1. ' MUNAWAR ALI KHAN (CHAIRMAN).--Aggrieved by order No,S.O.II(H)N-10/83, dated 21st September, 1987 of the Secretary to Government of Sind, Health Department whereby the appellant, Dr. Nadir Ali Khan was removed from service, the latter has filed the present appeal.
2. ' The brief history of the case as given in the written statement filed on behalf of the official respondents is as follows. On recommendations of the Sind Public Service Commission the appellant was appointed as Medical Officer on 1-2-1983. He was first posted as Planning Officer in the Health Department, of the Sind Secretariat. Subsequently on his own request the services of the appellant were placed at the disposal of the Director, Health Service Sind, Hyderabad for posting at Karachi. He was posted in Sind Government Lyari General Hospital, Karachi, as R.M.O. Against a newly-created post. From there he went on transfer as Medical Officer, A.I.Thani Orangi Town Hospital Karachi on 29-7-1984. However, he took no interest in his job whereupon the Incharge of the said hospital advised him to concentrate on his duties. He was ultimately transferred from the Orange Hospital to Khairpur vide notification dated 30-3-1985 but he did not join at his new place of posting. Instead he started making applications against his superiors without observing the appropriate channel for routing such communications. He was cautioned to desist from doing so.
3. At last he was served with show-cause notice on 9-7-1987 to which he submitted his explanation.
4. After considering his reply and giving him personal hearing major penalty of removal from service was imposed upon the appellant with approval of the competent authority by order dated 21-9- 1987. The appellant filed departmental appeal to the Chief Secretary against the said order but as it remained undecided for 90 days he filed the present appeal before this Tribunal.
5. ' We heard the arguments of the learned counsel for both the parties and also glanced through the documents relevant for disposal of the appeal.
6. ' The disciplinary action which led to the appellant's removal from service was initiated with service of show-cause notice on the Appellant. The show-cause notice dated 9th July, 1987 which was admittedly served on the appellant reads as under; ' the Sind Civil Servants (E & D) Rules 1973, I, Salik Nazir Ahmad, Secretary to Govt. Of Sind, Health Department and Authorised Officer,
(a) am of the opinion that in view of the allegations that you have committed acts of misconduct and indicipline details of which are given below, there are sufficient grounds that disciplinary action be taken against you under the said rules;
(b) have decided that it is not necessary to have an inquiry conducted through an inquiry officer or inquiry committee.
7. ' I, therefore, inform you through this notice that on the above grounds it is proposed to take disciplinary action against you under Sind Civil Servants (E & D) Rules 1973 and you are accordingly called upon to show cause within fourteen days why major penalty of dismissal from service should not be imposed upon you.
8. ' The details of misconduct are as under:-
(i) You are in the habit of violating prescribed channels of correspondence;
(ii) It is clearly written in your appointment order and according to the terms and conditions of the same, you are required to serve at any place Govt. Deems fit. You have disobeyed Government orders transferring you from one post to the other.
(iii) You have not performed various duties assigned to you from time to time.
(iv) You are absent from place of your duty in Khairpur since 3-3-1985.
9. ' By virtue of the above you are guilty of gross misconduct under the Government Servants Conduct Rules as well as Sind Govt. Servants E & D Rules 1974.
10. ' Your explanation should reach the undersigned within 14 days of the receipt of this notice failing which it will be presumed that you have nothing to say in your defence and it will be decided ex parte accordingly.
11. ' You may also indicate if you wish to be heard in person."
12. ' We have perused the explanation submitted by the appellant on 13-7-1987 to the above notice.
13. The allegations mentioned at S.No,(i) and (iii) of the show-cause notice are, not only vague but are also unsupported by any specific material. However, the picture that emerges out from reading of the allegations given at S.No,(ii) and (iv) of the said notice in the light of the explanation furnished by the appellant clearly indicates that the appellant disobeyed the order of his transfer from the Orangi Hospital Karachi to the Civil Hospital Khairpur. In this connection we may refer to the assertions made in the written statement under caption Brief History" at page 2 underlined. The said assertions are reproduced as under: "He was again transferred from Shaikh Khalifa Bin Hamad Al-Thani Sind Government Hospital, Orangi Town, Karachi to Khairpur on 30-3-1985 (copy enclosed). He failed and did not resume his duty at Khairpur, he submitted applications to various authority (authorities) without adopting proper channel/decorum/rules."
