JUDGMENTJUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN) The appellant Mohammad Saleh was working as a Driver in the office of Mukhtiarkar, Faiz Ganj, when a major penalty of compulsory retirement was inflicted on him vide order* dated 19th December, 1988 of the Deputy Commissioner, Khairpur. He challenged this order in departmental appeal filed before the Commssioner, Sukur but the same was rejected by Commissioner's order dated 17th August, 1989.
Thereafter he filed the present appeal before this Tribunal on 2.9.1989.
2. The facts leading to the appellant's compulsory retirement are briefly summarised as follows. On receipt of the report made by the Mukhtiarkar, Faiz Ganj, attributing the acts of omission and commission to the appellant, the Additional Deputy Commissioner, Khairpur initiated departmental proceedings by serving a charge-sheet dated 17.7.1988 on him. The appellant submitted his reply to the charge-sheet making complete denial of the allegations. He averred that he had been victim of the bias harboured bv the Deputy Commissioner (Mr.Zafar Sale) against him. However, the Assistant Commissioner, Mirwah Mr. Abdul Razzaq was appointed as Enquiry Officer to probe into allegations made against the appellant. The said Enquiry Officer submitted his detailed report on 10.11.1088 to ]he Deputy Commissioner. On the basis of his report the appellant was given show- cause notice dated 12.11.1988 requiring him to appear personally before the Deputy Commissioner and show cause why major' penalty such as dismissal etc. Should not be imposed upon him.
Although the appellant did not submit the reply to the show-cause notice, he was heard personally on 15.11.1988. Agreeing with the findings of the Enquiry Officer, the Deputy Commissioner (Authority) found the appellant guilty and awarded him the major punishment of compulsory retirement.
Hence this appeal as stated above.
3. We heard the arguments of the learned counsel for the parties and also carefully went through the documents relevant for disposal of the appeal.
To begin with, we may reproduce the charge-sheet dated 17.7.1988 served on the appellant as undcr:-"I, Ghulam Mustafa G. Jokhio, Addl. Deputy Commissioner Khairpur, Authorized Officer,-do hereby charge you Muhammad Saleh Driver of Mukhtiarkar Faizganj (now under suspension) as undcr:-T. It is reported by the Mukhtiarkar Faizganj that you have proved yourself to be negligent in performance of your duties, mischeicvous and insolent.
2. That you always come late in office of Taluka Mukhtiarkar Faizganj without any permission.3. That you were directed by the Mukhtiarkar to work in office but the office has informed him that your attitude towards public is worst. You have no sense of dealing with the visitors or the applicants.
You extort money from visitors by foul means and by this way the Mukhtiarkar will lose his reputation if your foul practices arc further allowed.
4. That you remained absent yourself at your sweet will without permission or leave. You have remained absent on 5.7.88, 13.7.88, 9.7.88 and 14.7.88 without any intimation.
By doing so, you have rendered yourself guilty or misconduct under provision 3(b) of Sindh Civil Servants (E&D) Rules 1973.
You arc therefore, called upon to submit your explanation within 14 days, as to why disciplinary action should not be taken against you which may amount infliction of major/minor penally. Your reply should reach this office within the stipulated period. In case of failure, ex parte decision will be taken in the matter.
You should also state in writing whether you wish to be heard in person.
The statement of allegations is enclosed".
As disclosed in the report of the Enquiry Officer, the charges at serial No: 1, 2 and 4 hereinabove were proved against the appellant. Accordingly we would like to confine ourselves to the appraisal of the material available on record only with regard to the said three charges.
4. The first charge which is said to have been proved against the appellant is that he was negligent in performance of his duties, mischcivous and insolent. It would appear that the reporting officer namely Mukhtiarkar, Gaizz Faizganj was examined in course of the enquiry. Obviously it was the said officer who could throw light on the above charge. We have perused his statement carefully. It seems he stuck to his report wherein he had inter alia levelled the charge under consideration against the appellant. Although he was cross-examined by the appellant, yet nothing was brought out from the witness to show that his statement was untrue or that he was inspired by any ill-will or such other consideration. In feet no question was put to Mukhtiarkar that he had made false report or had made false statement at the instance of the then Deputy Commissioner (Mr.Zafar Sale). It is true that the thrust of the learned counsel for the appellant's argument was that the appellant lost his job owing to the bias and animosity of Mr. Zafar Sale. In support of his contention he also referred us to the earlier disciplinary action taken against the appellant in 1983 at the instance of same Mr. Zafar Salccn when he was Assistant Commissioner, ln this connection we have also been shown the order of Deputy Commissioner, Khairpur, the predecessor of Mr.Zafar Sale whereby the statement of the appellant was accepted as satisfactory and the charge-sheet based on Mr.Zafar Saleem's report was withdrawn. In other words he was exonerated of the allegations made by Mr.Zafar Sale in the earlier departmental proceedings. May be his exoneration was on merits of the case. We can not persuade ourselves to believe that because of the said earlier departmental proceedings taken against the appellant and ended in his favour, the said Mr.Zafar Sale had harboured un-ending grudge against the appellant so that when he returned to the same District as Deputy Commissioner he would stoop so low that he would require his subordinate namely the Mukhtiarkar to make a false report against the appellant. Looking to the position of the appellant who was merely a Driver it seems improbable that appellant's involvement in the present case was due to Mr.Zafar Saleem's enmity. It is also difficult to believe that not only the reporting officer namely the Mukhtiarkar but also the Enquiry Officer Mr.Abdul Razzak Assistant Commissioner, and authorized officer, Additional Deputy Commissioner would all join hands and indulge in falsehoods just to please the Deptv Commissioner by eliminating the appellant from service. Moreover the appellant was given opportunity not only to cross-examine the Mukhtiarkar but also examine any witness of his own. But he did not put any question relating to his enmity with Mr.Zafar Sale to the Mukhtiarkar nor examined the Enquiry Officer and Authorized Officer for the purpose of eliiciting material from them having bearing on the alleged prejudice that the Deputy Commissioner had with him. To us it is simply unbelievable that all the above officers would enter into conspiracy on asking of Mr.Zafar Sale, just to finish the appellant's career, the menial job of Driver.
