' BRIG. (RErD.) ABDUR RASHID (MEMBER).-Facts of the case are that the appellant, who had been in the service of Pakistan Rangers since 26th January, 1951 and held the rank of Inspector, was relieved of his duty on 26th March, 1979 and was subjected to an enquiry in which certain Ranger personnel were involved in theft and sale of ammunition. The appellant remained associated with the said enquiry till 8th April, 1979 but nothing was found against him by the S. I. B., G. H. Q.
2. The appellant was granted two months' earned leave from 10th April, 1979 to 9th June, 1979.
Another departmental enquiry (independent of the S. I. B. And referred to in para. 1) of the theft of ammunition underway in the Sutlej Rangers found that the appellant was somehow involved and he was accordingly, informed through a special courier that his leave had been cancelled and that he was to resume duty on 16th April, 1979. The appellant, however, did not do so. On 30th April, 1979, the respondent department issued a desertion roll to S. P., Kasur for apprehension of the appellant.
The appellant filed a writ before the Lahore High Court on the ground that the warrants of arrest issued by the respondent be declared as without lawful authority and of no legal effect. The writ was, however, dismissed on 23rd May, 1979 by the learned Judge on the ground that the warrant of arrest had not been issued by the commanding officer and that he had simply requested the S. P., Kasur to apprehend the petitioner who was a deserter. The appellant went in appeal before the learned Supreme Court. The said Court vide order dated 16th June, 1979, allowed the application subject to all just exceptions and the S. P. Was called upon to furnish report with regard to the authority of law under which he was acting on the directions of Commandant Sutlej Rangers, the commanding officer of the appellant. Action by Police against the appellant came to a halt.
3. The appellant sent three medical certificates from private petitioners. Each one of the medical certificates was for two months' leave beginning from 7th June, 1979 and ending on 6th December, 1979. In the meantime and during his absence, the appellant applied for retirement from 15th May, 1979. This request was kept pending. The appellant reported for duty of his own accord on 6th December, 1979 (A. N.) after an absence of 7 months and 22 days. A departmental enquiry was held in the presence and hearing of the accused which culminated in a charge-sheet dated 30th December, 1979 which is reproduced : "The defaulter No, R 1-2144 Rank Inspector Name Khurshid Ahmad is charged with as under : Pakistan Rangers Ordinance, 1959, section 15 (1).-Misconduct in his capacity as a member of the force, in that he while employed as Reserve Inspector at Unit H Q Sutlej Rangers, Lahore and granted 2 months E/leave from 10th April, 1979 to 9th June, 1979 which was cancelled w. e. f. 16th April, 1979 due to his involvement in the misappropriation and illegal selling of ammunition, property of Government. Of Pakistan, and he was informed telegraphically as well as by a separate Notice personally handed over to him through a special courier to resume duty to attend the Court of Inquiry, intentionally avoided to rejoin as he was reluctant to face the consequences of inquiry and later reported back on 6th December, 1979 at his own accord after an absence of 7 months and 22 days."
4. The appellant furnished his reply to the charge-sheet on 31st December, 1979 denying the allegation. Later, on 25th September, 1980 a show-cause notice was served on the appellant which is reproduced : "Subject : Show-cause notice
(1) After going through the proceedings of the departmental inquiry conducted against you under rule 4 of the Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967, you have been found guilty, in that you while employed as Reserve Inspector at Unit H Q Sutlej Rangers, Lahore when granted two months' earned leave from 10th April, 1979 to 9th June, 1979 which was subsequently cancelled w. e. f. 16th April, 1979 due to your alleged involvement in the misappropriation and illegal selling of Service ammunition, property of Government of Pakistan, and when informed telegraphically as well as by a separate notice personally handed over to you through a special courier to resume duty to attend the Court of Inquiry, intentionally avoided to rejoin as you were reluctant to face the consequences of inquiry and later reported back on 6th December, 1979 at your own accord after an absence of 7 months and 22 days.
(2) By reason of the above, it is proved that you have been found guilty of misconduct in your capacity as a member of the force, for which you are liable to be awarded a major penalty i. e.
