' ABDUR RASHID (MEMBER).-In order to comprehend the present appeal properly, it is essential to provide its background. The appellant, who was a confirmed time-keeper since 1963 was charged- sheeted by the Assistant Controller of Post Offices, Karachi. The charges were : First, that he was a habitual late comer. Second : that he submitted false medical bills to the tune of Rs, 2.092.80 out of which he was reimbursed Rs, 255.65 and third and last : that he was irresponsible and careless. As a result of the said charge-sheet which was served on him on 25th April, 1977, the appellant was removed from service vide order dated 7th July, 1977 which was given retrospective effect from 20th June, 1977. The P. M. G. Southern Circle, Karachi, while disposing of the departmental appeal of the appellant vide his letter dated 9th April, 1978, modified the order of removal to that of compulsory retirement w. e. f. 20th June, 1977. Thereafter the appellant filed his appeal (20 (K)/1978) which was accepted by the Tribunal on 23rd April, 1980 and their judgment communicated to all concerned vide letter 15th May, 1980. It would be pertinent to quote relevant excerpts therefrom :
9. The mix of the matter is that since the department chose to issue a memo. Of charges on 25th April-, 1977, no decision was taken by the Authorised Officer regarding the manner in which the appellant should have been proceeded against under the requirements of Government Servants (E & D) Rules, 1973, invoked after issuing the charge-sheet. No enquiry officer was appointed and no such enquiry was ever conducted. There is, therefore, no question of obstructing or hampering the proceedings of an enquiry and there was, therefore, no question of proceedings against the appellant and decide the case ex parte.
10. The order of removal from service passed by the Controller, Post Offices unilaterally on 7th July, 1977 without having recourse to the Disciplinary Rules, 1973 is illegal. The order of removal dated 7th July, 1977 removing the appellant from service retrospectively w. e. f. 20th June, 1977 cannot have a force of law and is inoperative. The order of removal/compulsory retirement of the appellant from service being illegal and inoperative is vacated. The appellant is reinstated in service w. e. f. 20th June, 1977."
"[Underlining its ours]
2. In compliance with the above order of the Tribunal, the appellant was taken on duty on 1st July, 1980. The appellant was suspended vide order, dated 2nd July, 1980 issued by the Assistant Engineer Mail Motor Service which read : "Mr. Hafiz Muhammad Jamil Time-keeper is placed under suspension from the forenoon of 2nd July, 1980 as his work and conduct is undergoing investigation. During the period of suspensions he will draw half the pay and allowances as admissible under the rules."
3. The appellant was served the following charge-sheet dated 29th July, 1980 signed by the Assistant Engineer Mail Motor : "Pakistan Post Office ' OFFICE OF THE CONTROLLER OF POST OFFICES, KARACHI.
Memo. No, PF/H-Muhammad Jamil Khan 80/81 Dated Karachi, the 29th July, 1980.
' Mr. Hafiz Muhammad Jamil Khan Time-keeper was required to attend duty from 6.00 a. m. To 14.00 hrs. But he attended office late and even absented on the following dates Date Time of attendanceRemarks 1-2-77 8.00 a.m.
3-2-77 9.00 -- 4-2-77 9.00 7-2-77 Absent 8-2-77 8.30 9-2-77 9.00 10-3-77 9.00 2-3-77 Absent 4-3-77 9.00 a.m.
5-3-77 Absent 8 3-77 Absent 9-3-77 9.50 10-3-77 9.50 12 3-77 Absent 14-3-77 9.00 15-3-77 9.00 4-5-77 to 1-5-77 Absent The absentee statement for May, 77 which includes the name of Mr. Hafiz Muhammad Jamil alongwith other staff reads as under.
1. Mr. Hafiz Muhammad Jamil Khan present 3rd May, 1977. Rest absent. The Time-keepers register which is maintained by the time-keeper does not bear his signature or writing from 4th May, 1977 to 31st May, 1977.
Mr. Hafiz Muhammad Jamil Khan time-keeper by manipulating the revised absentee statement drew full pay for the month of May, 1977.
Mr. Hafiz Muhammad Jamil Khan is, therefore, charged for 1. Misconduct. Mr. Hafiz Muhammad Jamil Khan is, therefore, called upon to submit his defence within 15 days from the receipt of this memo. As to why he may not be dismissed from service, failing which an ex parte decision will be taken. He should also give in writing if he wants to be heard in person or produce any witness.
(Sd.)
Assistant Engineer, Mail Motor Service, Karachi."
4. The enquiry officer, Mr. Mukhtar Akbar Assistant Superintendent Investigation submitted his report on 3rd November, 1980. The crux of the report is as under : "According to the allegation contained in the charge-sheet, the accused attended office late and even absented himself on different dates in February and March, 1977 and also from 4th May, 1977 to 31st May, 1977. In the absentee statement for May, 1977, the following remarks were made : "Mr. Hafiz Muhammad Jamil Khan present 3rd May, 1977, rest absent."
