1. ' MUNAWAR ALI KHAN (CHAIRMAN).--This case is a sad commentary on the performance of the officers concerned of the Education Department. The departmental proceedings which were started in this case 12 years ago with suspension of the Abdul Rehman Channer by order dated 26- 8-1976, were concluded with passing of the impugned order dated 15-3-1988 whereby two annual increments due to the appellant from 1-12-1987 to 30-11-1989 have been withheld. The factual background of such a messy situation may be summarised as follows.
2. ' The appellant joined the Education Department as Under Graduate Teacher. After doing his graduation he was promoted as Graduate Teacher and was later confirmed in that capacity after clearing B.Ed. Examination. While he was posted at the Training College for Men, Hyderabad, he held the additional charge of Superintendent of the Hostel No, 4 attached to the said College. By order dated 3-3-1976 he was directed to hand over the charge of the said hostel to his successor.
3. Mr. Sher Shah on the very day of the order. However, he actually handed over the charge to him on 15-4-1976. Subsequently by order dated 5-8-1976 the appellant was transferred to Government Training School, Khandkot where he resumed his duties on 23-8-1976. Three days later on 26-8- 1976 he was placed under suspension, and was served with a charge-sheet dated 3-9-1976. After holding the necessary enquiry into the charges made against the appellant the Inquiry Officer allegedly submitted his report on 27th October, 1976. Although it was not communicated to the appellant officially, he obtained the same by his private efforts. Somehow no action was taken on the enquiry report, herefore the appellant made repeated applications for his reinstatement in service. Having failed to get any response from the concerned authorities, he got a legal notice served on respondents Nos. 1 and 2, through his Advocate, on 4-6-1984 requiring them to reinstate him in service. The said notice also went unheeded by the authorities. Once again the appellant made application dated 24-7-1984 to the Secretary, Education Department and another application dated 21-8-1984 to the Governor/Chief Secretary, forwarding copies thereof to respondents Nos. 1 and 2. On this, he received a copy of the letter dated 12-11-1984 of the Secretary, Education Department, directing the Director, Bureau of Curriculum and Extension Wing with regard to appellant's case. In compliance of the said letter the appellant was reinstated in service until finalization of disciplinary proceedings against him vide order dated 21-11-1984. Accordingly he resumed his duties on 22-11-1984.
4. ' Subsequent to appellant's reinstatement in service, he was served with final show-cause notice dated 17-2-1985 issued by respondent No,
3. He submitted his explanation to the said notice on 2- 3-1985. However, by separate application dated 24-4-1985 the appellant requested for holding the enquiry afresh. His request was granted and de novo inquiry was ordered vide order dated 5-11- 1986. Thereafter, a fresh charge-sheet dated 15-11-1986 accompanied by a statement of allegations, was served on the appellant. In his explanation dated 4-12-1986 to the said charge- sheet, the appellant refuted the allegations leveled against him. In course of the enquiry following the said charge-sheet the Enquiry Officer examined one witness namely Shershah beside examining the appellant. Though the appellant was not supplied a copy of enquiry report, two notices one dated 7-11-1987 and another dated 19-11-1987 were issued to him requiring him to show-cause why minor penalty of withholding of two annual increments should not be imposed upon him. He submitted separate explanations dated 17-11-1987 and 7-12-1987 to the aforesaid two show-cause notices. Obviously after considering his explanation, the impugned order dated 15-3- 1988 was passed whereby minor penalty of withholding of his two annual increments from 1-12- 1987 to 30-11-1989 was awarded to him. The appellant preferred departmental appeal dated 31-3- 1988 from the said order but as the said appeal was not decided within statutory period of 90 days, he filed the present appeal on 28-7-1988.
5. ' The learned counsel for the parties, Mr. Abdul Sattar for the appellant and Mr. Salman Ansari for the official respondents were heard elaborately. We also went through the massive file of the case carefully.
6. ' The last charge-sheet dated 15-11-1986 which was served on the appellant contains the following charges:
(1) On being transferred from Training College of (Men), Hyderabad to Training School, Khandkot, the former Inspector Training Institutions Sind had directed you vide his letter No, TCM-3094/75-76, dated 3-3-1976 to handover complete charge of Hostel No, 4 including its furniture, Electricity accounts, Utensils residential quarter etc. To Mr. Sher Shah, the then M.S.T. Of the said college but you had flouted the orders of the officer concerned with impunity and did not handover the charge as directed. This amounts to gross-misconduct, disobedience and willful defiance of the orders.