Dismissal from service under section 15(1) of the Pakistan Rangers Ordinance, 1959.
(3)You are, therefore, called upon to show cause in writing within 24 hours of receipt of this notice as to why penalty mentioned in para. 2 above should not be imposed on you for the offence mentioned in para. 1 above.
(4) If your reply is not received within the aforesaid time, it will be presumed that you have no cause to show."
5. The appellant replied to the show cause and pleaded innocence as to his absence from duty. On 27th September, 1980 the appellant was dismissed from service by the Director-General Rangers on the charge of absence.
6. The appellant preferred a departmental appeal to the Secretary, Interior Division, on 25th October, 1980 against his dismissal. This appeal was rejected vide letter dated 15th December, 1980 whereafter the appellant filed his present appeal before the Federal Service Tribunal on 8th January, 1981 and is being disposed of by this order.
7. The learned counsel for the appellant attacked the vires of the Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 (hereinafter to be referred to as Rangers Rules, 1967) on the ground that after the promulgation of the Civil Servants Act, 1973 and in accordance with section 25(2) thereof, the Rangers Rules, 1967 "in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provision of this Act, be deemed to be rules made under this Act.". According to the learned counsel, the Rangers or such of them as came within the definition of section 2(b) of the Civil Servants Act, 1973, could not be governed by any rules except the Government Servants (E & D) Rules, 1973 since the Rangers Rules, 1967 were not consistent with the said Government Servants (E & D) Rules, 1973. Such being the legal position, the action taken against the appellant was void ab Mirk) and deserved to be struck down, argued the learned counsel. While repelling the plea of the learned counsel for total or wholesale inconsistency of the Rangers Rules, 1967, we invited his attention to section 15 of the Civil Servants Act, 1973 wherein it is laid down that "the conduct of a civil servant shall be regulated by rules made or instructions issued by Government or a prescribed authority whether generally or in respect of a specified group or class of civil servants. We drew his attention to the fact that section 15 of the Civil Servants Act, 1973 read with section 25(2) of the Act left no doubt that the Rangers Rules, 1967 had been framed with specific reference to the role of the Rangers and came within the meaning of special rules and since special rules had ascendency over the general rules, which in this case were the Government Servants (E & D) Rules, 1973, the Rangers Rules, 1967, drawing their strength from the Rangers Ordinance, 1959 were to prevail, the Civil Servants Act, 1973 notwithstanding. However, we did desire the learned counsel to point out glaring inconsistencies existing between the Rangers Rules, 1967 and the Government Servants. (E & D) Rules, 1973, which may have deprived the appellant of his legitimate rights of self-defence in the matters of disciplinary proceedings under adjudication.
8. The learned counsel adverted to the issuance of desertion roll (on 30th April, 1979) in respect of the appellant and his apprehension by S. P., Kasur for not rejoining his unit on 16th April, 1979 when his leave had been cancelled. The charge of desertion is loveable only and only when the Rangers are deployed on "active duty ' and "active duty" as defined in clause 2(a) of the Pakistan Rangers Ordinance, 1959 meant "duty under the operational control of the army." Since, at the relevant time, the appellant was not on active duty, there is no provision of law which could be invoked to declare him a deserter which calls for 7 to 14 years' R I. The act of issuance of the desertion roll was, therefore, an illegal act which caused the appellant untold mental torture apart from a good deal of expenditure before the learned Supreme Court allowed the application of the appellant, argued the learned counsel. We find that this is indeed the legal position and hold the respondent department guilty of acting beyond their jurisdiction and acting illegally. We may take this opportunity of mentioning that even clause 14(n) (ii) of the Rangers Ordinance which lists desertion (while not on active duty) would also no apply to the appellant because he had been allowed two months' earned leave w. e. f. 10th April, 1979 and if he were to be charged it could only be under clause 14(1) of the Rangers Ordinance, 1959 for overstaying leave without sufficient cause after his leave had been cancelled on 16th April, 1979. Another peculiar 'feature of this uncalled for incident is that a departmental enquiry was held in the absence of the appellant. The report submitted by this committee of enquiry bears no date at all. The enquiry committee in its recommendations said.
