JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).- This is a second round of the litigation which has brought the appellant, Jamshed Hassan, to this Tribunal. His first Appeal No: 6 of 1988 was disposed by the consent judgment of this Tribunal, dated 10th January, 1989 whereby the case was remanded back to the Authorized Officer concerned with direction to frame a proper charge-sheet and serve the same alongwith statement of allegations on the appellant. He was further required to have the enquiry held by the Enquiry Officer to be appointed by him and on receipt of the Enquiry Officer's report take further action in accordance with the Sir Civil Servants (Efficiency and Discipline) Rules 1973.
2. In compliance with the aforesaid judgment of the Service Tribunal, the appellant was served with a fresh charge-sheet and statement of allegations and Dr. Athar Hussain was appointed as Enquiry Officer. After holding the necessary enquiry, the Enquiry Officer submitted his report. Thereupon the appellant was given final Show-cause-notice dated 15th April, 1989 enclosing a copy of the enquiry report. He was required to furnish his explanation within 14 days of the receipt of the notice. As his explanation was not received within the stipulated period, further notice was issued to him through newspaper which was published in the Daily Jang dated 19.5.1989 whereby he was given seven days more the for not only submitting his belated explanation but also for his personal hearing. In response to the notice through the press the appellant submitted his bald reply saying that he had already submitted his detailed reply through post, adding further that in case the same was not forthcoming a copy of his reply dated 23.4.1989 he sent for from the Deputy Director, Health Services. In case the said authority had also riot received his registered letter, he should be informed accordingly. However after giving the appellant personal hearing the police Surgeon, as Authority, passed the impugned order dated 10th June, 1989, dismissing the appellant from service.
He challenged his dismissal in departmental appeal dated 17.6.1989 which some how remained undisposed at the expiry of the statutory period of 90 days. Therefore the appellant filed the appeal before this Tribunal on 30.10.1989.
The appellant being un-represented, we heard his person arguments elaborately. We also heard the arguments of the learned Government counsel. With the help of the parties we also went through the relevant documents.
The statement of allegations accompanying the charge-sheet dated 30th Jan. 1989 which was served on the appellant carried many as nine allegations.
3. Dr. Athar Hussain who held the detailed enquiry submit his report on 8th April 1989. As per conclusion reached by him in the report, the allegations at S. No.1, 2 and 6 were not established.
Solar allegations at S. No: 7 was concerned, the enquiry report shows that it was proceeded with in absence of the appellant who failed to attend the enquiry proceedings after 12th March, 1989 despite repeated notices issued to him. However the remaining allegations were held by the Enquiry Officer as proved.
4. We may first consider the findings of the Enquiry Officer with regard to those allegations which according to his report were established. They are specified at S. Nos: 3,4,5, 8 and in the statement of allegations. As for allegation No: 3, we made hereunder reproduce both the letter No: PSK/1024/25, dated 22.4.1989 written to the appellant and his reply thereto so as to appreciate how far the language used by the appellant in his reply was objectionable. The letter written by the Police Surgeon to the appellant is as under: "To, Mr. Jamshed Ahmed, Nursing Attendent, Police Surgeon Office, Civil Hospital, Karachi.
SUBJECT:- REQUEST FOR 65 DAYS EARNED LEAVE. Grant of the.
Reference your application dated the 15th April, 1987, duly endorsed by the Assistant Police Surgcion, Jinnah Post Graduate Medical Centre, Medicolegal Section Karachi vide his endorsement No: Nil, dated the 16th April 1987 on the subject noted above: You were already informed vide this office letter No: PSK/- 905/06, dated the 8th April, 1987 that your leave cannot be sanctioned due to exigencies of service and you have resubmitted another application for grant of long leave.
You are directed to explain the reasons within 3 days as to why disciplinary action should not be taken against you under Efficiency and Disciplinary Rules, 1989.
Sd/- (DR. HUSSAIN BUS MEMON)
POLICE SURGEON KARACHI."
The appellant's reply to the above letter reads as under :- 'The Police Surgeon, Karachi.
Sir, I have the honour to refer to your officer letter No: PSK ( )/1024/25, dated the 22nd April, 1987 and to state that due to emergency, at my notice place I have been applying for leave as I have not availed the same since last 6 years. Moreover leave is a right of civil servant and as per Government rules a Government servant is entitled for long leave of 65 days and during his absence a substitute can be appointed in his leave vacancy for the above said period.
If my leave applied for is not correct in view of my senior officers I am sorry for the same.
I further requested that kindly excused me and I may be given leave applied for as the repairing of my house in raining season is necessary.
I shall be highly thankful to your honour and pray to Allah for your long life prosperity.
Your most obedient servant Sd/= Karachi dtd: 23.4.1987.
(JAMSHED HASSAN)
NURSING ATTENDENT."
5. On careful perusal of the above to documents, it appeal to us that all that the appellant has emphasized in earlier part of his reply is that leave is a right of a civil servant and as per Govt. Rules he is entitled to long leave for 65 days. We res nothing offensive in these words. Of course the earned leave is the Civil servant's right but it can not be availed automatically without obtaining proper sanction of the competent authority. Precisely for this reason that the appellant had made application for the same. On administrative grounds the leave which is considered as right can even be refused. This being the position, the appellant's further assertions: If may leave applied for is not correct in view of my senior officers, I am sorry for the same", were rather provocative which seem to have caused the annoyance to the authorities. We feel that the above language used by the appellant in expressing his sentiments was unbecoming of well behaved and disciplined civil servant. Accordingly we endorse the Enquiry Officer's finding on the said charge.