(2) On being transferred to Government Training School, Khandkot, you were reported against by the Head Master vide his letter No, GTS/KK/471/1978, dated 16-4-1978 that after having joined your duty on 28-8-1976 to 19-11-1984 i,e, for a period of 8 years 2 months 24 days without any lawful authority. Such as action on your part amounts to desertion from duty.
(3) That you were suspended by the then Director Bureau of Curriculum and Extension Wing, Sind, Jamshoro under her Order No, BC/Ext/ADMN/2312-14, dated 28-8-1976 on account of your above reported misconduct, insubordination and disobedience, directing you to be present at your Head Quarter i,e, at Khandkot during the period of suspension but it was reported to the authorities that you did not remain present at the Head Quarter and left it according to your own sweet will.
(4) That you failed to account for the Electric charges collected by you from the trainees of Hostel No, 4 attached with Training College (2), Hyderabad for the period from 14-3-1973 to 3-3-1976, you worked as House Master of said Hostel and at the same time you also failed to deposit the Electric Bill issued by WAPDA authorities, as detailed below. Bill from 4/73 to 11/74 Rs,2,198.60."
7. ' Admittedly the Enquiry Officer examined only one witness namely Syed Sheer Shah beside the appellant in course of the enquiry. After taking into consideration the material which was brought to his notice, the Enquiry Officer held the appellant guilty of only one charge namely his failure to attend Headquarter during the period of his suspension. This can be verified from para. 3 of the conclusion reached by the Enquiry Officer in his report. The said para. Which appears at page 8 of the enquiry report reads as under:- "3. The only charge which stands factually proved against Mr. Abdul Rehman Channar is that he failed to attend Headquarter during the period of his suspension, but to this charge one should also be very much realistic. In my opinion Mr. Abdul Rehman Channar has already suffered a lot for not attending the Headquarter during the period of his suspension. He has also suffered the penalty for receiving no salary for the period from 1976 to 1984 during which he actually did not perform any duty. I am, therefore, of the opinion that no drastic view of this aspect be taken at this stage under the present circumstances when the accused has been reinstated in service by the Government of Sind vide Education and Culture Department Karachi's Order No, S.O. (E-II) 1100/84, dated 12-11- 1984."
8. ' We would, therefore, confine ourselves to the discussion of the above charge. It would appear that the charges at S. Nos. 2 and 3 in the charge-sheet relate to the charge of the appellant's long absence from duty. In his explanation to the charge-sheet the appellant has categorically denied the said allegations. According to him the suspension order was never served on him. However, he came to know about it and saw the same in the office of the Inspector concerned. His plea is that the said order did not require him to sign regularly on the Muster Roll. Ile has further stated that as per letter of the Head Master of the Training School, Khandkot there was no vacancy of H.S.T. In the said school and as such it was the responsibility of the Controlling Authority to issue further directions for the appellant to report for duty elsewhere but neither suspension order was modified nor requisite instructions were communicated to him to report for duty or be present in the Headquarter. It is also the appellant's grievance that in disregard of the legal requirements he was kept under suspension for more than eight years. Despite the appellant's above explanation he has admitted in course of the enquiry that he did not attend the Headquarter at Khandkot. However, he has given following reasons for his non-attendance, namely; "(1) I was transferred and resumed on 23-8-1976 (F.N.) against the non-vacancy post of H.S.T. (2) Due to such error of Controlling Authority I have not received my regular pay for the legitimate duty from 11-8-1976 to 24-8-1976 as yet. (3) Due to sickness, I proceeded on medical leave. Such application was forwarded and also recommended for favorable consideration to Inspector by the Head Master, Government Training School, Khandkot. (4) On 30-8-1976 at Hyderabad I submitted application to the Director concerned personally to allow me and to modify the suspension order to stay at Hyderabad to look .After my ailing wife as well as new born son such medical slip of L.M.C., Hyderabad was submitted to the Director concerned, who on humanitarian principles allowed and promised to modify the suspension order. She permitted me to stay at Hyderabad but after long period she called me to explain regarding H. Quarter. (5) After I performed my duty at Khand(i) upto24-8-1976 (ii) I proceeded on medical leave w,e,f, 25-8-1976 suspension order was passed on 26-8-1976. After two days I proceeded on medical leave the suspension order was passed. I was not informed accordingly. After very long period I was called upon to explain but I was not as yet informed to be present at Headquarter".