"The Court recommends that RJ-2144 Inspector Khurshid Ahmed may be declared as deserter and apprehension roll for his arrest be issued. The Court further recommends that severe disciplinary action be taken against the said Inspector for his involvement in the case of misappropriation and illegal selling of ammunition property of Government of Pakistan, for not resuming the duty/ reporting own hospital and attending the enquiry as well."
' The Commandant appended the following remarks dated 6th October, 1979 on the above enquiry report : "I agree with the findings, opinions and recommendations of the Court. The alleged illness is being used by RJ-2144 Inspector Khurshid Ahmed as a false pretext for absenting himself from duty and to appear before C. Of I. Departmental Inquiry as he is reluctant to face the consequences of inquiry. He may be declared as deserter and his suspension order from service be issued."
' The point which we wish to highlight, illegality apart, is that the Commandant Sutlej Rangers authenticated the enquiry report and accepted the recommendation that the appellant be declared a deserter and this he did on 6th October, 1979 but the desertion roll for arrest of the appellant had been issued as far back as 30th April, 1979. We are sure that the Rangers would be hard put to explain their conduct in respect of this incident.
9. The next issue taken up by the learned counsel (for the appellant) was that of suspension of the appellant as ordered w. e. f. 16th April, 1979 while the said order was passed on 17th October, 1979.
Not only that no one could be suspended retrospectively but if someone, like the appellant,1 was not holding any charge being away on leave, he could not be suspended at all, argued the learned counsel. We find a good deal of force in this argument and hold the order of appellant's suspension issued by the Commandant, Sutlej Rangers vide his No, 0229/A/1516, dated 17th October, 1979 to be illegal.
10. The learned counsel for the appellant then took up the issue of validity of the punishment with reference to Form B, "Form For the Award of Punishment" and the non-issuance of a second show- cause notice thus reducing the proceedings to a nullity. Arguing the point at issue the learned counsel referred to rule 4(a) (x) and (xi) which read : "(x) after going through the evidence, hearing the defaulter and the prosecution and examining the record, the competent authority shall record its finding of "Guilty/Not Guilty" on the Form alongwith the punishment awarded;
(xi) if the competent authority records a finding of guilty, it shall-
(A) communicate the nature of the proposed penalty to the defaulter before passing final orders ;
(B) call upon him to show cause within a reasonable time, which shall not be less than twenty-four hours, why such an action should not be taken against him; and
(C) take into consideration the cause shown by the defaulter and the statement by him, if any, before passing final orders for award of punishment."
11. Since the appellant had been found guilty, then as visualised and in the light of (xi) above, the appellant should have been served another show cause which was not done and he was awarded dismissal the very first time he appeared before the competent authority on 27th September, 1980.
Whereas the learned counsel for the respondents did concede that the reading together of (x) and
(xi) above left no doubt t this was so, the departmental representative stated before us that this had never been the practice in the past. We are also of the considered view that the two sub-rules
(x) and (xi) if read together, do visualise a second show cause. The Rangers may consider rewording the said provisions and combining them into one so that the requirement of the second show cause is complied with. They should also suitably modify Form so that those held guilty are given another show cause and reasonable time to appear before the competent authority who should record this fact and then award the punishment on the subsequent date.
12. After the appellant had rejoined of his own accord on 6th December, 1979, a departmental enquiry was held against him between 16th to 20th January, 1980 and it dealt with two charges of misappropriation and sale of ammunition, the charges of which the appellant had been exonerated by S. I. B. And thereafter allowed to proceed on two months' earned leave w. e. f. 10th April, 1979. Nothing was found against the appellant in the departmental enquiry of January, 1980 and he was again exonerated.