5. The Assistant Engineer Mail Motor Service, who is both the Authorised Officer and the Authority, on the basis of the report of the Enquiry Officer, held that the appellant who had been absent from 4th May, 1977 onwards had drawn his pay for the entire month of May, 1977 fraudulently and hence the charge of "misconduct against him stands proved to the hilt".
6. The Assistant Engineer (respondent No, 3) dismissed the appellant vide order dated 3rd January, 1981. The appellant preferred an appeal on 9th February, 1981 to the Controller of Post--Offices, Karachi (respondent No, 1) who modified the penalty of dismissal to that of compulsory retirement vide his order dated 28th September, 1981. Thereafter, the appellant came up in appeal before the Federal Service Tribunal under section 4 of the Service Tribunals, Act, 1973. The appeal was heard on 4th November, 1983 and is being disposed of by this order.
7. We heard the learned counsel from both sides. First of all we shall advert to the charge-sheet dated 29th July, 1980, reproduced above. It was totally uncalled for the Assistant Engineer to show the appellant as absent on 7th February, 1977, 2nd March, 1977, 5th March, 1977, 8th March, 1977 and 12th March, 1977 when by the admission of the respondent themselves, this absence had since long been regularized as casual leave. Hereafter, the only issue remaining is that of appellant's alleged absence from 4th May, 1977 to 31st May, 1977, which according to the Assistant Engineer "stands proved upto to the hilt." We have not seen any documentary evidence that this was so. The interpolation in the attendance register for May, 1977, imputed to the appellant could not be his work. In fact, we believe the contrary to be true, only to implicate the appellant. Viewed in the overall perspective of respondent No, 3's conduct, we exonerate the appellant of this charge. Also, during the oral hearing before us, the respondents simply failed to substantiate this charge.
Furthermore, it does not sound to reason that an employee who had never been so absent in his long service should, suddenly, absent himself. Even if we presume, for the sake of argument, that the appellant had remained absent and that he, by manipulating the register of attendance as alleged, marked himself present at the end of the month and drew his pay and allowance for. May, 1977, then there must be something very seriously wrong with the Mail Motor Service where the Assistant Engineer did not discover the absence of the appellant virtually for the whole month. We are also not impressed by the written statement of the Assistant Engineer, when he says that the previous charge-sheet was issued on 25th April, 1977 i. e. Prior to his alleged absence from 4th May, 1977 to 31st May, 1977 and hence this period of absence was not included therein. The fact that the previous charge-sheet was issued just ten days before the alleged absence of the appellant and was till then in elementary stages, a supplementary charge-sheet could have been issued immediately after the absence of the appellant w. e. f. 4th May, 1977 that is to say if he had been really absent which we do not believe to be the case. We are, therefore, left in.No doubt that there is truth in appellant's pleadings that he had reported about certain irregularities in the Mail Motor Service, which earned him the wrath of the Assistant Engineer. We are also prepared to believe the appellant when he says that the' respondents took umbrage to his previous reinstatement by the Tribunal and that they decided to "get rid of him and hence his suspension the next day after resuming duty. We are, thus clear in our mind that the respondents simply framed the appellant for absence which he had never been guilty of and this was done only to dispense with him by manipulating evidence to prove what they wanted to. This conclusion is supported by appellant's assertion that despite his objection, Mr. Mukhtar was appointed as the Enquiry Officer who was not well-disposed toward the appellant. If the department had any sense of justice and fairplay, they would have given the appellant a chance to defend himself by appointing someone else. The departmental action is, thus mala fide both in fact and in law.
8. The Controller of Post Offices or the P. M. G. South Circle, as the case may be, would do well to look into the working of the Mail Motor Service. If in the opinion of either of them, the appellant does not fit into the pattern they must discover the reasons therefor and if necessary appoint him elsewhere. In case the appellant is to be dealt with for any future misconduct then the rules framed for the purpose would be invoked. The personal vendetta and victimisation, as evidenced in this appeal would NOT be taken lightly by us in future. We have also found inordinate delay, departmentally, in the disposal of this simple case from 2nd July, 1980 to 28th September, 1981 and view it with concern. In our opinion this case should not have taken more than three months while it took the department nearly 15 months to dispose of it.
9. Since, as a result of the foregoing analysis, the action of the respondents against the appellant has been found to be male fide, we accept the appeal and set aside the order of appellant's compulsory retirement. H shall stand reinstated into service with effect from 28th September, 1981.
He would receive full pay and allowances for the period of suspension which we hold to be illegal.
He would be entitled to full pay and allowances with increments for the period from 28th September, 1981 till the date of his joining as a result of this order.
10. No order as to costs.