5. The next charge proved against the appellant was that he was allegedly coming late in the office. In this connection the enquiry officer has referred in his report to the show-cause notice dated 13.10.1988 served on the appellant. Obviously the said notice was subsequent to the charge- sheet and as such it can not be accepted as proof of the above charge. Nonetheless we see no reason to disbelieve the statement pf the Mukhtiarkar to the effect that appellant was habitually late comer. After all the Mukhtiarkar was also a responsible person and he had no reasons to speak falsehood against the appellant. Even otherwise the appellant did not cross examine the Mukhtiarkar on the said charge. We therefore agree with the findings of the enquiry officer that the charge of the late coming was also proved against the appellant.
6 The fourth charge which is said to have been proved against the appellant is his unauthorized absence on the dates specified in the charge- sheet. On this charge the enquiry officer has recorded his finding as under: "As regards this allegation is concerned the reporting officer has proved it beyond any doubt and has shown the attendance register in which the absence is marked............................ The accusedofficial was allowed to produce any witness in his favour but he failed to do so. More over he was also allowed to crossexamine 1 the reporting officer as well as to contradict the allegations but miserably failed to give any correct proof of his remaining absent on the said dates. Accordingly this allegation also stands proved without any doubt".
While agreeing with the enquiry officer's above finding, we would like to observe that when the question of unauthorized absence is involved, attendance register is invariably accepted as the best evidence. Accordingly the enquiry officer has rightly based his findings on the attendance register wherein, according to him, the appellant was found to have been marked absent on the dales specified in the charge-sheet. In an attempt to rebut this charge the learned counsel for the appellant invited our attention to the photo copy of the letter dated 28.4.1988 purported to have been written by the Mukhtiarkar, Faizganj to the Deputy Commissioner Khairpur. By this letter the appellant was shown to have been relieved of his duties from the office of the said Mukhtiarkar with further direction to report for duty to the Deputy Commissioner, Khairpur. Relying on the above letter the learned counsel for the appellant argued that since the appellant had been shifted from the office of Mukhtiarkar, Faizganj on 28.4.1988 the question of his having remained absent on the dales in the month of July, of the same year in the Miikhtiarkar's office would not arise. He therefore submitted that the fourth charge of appellant's unauthorized absence from the office of the Mukhtiarkar Faizganj was not proved. '7. We have considered the argument of the learned counsel for the appellant which was based on the later dated 28-4-1988 referred to above but some-how we have not been impressed by the same. First of all the letter relied upon by the learned counsel does not find mention anywhere through out the memo of appeal. Since the letter provided him best defence it could not be believed that the appellant forgot to mention it in memo of appeal or take plea based on the said letter. He has also not put any question to the Mukhtiarkar with regard to the letter or the fact of his having been relieved from the office of the said Mukhtiarkar on the said date in course of his cross-examination. Moreover the letter was not produced alongwith memo of appeal but the learned counsel for the appellant sprang a surprise by producing it in course of his arguments. As such the authenticity of the letter could not be properly ascertained.
Accordingly the letter in question is after thought. It could not be accepted as conclusive proof of the fact that appellant was not working in the office of Mukhtiarkar Faizganj on the dates specified in the charge. May be the letter was not implemented. The possibility of reposting of the appellant in the office of the Mukhtiarkar subsequent to issuing of the said letter could also not be rultd out. It was also possible that the letter was subsequently withdrawn and cancelled. For these reasons we can not hold that such letter was sufficient to rebut the charge of the appellant's absence on the dates specified in the charge sheet.
8. In view of the above discussion the appellant has been rightly punished. No interference by this Tribunal is therefore called for. While upholding the impugned order the appeal is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 23rd day of November, 1989 at Karachi.