13. Another enquiry was held earlier between 18th and 24th December, 1979 under clause 14(1) of Rangers Ordinance, 1959. It pertained to absence without leave or overstayal of leave without sufficient (cause. (We may mention that in the copy of the said Ordinance, 1959 made available to us, the relevant clause is as we have mentioned whereas the charge-sheet invokes clause 15(1) of the Ordinance ibid. The respondent department may like to look into it even though it may be a minor typographical error). The enquiry committee held the appellant guilty resulting in his dismissal.
14. It would be as well to go over the chain of events to arrive at a conclusion in this appeal. It is an admitted position that the appellant's conduct alongwith others was thoroughly investigated by the S.I.B. Of G.H.Q. As to the misappropriation and sale of Government ammunition and he was exonerated. After handing over the charge of his office on 26th March, 1979, he remained with the S. I. B. Investigation team till 8th April, 1979. Nothing was found against him. He was allowed two months' earned leave from 10th April, 1979 to 9th June; 1979. However, a departmental enquiry was also being conducted into the ammunition racket. While the appellant was away on leave, one Hay. Reham Ali Shah, appearing as witness No, 16, allegedly made a statement which is on record and which directly involved the appellant in the ammunition case. (Again, we regret to point out that this enquiry report itself bears no date and neither do the remarks of the Commandant but from the covering letter we infer that it may have been ordered some time in March and completed in May, 1979). From the enquiry report referred to at para. 8 above, we discover the reasons which led to cancellation of appellant's leave. For this, we reproduce relevant portion of the statement of Commandant-Sutlej Rangers : "On 13th April, 1979, the Adjt. Informed nib that No, 25236 Hay. Reham Ali Shah (Witness No, 16) has disclosed the involvement of RJ-2144 Inspector Khurshid Ahmed who was on leave at that time. He further requested my permission regarding recalling and cancellation of leave of above Inspector as his statement was also required to be recorded. On this, I ordered him to issue a telegram to Inspector Khurshid Ahmed cancelling his leave and also to send a letter through special courier to ensure his timely arrival. I also called No, 25236 Hay. Reham Ali Shah in my office and enquired from him regarding veracity of his statement. On this, he testified on Holy Quran his statement given earlier before the Court of Inquiry i. e. Regarding payment of Rs, 1,000 to R.1-2144 Inspector Khurshid Ahmed in 2 instalments for the illegal disposal of 500 rounds (100 rounds of .303 ammo and 400 Indian rounds left over during 1971 War)."
' However, Hay. Reham Ali Shah in the same enquiry completely resiled from his earlier statement (made before a separate enquiry committee which completed its proceedings presumably in May, 1979 as stated) because according to the said Havildar, he had implicated the appellant due to a disturbed state of mind.
15. As regards the charge under clause 14(1) of the Rangers Ordinance, we find that the appellant was in regular correspondence with his unit which included despatch of medical certificates. It is also on record that the medical practitioner (Dr. Mahmood Bokhari) denied in writing ever having issued the medical certificates for leave due to appellant's heart condition. It is also on record that his unit exhorted as well as requested the appellant to rejoin but strangely enough there is nothing on record to show that the appellant was ever ordered to appear before a regularly constituted medical board or even before the A.D.M.S. Of the Rangers for second opinion at a fixed date and time. In any case, the weight of evidence against the appellant does lead us to believe that he did, in fact, overstay leave without sufficient cause. On the other hand, we also find that there are equally weighty mitigating circumstances. The unjustified cancellation of his well-earned leave came at a time when the enquiry at the hands of the S. I. B. Was still fresh in his mind. This cancellation of leave was, unfortunately, based on the sole statement of mentally disturbed Havildar Reham All Shah with no corroborative evidence. It resulted in certain other illegal and hasty steps being taken against the appellant, in, Eliding misery and hardship on him for which major share of the blame mast be apportioned to the respondent department. All the actions of the respondents which culminated in his dismissal and which have been brought out are poor manifestations of abuse of authority and could have been avoided.
16. In view of the foregoing analysis, we have come to the conclusion; that the punishment of dismissal is too harsh. We, therefore, modify the order of his dismissal dated 27th September, 1980 to that of retirement with effect from the same date with full pensioner benefits.
17.