appointed then.
This may not be an offence, but the amount is overcharged by him and the A. G. Should have deducted the sum from his salary subsequently. While agreeing with Mr. A.
0. Raziur Rahman, I direct that the non-practising allowance received by the appellant for the period 12th June, 1975 to 29th November, 1975 be deducted from his salary in instalment when he takes over as a result of our order of reinstatement. My learned brother Mr. Raziur Rahman has referred to certain incidence, such as the request of the appellant to the local office of the A.G.P.R.
For the audit of the accounts and immediate subsequent order of the Ministry of Health taking upon themselves the audit of the appellant's hospital. It is not clear as to how the precedents which the appellant escaped the notice of the audit party. I would not suggest any action against other persons nor I agree to the observations made against the Ministry of Health for the reason that these persons are not before us and the Ministry of Health is not an entity by itself, but it is the officers of the Ministry who from time to time made the orders. They too are not before us and if I was to initiate the judgment, I would not have passed any strictures against them without giving them opportunity of being heard. ORDER OF THE COURT ' The order of Mr. A.
0. Raziur Rahman, Member, as modified by the Chairman, shall be the order of the Tribunal under section 3A(2)(a) of the Service Tribunals Act, 1973.