9. ' We have given due consideration to the appellant's explanation for his failure to attend at the Headquarter. The reasons given by him may or may not be justified but one thing is clear that he remained under suspension for a long period of more than eight years, right from 26-8-1976 to 22- 11-1984, the date of his reinstatement. The question that has been agitating our mind is whether such a long suspension was warranted by rules. The relevant rule relating to suspension is sub-rule
(1) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the said Rules. It reads as under: "(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."
10. ' It is true that the Director, Bureau of Curriculum and Extension Wing, Sind, Hyderabad, who in the case of the appellant was 'Authority' had passed the order of his suspension. Consequently it may be argued that as required by the above rule the question of obtaining approval of the 'Authority' after every three months did not arise. This view in our opinion does not appear to be correct. The intention of the above rule is so apparent that it needs no elaboration. We are clear in our mind that the above rule did not authorise the keeping of the appellant tied with a rope of suspension for an indefinite period as has been done in his case. Even though the order of his suspension was made by the "Authority" herself, yet the question of extension of suspension required quarterly review so that the "Authority' was to justify the continuation of the appellant's suspension by giving appropriate reasons. But we have not come across any such order in the file of the case. On the contrary the record shows as if the authorities totally forget about the case of the appellant following the submission of the first enquiry report on 27th October, 1976. They had to be awakened from their deep slumber by the appellant. It was after he got legal notice served on them and took his complaint to the highest authority namely the Governor that the Secretary, Education Department issued necessary directions vide his letter dated 12-11-1984 to the Director for appellant's reinstatement, etc. It is thus clear that for all these years neither the Director acting as "Authority' nor the officer below his level in the capacity of the "Authorised Officer" took any action whatever they deemed fit on receipt of the enquiry report which was admittedly submitted on 27- 10-1976. Such a callousness on the part of Authorised Officer/Authority in the appellant's case was surely inexcusable. In the circumstances pointed out above, we are of the view that the appellant was under no legal obligation to obey such an arbitrary rather capricious order of supension and silently tagged himself for eight long years to the so-called Headquarter (Khandkot). Moreover, there seems to be truth in the appellant's contention that when he reported for duty at Khandkot the Headmaster of the Training School of the said place expressed that there was no vacancy of H.S.T. As per sanctioned strength of the said Training School. In this connection reference may be made to the letter of the Headmaster dated 23-8-1976 addressed to the Inspector of Training Institute, Hyderabad Region, Hyderabad. In this letter the Headmaster had made it clear that after one Mr. Muhammad Irfan Baloch resumed his duty, there was no further vacancy in the said school and therefore by the same letter the Headmaster sought further instructions obviously with regard to appellant's posting. This letter too, seems to have been unresponded as no reply was produced before us by the learned counsel appearing on behalf of the official respondents.
11. ' We are astonished to note in the written statement that in order to cover up their own lapses the authorities have taken the stand that the appellant had absconded during the long period of eight years. Even if their plea was accepted, they were not relieved of their legal duty of having finalized the disciplinary proceedings, they had initiated against the appellant. As stated above, instead of taking necessary steps for concluding the same they conveniently forgot about the case until they were alerted by their high-ups. Therefore, it does not lie in their mouth to say that it was the appellant, who had absconded from duty. As stated above the appellant was under no legal obligation to comply with the order of his suspension which continued illegally for over eight years by gluing himself to the Headquarter. Accordingly we cannot agree with the finding of the Enquiry Officer that the charge of appellant's failure to remain at the headquarter for the period of his suspension has been proved.
12. ' Apart from above, the final show-cause notice dated 19-11-1987 appears to be inconsistent with the ultimate conclusions recorded by the Enquiry Officer in his report. As against the charges reflected in the show-cause notice, the Enquiry Officer held the only charge of the appellant's failure to attend the Headquarter as factually proved. It is also an admitted position that the appellant was not supplied a copy of enquiry report. Even the final show-cause notice served on him does not give such indication. In this connection reference may be ade to the Supreme Court Authority reported as Syed Mir Muhammad v. I .-W.F.P. Government PLD 1981 SC 176 wherein it was held:- "After giving our anxious consideration to the submissions made by the learned counsel for the parties, we have formed the view that in a case where a formal inquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused official so as to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the Inquiry Officer, as the case may be. Such a requirement cannot be brushed aside by saying that it would amount to a second show-cause notice."
13. In view of the above authority since the appellant was not given a copy of the enquiry report all proceedings are vitiated. Even on this legal ground the u impugned order cannot be sustained.
14. ' For above reasons appeal is allowed with no order as to costs and the impugned order is set aside.