JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).-Appellant, Mr. Khursheed Ahmed, was Superintendent, in the Directorate of Accounts (Inspection) Govt, of Sind when he was removed from service, in consequence of disciplinary action taken against him under Sind Civil Servants (Efficiency and Discipline) Rules 1973 (hereinafter referred as the said rules) vide notification No. FD(DA) 1 (1)/82(p) dated 19th August, 1990 of the Finance Department, Govt, of Sind. The departmental action was initialed with service of show-cause notice dated 26th May, 1990 on the appellant. The allegations against him were that he was in the habit of availing leave without sanction; that he had remained absent from duty un-authorizedly from 28.10.1989; that he had no interest in Govt, sendee and that he had drawn pay for the months of November and December, 1989 for which he had applied for extraordinary leave. After he submitted his reply to the show- cause notice, he was once again required by the notice dated 24.1.1990 to resume his duty but without any result. He was ultimately punished by the order contained in the notification hereinabove. The appellant challenged the order of his removal in his departmental appeal dated 12.9.1990 filed before the Chief Secretary. As the said appeal remained un-decided even after expiry of the statutory period of 90 days, he approached this Tribunal in the present appeal filed on 19.1.1991.
2. We heard the arguments of the learned counsel for the parties and went through the relevant record.
The allegations contained in the show-cause notice which ultimately led to the appellant's ouster from service are reproduced as under: "The details of charges of misconduct are enumerated below
1. You are habitual of availing self granted leave as reported by Director of Accounts (Inspection)
Sind Karachi.
2. You are un-authorisedly absent from duty w.e.f. 28.10.1989.
3. The total number of leave availed of by you leads to conclude that you have no interest in Government Service.
4. You have already drawn your pay for November and December, 1989 and at the same the you have requested for Extra Ordinary leave w.e.f. 28.10.1989, Being Gazetted Officer you should not have drawn your salary for the above period."
3. It would appear that the main allegation against the appellant was that he remained absent from duties un-authorised for nearly one year i.e. From 28.10.1989 to 19.8.1990, the date of the order of his removal from service. In this connection we may refer to the appellant's reply to the show- cause notice. His assertion at S. No: (3) of the reply reads as under: "3. Sir, I have been harrassed by some goondas with threats to kill therefore I could not attend mv duties as there was every possibility to occur such situation."
Obviously the appellant has admitted the truth of his un-authorised absence from duty. However, his explanation for remaining absent was that due to threats of some goondas, he could not attend his duties. We are not impressed by this explanation which apart from being vague, does not inspire confidence. He has not elaborated his explanation as to who the goondas were and what sort of animosity he had with them. He has also not explained when he got the threats and how long he did not stir out from his house. On the other hand the material available on record does not fully support the appellant's above stand. First of all he did not even make an application for grant of leave. This is clear from his reply hereinabove, which is silent in this regard. So he stayed away from his duties without applying for leave, what to speak of getting the leave sanctioned. For the first the after his absence from duty since 28.10.1989, the appellant was required to resume his duties vide endorsement of the Deputy Director Accounts (Inspection) dated 6.11.1989. Instead of first resuming his duties, he seemed to have made application for extra ordinary leave for 365 days whereupon the Finance Department vide its letter dated 6th March 1990, beside rebuking him for not joining his duties in compliance of the said Department's direction, called upon him to explain within seven days as to why discipliner action should not be taken against him. In reply to the Finance Department's above letter, the appellant once again expressed his inability to resume duties, repeating his vague explanation that he was being threatened by the gang of goondas that he would be kidnapped and done to death. In the said reply he also repeated his request for 365 days' extraordinary leave.
