' MIAN FAIZ KARIM (MEMBER).--The appellant Saeed Ahmad Qureshi, Deputy Director (Floods), has filed this appeal under section of the Punjab Service Tribunals Act, 1974 against the order dated 16- 9-1985 passed by the Chief Secretary, Government of Punjab, passed on departmental appeal while confirming the order dated 18-7-1985 of the Chief Engineer, Irrigation Department. The appellant has impleaded the Province of Punjab through Chief Secretary, the Chief Secretary, the Chief Engineer and the Secretary, Irrigation as respondents.
2. Through this appeal the appellant Saeed Ahmad Qureshi has prayed that the impugned orders dated 18-7-1985 regarding the infliction of the penalty of `Censure' and the impugned orders dated 16-9-1985 regarding confirmation of the penalty may be set aside.
3. Brief facts of the case are that during the posting of the appellant as Deputy Director/Executive Engineer (Floods) the appellant was charge-sheeted as follows:-
(1) That he submitted his representation direct to the Governor/Minister for Irrigation and Power Department and the Chief Secretary, Punjab, regarding re-employment of M/s. Jamil Asghar and Mohy-ud-Din Khan in Irrigation and Power Department on contract basis irrespective of the fact that there was no such issue under action.
(2) That he submitted his representation direct to the Governor/Minister for Irrigation and Power Department and Chief Secretary, Punjab against holding the charge of Project Director, Small Dams Organization by Mr. Qamar Zaman Khan, Executive Engineer.
(3)That he submitted his representation against matters which were still under consideration of the Government and no formal orders thereon had been issued.
(4) That the Minister for Irrigation and Power Department took a serious view of his this act and desired to take disciplinary action against him as submission of representation, appeal or complaint direct to the higher authorities is not allowed and is a serious act of 'misconduct' under the instructions issued by the SGA&I Department vide circular letter No, SORI(S&GAD) 1-19/68, dated 22-1-1973, which are as under:-- "Submission of representations appeals or complaints directly to the Chief Minister and other Ministers without observance of the prescribed channel is also a serious act of 'misconduct'. If any Government servant feels aggrieved or unhappy about the posting, transfer or other service matters and wishes to represent to the Chief Minister, he must submit his representation through normal channel of correspondence. Government will be constrained to take disciplinary action against those and submit their representations direct to the Chief Minister/Governor/Ministers."
' The appellant pleaded not guilty. The departmental inquiry was got held and the Inquiry Officer held the appellant guilty for the charges (allegations) Nos.1 and 3. The Chief Engineer, while exercising the powers of Authorized Officer after issuing of show-cause notice and personal hearing of the appellant inflicted the penalty of 'censure' vide orders dated 18-7-1985. Aggrieved by this order the appellant filed departmental appeal which was dismissed vide communication dated 14-9-1985. Hence this appeal.
4. At the time of the arguments the learned counsel for the appellant contended that the appellant had actually submitted representation through the proper channel and only advance copy was sent to the higher authority. The learned counsel for the appellant added that according to the instructions of the Government the direct representation cannot be made but there is no such instruction regarding dispatch of advance copy. The learned counsel for the appellant further stated that the questioned document was not complaint against action of any officer rather it was the expression of the grievance for the reemployment of retired persons prejudicial to the interest of the incumbents who were yet in the service. The learned counsel for the appellant concluded his arguments while stating that the disciplinary proceedings and inquiry was conducted in a very hasty manner with a result that the appellant had no sufficient opportunity to contest the same.
5. The learned District Attorney opposed the appeal and stated that the charges Nos. 1 and 3 were proved against the appellant. The learned District Attorney further stated that the appellant was unnecessarily making excuse to show that he could send advance copy of the representation and was precluded only for making direct representation. The learned District Attorney added that the appellant has not been able to prove during the inquiry proceedings that he submitted representation through proper channel and submitted only advance copy to the higher authorities.
The learned District Attorney stressed that the appellant could not even send advance copies to the higher authorities for the argument sake without conceding the same. The learned District Attorney closed the arguments while stating that in the instant case the appellant after being served with charge-sheet and statement of allegations was subjected to regular inquiry and thus he could not say that he was not given chance of contesting the same.
6. We have carefully considered the points raised by learned counsel for the appellant as well as learned District Attorney for the respondents. We have also consulted the relevant record including the departmental written objections.
