1. NASIM HASAN SHAH, J.--This appeal by the Government of Baluchistan, has been brought under Article 212 (3) of the Constitution, by leave of this Court, against the order 3-12-1983, whereby the appeal of the respondent Muhammad Nawaz Pashtoon was allowed by the Baluchistan Service Tribunal and the orders of his dismissal from Government service were set aside.
2. The relevant facts are that the respondent was serving the Provincial Government as Markaz Manager in the Local Government Department, when on 4-9-1980 he was sent to the United Kingdom to do a course under the Technical Assistance Programmed of the Colombo Plan. He was sent back by the British authorities as he was not making satisfactory progress in the course and returned from abroad in September, 1981. On his reporting for duty he was posted as Instructor in the Rural Development Academy. However, the respondent was dissatisfied with the said positing as he thought that the proposed assignment did not do justice to his qualifications, experience and abilities and made a verbal request for another posting which was more appropriate for a person of his qualifications and experience. However, his verbal request in this regard was not heeded. He, therefore, submitted his resignation on 28-12-1981 and stopped attending his duties with effect from 1-2-1981.
3. No action was taken on the respondent's resignation and instead he was informed that the acceptance or otherwise of the resignation tendered by him could be considered only if he deposited the salary amounting to Rs.21,565 drawn by him for the period that he remained under training abroad. The letter containing this information, however, according to the respondent was never received by him.
4. Since the respondent was not reporting for duty despite the fact that his resignation had not been accepted he was issued a show-cause notice dated 10-7-1982 under rule 5 (3) of Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1981 for committing gross misconduct, namely, for absenting himself from duty with effect from 1st January, 1982 despite his resignation not having been accepted which conduct amounted to desertion from duty. He was called upon to submit his explanation within fourteen days of the receipt of the said show-cause notice, failing which it would be presumed that he had nothing to say in his defence and that action would be taken ex parte.
5. The above show-cause notice and the earlier letter about return of the amount of Rs.21,565 were sent to him under register cover. These documents were duly received by his brother on 20-7-1982 who returned the letter alongwith other documents addressed to the respondent with the remarks that the respondent was abroad and that "ever since he has left I have not yet heard from him.
6. Since the aforesaid documents concern his person, I think of important nature any way and his address is not available with me. I am, therefore, very sorry to return all these letters and documents back to you (in original)" .
7. In these circumstances, the Secretary, Local Government Department, who was the "authorised Officer" issued a notice in the daily "Jang" dated 17-8-1982. The translation of the terms of the notice is reproduced below:- "NOTICE"
8. " Mr. Muhammad Nawaz Pashtoon, Instructor Rural Development Academy Baluchistan, Quetta, is absent from duty with effect from 1-1-1982. He was sent to letters on 18-7-1982 on the available address. The gist of the said letters are as under:-
(i) 'That Mr. Mohammad Nawaz Pashtoon, after tendering resignation, is absent from duty with effect from 1-1-1982. The object is clear wilful absconsion from duty for which under the rules he is liable for maximum penalty. Besides Mr. Muhammad Nawaz Pashtoon was directed that he should furnish reasons for his absence within fifteen days thereof, else ex parte action will be taken against him.'
(ii) 'That Mr. Muhammad Nawaz Pashtoon had gone abroad at Government expenses in September, 1980, for getting training, wherein one of the conditions was that on his return, he will serve the department at least for five years. Since he left the service of his own accord, therefore, a sum of Rs.21,565 which was obtained by him during his stay abroad towards salary is liable to be returned and deposited in the Government Treasury according to rules, to which he is avoiding.
9. Therefore, by means of this notice he is also informed that if he failed to deposit the above mentioned amount in Government Treasury within the fifteen days of this publication, ex parte action will be drawn against him under the rules. But these letters (gist of which is mentioned above) were received by her brother. However, he returned the same to the Director Rural Development Academy Baluchistan, Quetta, on 2-8-1982 with the endorsement that Mr. Muhammad Nawaz Pashtoon was out of country and he was not aware of the whereabouts of his brother. Therefore, by means of this publication Mr. Muhammad Nawaz Pashtoon is informed that he should give reply to the said letters immediately and should assume his duties, otherwise ex parte action will be drawn against him in accordance with rules. Besides, if, Mr. Muhammad Nawaz Pashtoon did not deposit the said amount, immediately in that case, action for the recovery of said amount will be taken under the existing law and ex parte proceedings will be drawn up.
10. (Sd.)
11. Secretary Local Government Department, Baluchistan, Quetta.
12. " As in spite of this notice through press, the respondent failed to resume his duties, orders of his dismissal from service were thereupon passed as per notification dated 6-10-1982. The respondent's review petition to the Governor of Baluchistan having been rejected, he filed an appeal before the Service Tribunal. The learned Service Tribunal accepted the appeal observing as follows: - "We observe that no proceedings in accordance with the provisions of West Pakistan Essential Services (Maintenance) Act, 1958 or provisions of Baluchistan Civil Servants (Efficiency and Discipline). Rules have been taken against the appellant. No doubt, the appellant under the rules had to attend the office in spite of his tendering resignation because unless the resignation is accepted, the appellant was 'deemed to be a civil servant for all acts and purposes and he could not absent himself from the duty. But before an extreme action from service is to be taken which was incumbent upon the respondents to proceed against the appellant in accordance with the Baluchistan Civil Servants (Efficiency and Discipline) Rules. The inquiry procedure has been laid down under rules 5 and 6. Neither the procedure prescribed under rule 5 nor the procedure made under rule 6 have been complied with. In the absence of any action in accordance with the provisions of Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1981, the orders impugned in this appeal cannot be sustained and, therefore, we set aside the order of dismissal passed against the appellant and direct the respondents that if they want to proceed against him for desertion of duty, then they may proceed against him in accordance with law."