4. However it was disclosed by the appellant's learned counsel in course of the arguments that the appellant was subjected to harassm ent on account of his brother who had developed a row with one Manzoor Ahmed, Section Officer, Health Department in connection with the business they were jointly doing. In support of his disclosure he invited our reference to the writ petition filed in the High Court and the order of the said Court passed thereon. We have perused both the writ petition dated 20.5.1990 and the High Court's order thereon dated 30.8.1990. No doubt these documents speak of civil as well as criminal litigation between the appellant and Manzoor Ahmed Memon relating to the dispute over payment of some money allegedly arising from the business transactions jointly carried on by the said Manzoor Ahmed and the appellant's brother. However the High Court's order shows that the appellant's writ petition was disposed on the basis of the statement given by the SDM who had started criminal proceedings against the appellant in respect of the aforesaid dispute, to the effect that he had dropped the said proceedings and directed the parties to seek remedy in the Civil Court.
The point for our consideration is whether the appellant's involvement in the dispute between his brother and the latter's partner Manzoor Ahmed relating to their joint business transactions and in the consequential litigation justified his absence from his duties without leave. If the said dispute took much of his the, nothing prevented him from making proper application for grant of leave. It seems he did not bother about making such application for leave but chose to remain absent from duty un-authorisedly. According to his version of the case, he did not attend to his duties because of threats from some goondas, By raising such plea he sought to create the impression as if he did not stir out from his house but was rather confined there due to fear of the goondas. But as pointed out above the material available on record has gone long way to demolish his such myth of fear.
Admittedly he attended both civil and criminal courts in connection with the litigation mentioned above. He also filed writ petition in the High Court and kept attending that Court. In such circumstances it was difficult to believe that he stayed away from his duties on account of fear of the goondas. It was after the appellant was called upon by the notice to resume his duties that instead of making compliance of the said direction, he applied for extra-ordinary leave for 365 days. He could make such application even before remaining absent from duties unauthorisedly.
As is clear from the notice dated 24.1.1990 given to the appellant by the Directorate of Accounts, Finance Department the Directorate was prepared to consider his request for extraordinary leave provided he first resumed his duties. But in his reply dated 19.2.1990 he persisted in his version that due to domestic problems he was unable to attend the duties. In fact the above notice was the fourth chance given to him for attending to his duties but the appellant continued to give a cold shoulder to such notices, proving thereby his gross indifference in attending to his duties. Despite he alleged fear of the goondas, if he could attend his other business outside his house premises, we see absolutely no justification for his avoiding to attend official duties. The charge of the appellant's long absence from 28.10.1989 is accordingly proved.
As is disclosed in the catalogue of allegations against the appellant reproduced hereinabove, one more charge against him is that he was habitual in remaining absent from his duties un- authorizedly. The appellant's reply to the show-cause notice was conspicuously silent with regard to this charge. His admission that he stayed away from his duties without leave for a long period of nearly one year also goes long away to prove the charge. Further more he had requested for 365 day's extra-ordinary leave, showing thereby that he had no leae due left to his credit. This is also a clear "proof of his fondness for taking an enjoying leave to frequently, so much so that he did not care to save some leave for rainy days. We can therefore safely conclude that he had hardly any interest in doing Govt, service. This view is further strengthened by the appellant's entanglement in the business dispute prima facie concerning his brother but it appear to us to be benami business carried on by the appellant in the name of his brother. Unless he had personal stakes in the business, it was difficult to believe that innocent brother would be dragged in the costly litigation and would ultimately be made the scapegoat.
5. From above discussion we have come to the conclusion that the first three charges reproduced above are proved. As for the fourth charge, suffice to say that the appellant had not drawn the salary for the months of November, and December but it was rather deposited in his Bank Account through computer system in vogue in Government offices. Of course he had applied for extra- ordinary leave for 365 days which included the period for which the said salary was credited in his Bank Account. Thus he knew fully well that he was not entitled to the said salary; yet he took no steps to refund the amount of the deposited salary. His omission in this regard amounted to misappropriation of the said amount though for a temporary period until it had to be duly refunded to the Government. So the fourth charge also stands proved.
6. For above reasons we arc of the view that the appellant deserved the penalty which has been awarded to him. We see no justification to interfere with the impugned order which is hereby upheld and the appeal is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal this 26th day of September, 1991 at Karachi.