7. Before we determine the points raised during the arguments it may be stated that subject to the discretion of the competent authority a civil servant has to be dealt with in the following manner:--
(i) Polite advice and guidance followed by polite warning for performance of his duties in the proper manner and according to rules including Civil Servants Conduct Rules and Instructions of the Government.
(ii) Assessm ent of the performance of the civil servant in the Annual Confidential Reports including by recording adverse remarks if they are communicated and justified.
(iii) After adoption of the corrective measures stated above if they prove ineffective or otherwise if any situation or nature of case so demands then to proceed for the punitive measures under the Punjab Civil Servants (E&D) Rules, 1975, the punishment of which is from 'Censure' to the 'Dismissal from the service'.
(iv) Registration of a criminal case like that of cheating and forgery under sections 420, P.P.C. And 467, 468 and 471, P.P.C. Action under section 409, P.P.C. For the alleged commission of embezzlement (Criminal Breach of Trust). Action for corruption under section 5 of the Prevention of Corruption Act, 1947 read with 161, P.P.C. However, if any criminal case is registered then the option of the competent authority is either to conduct a parallel regular inquiry after the charge-sheet or to await the decision of the Court and in case the accused official is convicted then to proceed under Rule 9 of the Punjab Civil Servants (E & D) Rules.
8. In the instant case it may be stated that not only through regular inquiry the alleged misconduct of addressing a direct representation is established against the appellant but more or less the allegation is also conceded by him as contained in para. 8(c) of the appeal which is reproduced below: "That there appears to be no bar against making the representation of the type which the appellant had made in this case. It was not a complaint regarding any action of an officer nor was it an appeal under the ordinary rules, nor can it be termed a representation against any serving employee. The grievance in the case was that persons who had retired were proposed to be re- employed to the prejudice of existing incumbents. Such a proposal could only be considered and a policy decision taken only by the Government itself and no subordinate official was competent to deal with this matter."
' Assuming for argument sake without conceding that according to the appellant no other authority than the Minister to whom the representation was addressed was competent but the fact remains that the appellant violated the chain of the command known as 'Proper Channel' in the ordinary parlance by addressing the representation direct to the Minister. Incidentally the questioned representation was not an advance copy which is exempted vide Letter No, SOXII(S&GAD)2-41/69, dated 2-7-1969 rather the questioned representation hits the Circular Letter No, SORI(S&GAD) 1-19/63 (XIII), dated 22-1-1973 which reads as under:- "I am to clarify that submission of representations, appeals or complaints directly to the Chief Minister and other Ministers, without observance of the prescribed channels is also a serious act of misconduct. The rules on the subject and the instructions issued by Government should, therefore, be strictly complied with.
' Otherwise also communicated vide No, SORI(S&GAD)-1-19/68(13), dated 23-5-1975.
9. Now the point for determination is whether the disciplinary proceedings against the appellant were justified and also whether the punishment inflicted on the appellant is also justified? In this regard it may be stated that it has already been observed that the discretion is always of the competent authority. It is understood that a competent authority may take disciplinary action for the commission of the alleged misconduct even if it may be ordinary and harmless and on the other hand may not even take departmental or criminal action for the alleged commission of fraud, forgeries and corruption. However, no matter that the competent authority has unfettered power but the requirement of the justice demands that the discretion should be judicially exercised. In the instant case whereas legally speaking the appellant did commit the alleged misconduct and the competent authority was also competent to take action against him and the punishment of 'Censure' is also mildest but it would have been desirable if routine polite warning should have been issued against the appellant or if the need be it may have also been recorded in the A.C.R. This being the common and contagious fault of the civil servant and the first lapse of the appellant a routine warning would have been enough or at the most it could be recorded in his A.C.R. Of the year concerned. Since the competent authority exercising its powers has taken the action against the appellant and issued the impugned order now it is to be decided whether we can set aside the order? In this respect it may be observed that the desirability of any action is another matter and disposal of the appeal in the given situation is quite different. We are of the considered opinion that we are not in a position to set aside the impugned order on any ground of law or facts. We are also not in a position to reduce the penalty so inflicted because as expressed before the penalty of 'Censure' is the lowest penalty.
10. Hence we find no ground to interfere with the impugned orders and accordingly the appeal is dismissed. However, in the light of the observations made above we recommend to the competent authority that they need not take any serious notice while considering any promotion etc. Of the appellant. Since it was his first lapse, therefore, it may be treated to have served its purpose and may not come as an obstacle into the way of the appellant unless he opens any fresh account or for that matter any other adverse entries or punishments do not fall into the way of the appellant.
' No order for the cost.