14. ' A copy of the notification regarding appellant's transfer placed on record, supports the above assertions inasmuch as that he was transferred on 30th March, 1985 from Orangi Hospital to Civil Hospital, Khairpur. Even the appellant himself has not denied his transfer from Orangi Hospital to the Hospital at Khairpur. While replying to the allegation at S.No,(ii) of the Show-cause Notice, he has stated in his explanation as under: "(a) I am Public Service Commission selected Doctor on Karachi merit, also got admission in M.B.,B.S. On Karachi merit as Ist Divisioner and want just an M.O. Post in Karachi according to the merit and Domicile which is also according to service clause 4, application by law of natural justice of Supreme Court and also Health Secretary Notification No,S.O.II (H) 16-157/83, dated 18-8-1983 for my posting at Karachi.
(b) While hundreds of Doctors including Ad hoc appointment Domicile of Khairpur/Interior also got admission as IIIrd on Khairpur/Rural reserved seats also executing 5 years rural service bond, but are posted as Registrar in Teaching (Civil) Hospital of Karachi, against Service Clause 4.
(c) I have no extra qualification/experience which is in the interest of Khairpur's people while I am only male member of my family including ailing mother, who needs round the clock my attention (JPMC's M.C. Countersigned by Civil Surgeon Karachi).
15. ' The appellant's above outbursts expressed in weak English clearly reflect, his anger and resentment over his transfer to the Interior of Sind (Khairpur). His grievance appears to be that third Divisioners domiciled in the Interior of Sind who are only ad hoc appointees and have executed 5 years' bond (perhaps) for serving in the Interior of Sind are preferred for posting as Registrar in the Teaching Hospital of Karachi (Civil Hospital) and the doctor of appellant's caliber who was 1st Divisionary from Karachi and got admission on merit and was also selectee of the Public Service Commission is pushed out of Karachi and is posted in the Interior. Thus the appellant admits his posting at Khairpur though it turned out to be to his great disliking. Although it is none of our business to interfere with the power of transfer vested in the concerned authority, we would like to make some observations in this regard. All Civil servants in Grade 17 and above arc appointed on provincial basis and as such they are liable to transfer throughout the Province. Furthermore there are restrictions on posting of such Civil Servants in their home districts. Despite the above legal position, the transferring authorities should not overlook the humanitarian grounds while making transfers and postings. As far as possible the transferees should be given convenient postings. The transfers should not he made the basis for punishment. If any Civil Servant is found undesirable at one place, his transfer to another place particularly to his inconvenience would not bring about any improvement in him but it would rather harden him further. The proper course to deal with such Civil Servants would be to take appropriate disciplinary action against them.
16. ' The next question for our decision is whether the appellant disobeyed the order of his transfer to Khairpur. As stated above the stand taken in the written statement is that he failed to resume his duties at Khairpur. The learned counsel for the appellant however submitted that the appellant was never served with the order of his transfer but on 8-4-1985 he was verbally told that he had been removed from service. The same plea has been reiterated in the memo of appeal. The relevant portion of the memo of appeal at page 3 is reproduced as under: " the appellant worked in various capacities in that hospital (Orangi Hospital) till 8-4-1985 when he was verbally asked by the respondent No,2(MS of the Hospital) that he has been removed from service. On enquiry from respondent No,2 as to how and when the appellant had been removed from service the respondent No,2 could not give satisfactory reply. On 9-4-1985 when the appellant came for duty in the hospital, he was not allowed to work and the respondent No,2 called Muster Roll where he marked against the name of the appellant as "Transferred and Relieved" no such written transfer or relieving order was given to the appellant though demanded to enable him to join at the new place of his alleged transfer."
17. ' The above statement apart from being contradictory is prima facie unbelievable. The contradiction appearing in the statement is that on 8-4-1985 the appellant was informed that he had been removed from service but on the following day (9-4-1985) the Medical Superintendent noted in the Muster Roll that the appellant was transferred and relieved. The statement is unbelievable because it does not appeal to common sense that the Medical Superintendent who was holding such a responsible post would be so childish as to first indulge in making contradictory statements to the appellant and would ultimately withhold the transfer order from him. Obviously he had no motive for suppressing the real and factual position. Moreover the reply that appellant has given in the explanation to the show-cause notice is inconsistent with the plea taken by him in his memo of appeal and arguments made by his counsel.