The allegation at S. No. 4 and 5, which are also held to have been established speak of the appellant's un-authorized absence from duty. In his reply to the charge-sheet the appellant has refuted both the allegations. As regards allegation No: 4 his explanation given in reply to the charge sheet is that after his application for leave was refused, he remained on his duty. However the Enquiry Officer while discussing this allegation in his report has observed as under: "4. On scrutining of record, it has been observed that defendant availed 3 days casual leave i.e. 25.4.1987 to 27.4.1987 without prior sanction (page 11) as such due to his un-authorized absence medicolegal work belonging to him was suffered. It is also proved from attendence register maintained in the office other Police Surgeon (page-12)."
Obviously the Enquiry Officer based his findings on the Attendence Register and other leave record.
So far the allegations No:5 is concerned, his reply to the charge sheet clearly shows, that he availed the leave without getting it sanctioned. The Enquiry Officer's observations are as under: "5. As per attendence register maintained by A.P.S, J.P.I (Page-13) the defendant was absent unauthorizedly w.e.f 1.3.1987 to 3.3.1987 and he neither submitted any application for grant of leave for before said period prior to absenting nor after absenting himself from duty as confirmed by the A.P.S, J.P.M.C. Dr. Khalil Ansari during cross examination."
6. It is not denied by the appellant that a copy of the Enquiry Report was received by him alongwith the final show-cause notice. Thus after he came to know from the report the basis of the Enquiry Officer's findings on the above to allegations the appellant was expected to furnish reasonable explanation in reply to the said findings. Instead he exhibited his callousness in as much as that even after receiving further notice through newspaper he did not care to submit his proper reply but contented himself by giving a bald answer referred to above. However in course of his oral arguments he informed us that in the Attendence Register, the figure 'L' was mentioned under the dates on which he was allegedly absent. If it was so, the appellant should have taken care to reproduce certified copies of the relevant entries of the Attendence Register in his defence, but no such evidence was laid before us. We have no reason to disbelieve the Enquiry Officer in this regard. Accordingly we hold the allegations No: 4 and 5 as proved.
On the allegation No:8 which the Enquiry Officer has he to have been established, his observations are as under: "8. On cross examination on 12.3.1989 from defendant on the charge of double employment he could not give a satisfactory reply and ignored the same to say that he will give reply in application which will be submitted by him latter on. On investigation from Executive Officer, Cantonment Board Malir it has been proved ................................. ........................................... That he was serving as dresser in Cantonment Board Malir since last 5 years (page-17) further more it has been proved that he was serving in Malir Cantonment Board as Dresser since 19.4.1983 (page-18) and dismissed from services w.e.f. 1.2.1989 vide dismissal order No: MLR/PF/JH/Dresser/89/285, dated 1.2.1989 (page 19) issued by Executive Officer Cantonment Board Malir."
Apart from above findings of the Enquiry Officer the appellant himself frankly admitted before the Tribunal that he had actually served in the Cantonment Board as a Chowkidar and not as a Dresser. As stated above he has not given any explanation even with regard to the finding on the above allegation in his reply to the final show cause notice. In view of the Enquiry Officer's findings coupled with appellant's admission in open Court, we hold the allegation of S. No: 8 as proved.
Coming to the allegation No: 9, the Enquiry Officer has recorded his findings in the following words: "His service record shows/proves that he is habitual absconder, avails self-granted leave and his behaviour with his colleagues and superiors is improper. As far as public dealing is concerned, there are several complaints in this regard on the record."
As pointed out above since the appellant did not care to furnish his reply to the final Show-Cause Notice, his explanation even on the above findings is missing. In the circumstances we do not have any justification to dismiss the above findings of the Enquiry Officer as untrue. Consequently we hold the allegation No:9 as proved.
7. This brings us to the allegation No: 7, It is with regard to the appellant's late-coming to the office and his behaviour with his superiors. As disclosed by the Enquiry Officer in his report, the evidence on the above allegations was recorded in absence of the appellant who did not attend the enquiry proceedings though notices were issued to him. No doubt the appellant, like other allegations, has denied this allegation to in his reply to the charge- sheet. He has stated that he was on the contrary, present on the relevant date when evidence was taken on the above allegation. But we are inclined to believe the Enquiry Officer in as much as that the appellant did not attend the Enquiry proceedings when evidence was recorded on the allegation No:
7. However we find no authentic proof to show that the notices issued to the appellant for the above dates were actually served on him. Consequently we do not think it just and proper to hold the appellant liable for what transpired in his absence.
8. In view of above discussion, five out of nine allegations listed against the appellant are held to have been proved against him. We have to see if the punishment awarded to him is in proportion to gravity of the charges levelled against him. We are no doubt convinced that the appellant is not fit to be retained in service. But he appears to us to be of young age, still having a long way to go.
His dismissal from service would operate as a permanent bar to his future employment particularly in Government or Semi Govt. Service. To avoid such eventuality we feel inclined to remove that hurdle from his way.
9. This can be possible only when the appeal is otherwise free from any legal difficulty. But we are told that the appeal was hit by the limitation. In this connection we have noted that the departmental appeal was filed from the impugned order of the appellant's dismissal on 17.6.1989.
Presumably the appellant came to this Tribunal after waiting for 90 days for decision of the departmental appeal. The said period having expired on 15th September, 1989 the appellant had to file appeal before the Tribunal by 15th October, 1989. But he actually file it on 30.10.1989, thereby delaying the appeal by 15 days. No formal prayer in the shape of application has been made before us for condonation of the said delay. Nevertheless we should not over look the fact that if the appellant remained out of job because of the stigma of his dismissal from service, his family would also suffer alongwith him. In order to hold him get over the above difficulty we condone the delay in filing the present appeal and convert the penalty of dismissal into that of removal simpliciter. Subject to the above modification in the punishment awarded to the appellant the with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 28th day of June, 1989 at Karachi.