MUHAMMAD IRSHAD KHAN (MEMBER)--The appellant was served with a show-cause notice, dated 31-1-1985 which is reproduced below:- "To Mr. Dilawar Khan s/o Roshan Khan Inspector, C/o Central Excise Circle, Mardan.
Subject:-SHOW-CAUSE NOTICE.
Whereas there was a report that Mr. Dilawar Khan, Inspector, Central Excise Circle, Mardan had proceeded abroad without obtaining leave ex-Pakistan, he was called to the Headquarters, Office and asked to explain his position. Vide a brief written statement, dated 9-1-1985 Mr. Dilawar Khan claimed that he had never gone outside Pakistan and also that he did not possess a Passport (Copy of Mr. Dilawar Khan's written statement enclosed.)
(2) The matter was taken up with Assistant Director, Immigration and Passports, Peshawar, who intimated that Mr. Dilawar Khan son of Roshan Khan, Par Hoti, Mardan had been issued Passport No.A-170382 on 19-3-1984. Photo copy of the relevant Form A shows a copy of Mr. Dilawar Khan's identity card, his photograph and the fact of issue of the Passport. (Photo copy of two pages of Form A attached.) The aforesaid Form A filled by Mr. Dilawar Khan for obtaining a passport shows his profession as "agriculturisd".
(3) Further enquiries revealed that British Airways, Rawalpindi issued a Ticket No.125-2339806 dated 28-3-1984 to Mr. Dilawar Khan for travel between Rawalpindi-London-Rawaipindi. A copy of British Airways letter, dated 23-1-1985 is enclosed.
(4) Whereas
(i) the untrue denial of having obtained a passport,
(ii) having gone abroad without leave ex-Pakistan,
(iii) the incorrect declaration of profession in his application to the Immigration and Passport Department as "agriculturist" as against his actual profession of "Government service", constitute gross misconduct within the meaning of Government Servants (Efficiency and Discipline) Rules, 1973. Now, therefore, Mr. Dilawar Khan is called upon to explain within 14 days of the issue of this show-cause notice as to why major penalty of dismissal from Government service under the said Rules should not be imposed upon him for his acts of misconduct narrated above.
He should indicate if he wishes to be heard in person. If no reply to the show-cause notice has been received within the specified period it will be presumed that he has nothing to offer in defence and ex parte action will be taken on the basis of available record.
Sd/- (Muhammad Wall Khan)
Deputy Collector."
2. The appellant submitted a reply to the above show-cause notice and on receipt thereof an order dated 1-3-1985 was passed by the Collector, Central Excise and Land Custom, Peshawar, whereby the penalty of dismissal from service was imposed upon him. This brought the appellant to this Tribunal.
3. The appellant's case in his defence is that in the month of March, 1984. He applied for three weeks earned leave which was sanctioned and during such leave due to some emergency, he visited London. He was not aware that to visit abroad he was required to obtain ex-Pakistan leave. After he returned and joined duty, Respondent No.1, the Collector, Central Excise and Land Custom, Peshawar, summoned him and enquired from him about his visit to London and when the appellant answered in affirmative, the said Respondent advised him that in order to avoid complications, it; would be in his interest if he denies the factum of the possession of the passport and his visit to London and accordingly the appellant wrote four lines explanation in Urdu. He urged that his declaration about the profession in his application to the Passport Department was not incorrect because primarily he is an agriculturist. It was further pleaded that the entire allegations against the appellant if put together, do not constitute "misconduct" as defined in rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973, and do not call for any punishment under rule 4 of the said Rules.
4. We have given our anxious consideration to the facts of the case and pleas raised by the appellant. In our view, making a misstatement by the appellant before his departmental authority clearly constitutes a misconduct and, therefore without adverting to the remaining two charges viz. Having gone abroad without obtaining ex-Pakistan leave and incorrect declaration in the passport application, we find it sufficient for concluding that he has been rightly held guilty of misconduct. At the same time, however, keeping in view the nature of guilt, the small length of service of the appellant, the factum of his being first offender and other relevant circumstances of they case, the punishment of dismissal from service, in our opinion, is much too severe and does not commensurate with the charges levelled) against him. It is noticeable that by committing the aforesaid acts and, omissions, the appellant had neither caused any wrongful loss to the Government nor has gained anything wrongfully. Therefore, the misconduct committed by the appellant called for only a minor penalty. It may be pertinently added that having watched the demeanour of the appellant during the hearing of the appeal, felt that he was repentent for the omissions he had committed, and for this reason also he deserves a lenient treatment. Above all, it is to be seen that on receipt of the information of the appellant's visit abroad the Collector, Central Excise and Land Custom, himself summoned the appellant, interrogates him and obtained a statement from him in writing. We are, however, of the view that if the said Collector intended to take disciplinary action against the appellant for the allegations reported to him, the only proper course of action for him was to direct the Authorised Officer to initiate action against the appellant in accordance with he provisions of the Government Servants (Efficiency and Discipline) Rules, 1973, under which the action could be initiated only by the Authorised Officer, who, was the Deputy Collector. As laid down by the superior Court, If a public authority is required by a statute to do a thing in a particular manner, it must be done in that manner alone and in no other manner. There was thus no occasion or justification at that stage, for summoning and interrogating the appellant by the Collector. An impression, therefore, cannot be avoided that the said Collector was pre- determined to get rid of the appellant. This, by itself, constitutes a mitigating factor for us calling For reduction of the extreme penalty.
5. In our opinion, dismissal from service is the capital punishment in service matters and can, therefore, be awarded for the gravest kind of misconduct only. Incidentally, in another case of S. Sajjad Hussain Shah, the appellant before us in Appeal No.233(P) of 1984, we have noticed that while serving as Inspector at Bars Check Post under the same Collectorate, he was found guilty of commission of a corrupt act of deliberately making incorrect entries in the Government record and thereby attempting to misappropriate the seized goods but for such a grave misconduct a minor penalty of stoppage of two annual increments only was awarded to him; while the appellant was punished with the extreme penalty of dismissal from service for a minor offence.
6. In view of the foregoing, the quantum of punishment awarded to the appellant is un-approvable.
We, therefore, alter the punishment by reducing it from dismissal from service to that of censure and stoppage of two increments without accumulative effect. Consequently, the appellant shall be reinstated in service and the intervening period when he remained out of job, shall be treated as extraordinary leave without pay.
7. Except the above modification in the punishment, the appeal is otherwise dismissed with no order as to costs.
A. E.