18. ' Apart from what the appellant stated in reply to allegation No,(ii) contained in the show-cause notice as reproduced above, he has given his reply to allegation (iv) contained in the said notice in the following words: "I am not absent from place of my duty since 3-3-1985. I was working as M.O. (Peads. & Female) and C.M.O. Of Orangi Hospital on 3-3-1985 to 8-4-1985 (as Duty Roster and Attendance Register will prove) and on 8-4-1985 Dr. Ehsan relieved me verbally from my duty. And from 9-4-1985 through proper channel of M.S. I am reporting for duty to D.H.S.S. And Secretary in writing every month as 32 representations are given but no response. No written relieving order no written posting order is never received."
19. ' The above explanation furnished in reply to show-cause notice does not indicate that appellant was first told verbally that he had been removed from service as the appellant's counsel put forward in course of his arguments and as has also been mentioned in the memo of appeal. On the contrary it shows that he was relieved of his duties verbally on 8-4-1985 and through proper channel of M.S. On the following day i,e, 9-4-1985. Since he has admitted having been relieved of his duties through proper channel, it cannot be believed that no written order was delivered to him.
20. The transfer order dated 30th March, 1985 clearly shows that amongst others a copy thereof was endorsed to all transferees separately. May be a copy meant for the appellant was lost in transit.
21. Even then it is incredible that the appellant would have readily agreed to be relieved without seeing the order. We are therefore convinced that if the appellant had not received the own copy of the transfer order he must have seen the copy endorsed to the Medical Superintendent of the Orangi Hospital and before being relieved I from that hospital.
22. ' As mentioned in the show-cause notice appellant had already absented from duty from 3-3-1985.
23. This has been vehemently denied by the appellant who has stated in the explanation reproduced above that he was relieved through proper channel on 9-4-1985. We are of the view that the date 3-3-1985 has been mistaken for 30-3-1985 which is actually the date of the transfer order and not the date from which the appellant has remained absent. Even if we accept 9-4-1985 as date of appellant's relief from the Orangi hospital, question arises whether he ever went to resume his duties at his new place of posting. The reply is obviously in the negative. This is clear even from appellant's own admission made in his explanation reproduced above. He has stated that after being relieved from Orangi hospital he was reporting for duty to DHSS and Secretary in writing every month. Obviously he refers to the representations that he had been making to the above two authorities almost every month in ditto language. Accordingly no further proof is needed on the question of the appellant's disobedience of the transfer order.
24. It was argued on behalf of the appellant that the representation made by the appellant should have been responded by the concerned authorities before he was expected to have joined at his new place of posting. We are sorry we cannot agree with this argument. The authorities concerned were not bound by any law or rules to have given reply to each and every representation made by the appellant. If the appellant regarded his transfer order as adverse to him, he should have challenged it in accordance with the prescribed procedure. He was not supposed to make representations one after the other. However our attention has been drawn to the letter No,S.O.
25. II(H)N-10/83 dated 29th April, 1986 issued by Health Department whereby the appellant was sounded a warning that he should refrain from making false allegations against his superiors in his representations with regard to his transfer outside Karachi.
26. ' It was further contended by the learned counsel for the appellant that although appellant was allegedly absent from the date of his relief i,e, 9-4-1985, yet the show-cause notice was issued to him after more than two years, on 9th July, 1987 and during all this period the fate of the appellant was hanging in the balance. If the appellant after relinquishing his charge at one place did not take over at another place but instead kept writing for all this time until show-cause notice was served on him, our first impression is that he had to thank himself for the delay. Giving it more thought we are inclined to feel that delay was to the advantage of the appellant and not against him because if he so wished he could have availed the time gap and made rectification of his mistake of not joining at the new place of posting, before formal action was initiated against him. If the blame was to be laid at the doorstep of the departmental authorities, we would consider it as one more case of red tapizm prevalent in the Government Offices. In any case the accused official could not be absolved from the liability on the ground of said delay.
27. The upshot of the above discussion is that the charge of disobedience of the transfer order stands proved against the appellant. Accordingly he has been rightly removed from service. Our interference is uncalled for. The appeal is dismissed with no order as to costs.