1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant's case, as disclosed in his memo of appeal is that while he was posted as Teacher in Ibrahim Ali Bhai Government Boys Secondary School, Orangi No, 9, Karachi, his salary was stopped from 1-1-1987 and remained unpaid until 18-3-1987. He made several representations to the concerned authorities but with no result. Ultimately he received a letter of District Education Officer, District West, Male, Karachi dated 8-2-1988 informing him as under:-- "It is for your information that you remained absent from your duty w,e,f, 25-1-1987 to 15-3-1987 as reported by the Headmaster G.B.S.S. Sector No, 9, Orangi, therefore the question for payment of salary of the above quoted months does not arise."
2. ' The appellant preferred appeal against the aforesaid letter to the Director of School Education, Karachi Region, Karachi on 15-3-1988 and after waiting for the requisite statutory period of 90 days he has filed present appeal before this Tribunal, praying for setting aside the impugned order (the aforesaid letter) dated 8-2-1988.
3. ' In reply to his appeal, written statement has been filed by the Assistant Advocate-General on behalf of the respondents. In the said written statement under caption "Brief Facts", it is stated as under: "That the above named appellant, was appointed as J.S.T. On 14-3-1978 and joined his duty in G.B.S.S. Dehli Karimabad, Karachi. During the posting in G.B.S.S. Sector No, 9, Orangi, he was declared absent from Government duty w,e,f, 25-1-1988 to 16-3-1988. His salary was stopped by the A.-G. Sind, Karachi, as reported by respondents Nos. 5 and 6 (M.M./D.O.O. Concerned). The incumbent/appellant has filed an appeal in the Sind Service Tribunal against the order of respondents bearing letter No, DEC/WEST/Male/1983-84/88, dated 8-2-1988."
4. ' We heard the appellant in person and also the arguments of Mr. Imdad Hussain Kazi, Government counsel who was assisted by Departmental Representative, Hamid Ali Qureshi, Assistant Director, Litigation, School Education. We also went through the documents available on record.
5. ' On scrutiny of both the memo. Of appeal and the written statement it appears that there is no dispute between the parties over the stoppage of appellant's salary for certain period of time.
6. However, according to the appellant's own version the stoppage lasted from 1-1-1987 to 18-3-1987 whereas the respondent's plea as disclosed in the impugned letter is that the salary remained unpaid to the appellant from 25-1-1987 to 15-3-1987. Obviously the disputed period of non- payment of the appellant's salary as given in the written statement from 25-1-1988 to 16-3-1988 is through inadvertence. Even if it is assumed that the appellant remained absent from duty for the disputed period, the question would arise if his salary could straightaway be stopped without affording him the opportunity of showing cause. After all by stoppage of his salary, he would suffer a sort of punishment by way of facing financial difficulties. Could such punishment be inflicted on him ex parte without giving him proper show-cause notice? Of course the appellant's unauthorised absence from duty, if admitted by the appellant or duly proved, was liable to be punished in accordance with the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred as the said rules. However, it was frankly conceded by the learned counsel for the Government that no action was taken against the appellant under the said rules. Nevertheless, we came across a letter, dated 17-2-1987 written to the appellant by one S. Ghulam Yahya. E.O. It reads as under:- "M r. Khalid Hasan, J.S.T.
7. ' Ebrahim Ali Bhai G.B.S.S. No, 9, Orangi, Karachi.
8. ' You are hereby informed that the students of class X-B have informed the Headmaster in writing that you, as a class teacher of the said class,have not been marking the attendance of the said class in the attendance register since last fortnight. You are, therefore, directed to submit your explanation in respect to the following points, as I have been appointed to conduct an enquiry in this respect. Your explanation must reach the undersigned before you leave the school today:
(1) Please explain the circumstances in which you have not been present in the school premises in the first period since last fortnight.
(2) Why did you fail to mark the attendance of the class in the attendance register.
9. (3)Your attendance register is unlawfully in your present custody and is not open to inspection of the H.M. The same is not kept in the H.M. Room when the school is over. Please explain the reasons for not leaving the register in the H.M. Room.
(4) You are supposed to close the last month attendance register duly checked and countersigned by the H.M. You did not close the last month register in time on the last working day nor got it signed by the H.M. Please explain reason.
(5) You leave the school before time without taking permission. Why?
10. Karachi dated 17-2-1987.
11. Sd/- S. Ghulam Yahya, Enquiry Officer."
12. ' It would appear that the appellant in his reply on the same date denied the allegations contained in the above letter. Incidently the writer of the letter Mr. S. Ghulam Yahya was present in Court as he had come to assist the Government counsel. He informed us that he had held the enquiry against the appellant and he had also submitted his report about the enquiry. However, he was unable to produce any documents of the enquiry including the enquiry report nor pointed out as to whom he had submitted the enquiry report. There is no mention in the written statement that the above gentleman was ever appointed as Enquiry Officer or that he had submitted any enquiry report. Nor a copy of any such enquiry report was enclosed with the written statement. On the contrary the written statement is ominously silent as to holding of such enquiry. Even the learned Government counsel could not show us any paper of the enquiry or the enquiry report.
13. ' Even if we believed Mr. S. Yahya that he was appointed as Enquiry Officer and he had held the necessary enquiry against the appellant, still the question would arise as to what was the basis of his enquiry. Apart from the letter of the said Enquiry Officer reproduced above neither any show cause notice nor charge-sheet was served on the appellant. May be the argument was raised that the Enquiry Officer's said letter be considered as charge-sheet. Such argument would carry no force. The said E.O. Had obviously no power to act both as Authorised Officer and Enquiry Officer. As required by rule 5 of the said rules it is the power of Authorised Officer to issue show-cause notice or, as the case may be, charge-sheet to the accused civil servant.
14. ' From the discussion made in course of the arguments we were convinced that the procedure laid down in the said rules was not followed in dealing with the appellant's alleged unauthorised absence from his duties. As such the appellant was not liable to punishment in any form or shape.
15. Moreover stoppage of salary is not covered by the prescribed penalties under rule 4 of the said rules. It was only after the charge of unauthorised absence for the disputed period was proved against the appellant, the competent authority had to decide not only the penalty to be awarded to him but also about the payment of salary for the disputed period. Even if the appellant was placed under suspension, pending the finalization of the proceedings under the said rules., he was entitled to draw the prescribed portion of his salary during the period of his suspension.
16. ' The upshot of the above discussion is that the departmental authority had no power to stop the payment of salary to the appellant until he was properly dealt with in accordance with the said rules. Accordingly the appeal is allowed with no order as to costs. However, it would be open to the departmental authorities to proceed against the appellant afresh, for his alleged unauthorized absence from duty, in accordance with the procedure contained in the said rules.