13. Dissatisfied with the above order of the Service Tribunal, the appellant challenged the same by filing a petition under Article 212 (3) of the Constitution. In support of this petition, it was contended that no inquiry was necessary in the case of the respondent in view of the provisions of clause (c) of sub-rule (3) of rule 5 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1981, and that the Government was competent to summarily dismiss the respondent from service without conducting any inquiry, on account of his willful absence and failure to report for duty, despite notice in the press calling upon him to do so.
14. Clause (c) of sub-rule (3) of rule 5 is in the following terms:- "(c) Where despite notice in the press an employee does not report for duty and remains willfully absent, recommend to the authority his summary dismissal from service without conducting any formal inquiry.
15. Leave was granted by this Court to" consider the contention raised by the appellant as an important question as to the interpretation of the rules had been raised and no authoritative pronouncement on the point existed. However, in the meanwhile, the relevant rules have been drastically amended by Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1983. Since leave has been granted we proceed to determine the import of the rules of 1981 as in operation when the impugned order was passed because the amended rules have no retrospective effect.
16. Rule 5 of the Rules of 1981, to the extent relevant, is in the following terms:- "5. Inquiry Procedure.-- The following procedure shall be observed when a civil servant is proceeded against under these rules:- (1)-In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority. Suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
17. (2)-If the authorised officer decides that whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee, if he so decides the procedure indicated in rule 6 shall apply.
18. (3)-If the authorised officer decides that it is not necessary ,to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall:
(a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action;
(b) give him opportunity of showing cause within fourteen days against that action provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity; and
(c) where despite notice in the press an employee does not report for duty and remains willfully absent, recommend to the authority his summary dismissal from service without conducting any formal inquiry.
19. (4)
20. (5)
21. We note that the above rule 5 otherwise corresponds with such rule contained in the Federal and other Provincial Rules on the subject of conduct and discipline of civil servants, except clause (c) of sub-rule (3) which is an additional provision in the Baluchistan Rules.
22. The question is whether the above-mentioned clause (c) is an independent provision which furnishes an entirely separate ground of action authorising the Government to dismiss a civil servant summarily if the required conditions are fulfilled, namely, that notice in press calling upon the employee to report for duty is issued and he remains willfully absent or whether clause (c) aforesaid had to be read alongwith clauses (a) and (b) of sub-rule (3) of Rule 5?
23. Having examined the rule closely, we feel that clause (c) is not an independent provision but must be read alongwith clauses (a) and (b) and that it comes into play only when the efforts to secure compliance with the provisions of clauses (a) and (b) have remained fruitless or have been frustrated by the conduct of the accused officer. Clause (c) is, in other words, to be read as a "follow up" provision. Thus, in the first instance a notice under clause (a) must be sent and before action under clause (c) can be taken it is necessary that prior action under clauses (a) and (b) should have been resorted to. It is only if this has been done that the stage arrives for applying clause (c).
24. Be that as it may we find that the instant appeal must succeed. In the case in hand, action was, in the first instance, taken under clause (a) of sub-rule (3) but since further action under the said clause was frustrated by the respondent's unavailability at his last known address without leaving his new address resort had to be made to the provisions of clause (c) of sub-rule (3).
25. Consequently the authorised officer could, in. These circumstances, recommend the summary dismissal of the respondent, after he failed to comply with the terms of the notice issued in press under clause (c) of sub-rule (3) of rule 5 of the Rules.
26. On this view of the matter, the present appeal must succeed.
27. However, we would like to point out that the respondent did submit a reply on 25th September, 1982 to the notice published in daily 'fang' on 17-8-1982. Undoubtedly, this reply was submitted after the expiry of the period provided for in the said notice, but it is noteworthy that he took up the position that after the submission of his resignation he did not receive any reply and that he had absented himself on the assumption that his resignation must have been accepted. He also gave detailed reasons why he was constrained to resign his post but in the end he requested that the allegations contained in the show-cause notice may be withdrawn on the basis of his explanation furnished and his resignation accepted. However, this request was not accepted and the appellant dismissed from service, as noted already.
28. We feel that the respondent, who is well-qualified in his field, should not be deprived of the opportunity of serving the community. There can be no doubt that there was no justification for his not joining the post offered to him and his conduct in declining to accept it; on the ground that the post being offered was not worthy of his experience and talents exhibited an arrogance that cannot but be deplored. But the Government should be large hearted. At one stage, it was prepared to consider his resignation if he returned the amount Of Rs.21,565 drawn by him towards his salary while he was on training in U.K. The respondent has stated before us that he is prepared to return the above amount if his resignation is accepted.
29. We would, therefore, observe that if the respondent makes a representation for the modification of the order of his dismissal passed against him the same should be considered favourably by the authorities concerned who may be pleased to modify the orders of dismissal to the extent that his resignation is accepted, subject, of course, to the payment by the respondent of the amount of Rs.21,565 drawn by him towards the salary during the period of his training abroad.
30. This appeal, with the above observations, is allowed: The parties, in the circumstances, are left to bear their own costs.