1. JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).-The facts of this case arc very simple. The appellant Mukhtar Ahmed was working as Nursing Attendant under the Govt. Police Surgeon, Karachi when his services were terminated. He preferred appeal to the Director Health Services, Sind Hyderabad, against the order of termination of his services. Accepting his appeal, the Director ordered for the appellant's reinstatement. In the same order of the reinstatement it was further directed that the enquiry against the appellant would proceed afresh. In pursuance of the Director's order, the Deputy Director, Health Services, Karachi issued a formal order dated 6th May, 1987, reinstating the Appellant with immediate effect. In compliance of the said order, the appellant submitted his report for resumption of duties to the Police Surgeon on 9.5.87. The Police Surgeon presumably acting as "Authorized Officer" under the Sind Civil Servants (Efficiency and Discipline)
2. Rules 1973, (hereinafter referred as the said rules) passed an order dated 10th May, 1987, appointing Dr. Athar Hussain Malik as enquiry officer for holding enquiry against the appellant. As the appellant was not paid the salary for the month of May, 1987 he made application on 6th June, 1987 to the Police Surgeon for releasing his salary for the said month. Meanwhile one Abdul Wahab who was appointed as Nursing Attendant in place of the appellant was working in the said post.
3. The appellant's allegation is that on 8th June, 1987, he was called by the Police Surgeon in his office, who persuaded him to submit a fresh duty report, as he had not taken him on duty on his previous report. The said Surgeon assured the appellant that no harm would be caused to him and further that he would get his salary for the month of May, 1987. On such assurance of the Police Surgeon the appellant submitted a fresh duty report on 8.6.1987 whereupon the Police Surgeon issued necessary order taking the appellant on duty and relieving Abdul Wahab of the charge of Nursing Attendant. On 4th August, 1987 the appellant was served with a show-cause notice alleging therein that he had misguided the Deputy Director as well as the Police Surgeon in as much as that he reported for duty on 9.5.87 though he actually submitted his duty report on 8.6.1987. The appellant furnished his explanation in reply to the said notice. He was again served with final show-cause notice to which also he submitted his reply. However, the Police Surgeon passed the order dated 31st August, 1987, removing the appellant from service. The appellant preferred appeal against the order of his removal to the Deputy Director, Health Services, Karachi on 20.9.1987 and after waiting for 90 days for decision on his said appeal, he came up in the present appeal before this Tribunal.
4. The arguments were heard at the bar of the learned counsel for both the parlies. We also went through all the necessary record laid before us.
5. The show-cause Notice served on the appellant, which ultimately led to his removal from service reads as under: "In exercise of the powers conferred by Rule 4-A read with Sub-rule (3) of Rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, Dr. H. B. Memon, Police Surgeon Karachi as an Authorized Officer: -
(a) am of the opinion that in view of the allegations that you Mukhtar Ahmad, Nursing Attendant, arc guilty of misconduct as per details given below, there arc sufficient grounds that disciplinary action be taken against you under the said Rules.
(b) Have decided that it is not necessary to have enquiry conducted through an Enquiry Officer or Enquiry Committee.
2. I, therefore, by this Notice inform you that on the above ground it is proposed to impose on you all or any of the penalties described in Rule 4 of the said Rules. You are accordingly called upon to Show Cause Notice why the proposed action should not be taken against you.
3. Your explanation should reach the undersigned within 14 (fourteen) days of the issue of this Notice failing which ex parte decision will be taken against you under the Efficiency and Discipline Rules, 1973. You may also indicate whether you would to be heard in person.
6. The details of your misconduct are as under:-
(a) am of the opinion that in view of allegations that you Mukhtar Ahmed Nursing Attendant have mis-guided office of the Deputy Director, Health Services, Karachi Division, Karachi, and to undersigned that you have reported on 9.5.1987, though you have reported on 8.6.1987 (F.N) vide your duty report dated 8.6.1987. Your reply to the explanation call vide No.PSK/-1614/15, dated 28.7.1987, regarding above mentioned irregularity is unsatisfactory.
(b) Your reply dated 2.8.1987 is also un-ethical and awkward and the language used by you is very ugly.
7. Sd/- (DR. HUSSAIN BUX MEMON)
8. POLICE SURGEON KARACHI."
9. According to the explanation furnished by the appellant, following his reinstatement in service he submitted his duty report on 9.5.1987. However he was called by the Police Surgeon in his office on 8.6.1987 and was pressurized by him to give fresh duty report which he gave on the same date. The appellant had given this explanation in reply to the Police Surgeon's letter dated 28th July, 1987 whereby he was called upon to explain why disciplinary action should not be taken against him for having misguided the office of the Deputy Director Health Services in respect of the payment of salary for the month of May, 1987. The appellant claimed to have reiterated the same explanation in reply to both formal show-cause notice dated 4th August, 1987 and final show-cause notice dated 13th August, 1987.
10. As for the charge at para (b) of the notice, the appellant's reply dated 2.8.1987 was not placed before us by either party. However the appellant while explaining the said charge has referred to his reply dated 29.7.1987. We have perused this reply but we find nothing offensive in it. Coming to the charge at para (a) of the notice it appears that no formal enquiry as envisaged by rules 5(2) & 6, of the said rules was ever held against the appellant. The question arose if the charge Cyclades against him was duly proved. Because the penalty of removal from service could not be imposed upon the appellant unless he was proved to have misguided the concerned office in respect of payment of salary for the month of May, 1987. In absence of full dress enquiry the only material available to the punishing authority was the appellant's own explanation. He had no doubt admitted in his explanation that he submitted duty report on 8.6.1987. Would such admission on his part be taken as proof of the charge levelled against him? Of course this was possible only when the other part of his explanation that he submitted the said duty report under persuasion and pressure of the Police Surgeion was totally ignored. The explanation read as a whole would reveal that he first submitted his duty report on 9.5.1987 and that the duty report dated 8.6.1987 was submitted by him on persuasion and pressure of the Police Surgeon. We have to see if the appellant's above explanation bears any truth.
11. It would appear that due to the appellant's unauthorized absence from duties, his services were terminated as far back as on 27th May, 1985. In his appeal to the Director, Health Service against the said order, the appellant attributed the termination of his services to the personal grudge of the competent authority. However his appeal was accepted by the Director by his order dated 30.4.1987 on technical ground that the action of terminating the appellant's services was not in accordance with the rules. While ordering his reinstatement, he directed in the said order that "fresh enquiry shall be conducted against Mr. Mukhtiar Ahmed, Nursing Attendant". In pursuance of the Director's order, the Deputy Director Health Services, Karachi issued a formal order reinstating the appellant with immediate effect vide his order dated 6th May, 1987. The appellant's plea as stated in para 4 of his memo of appeal is: "That accordingly the appellant submitted an application for resumption of duty dated 9.5.1987 which was taken by Mr Abdul Majeed Khatri, Head Clerk and placed before the Respondent No.1 (Police Surgeon) for further duty to the appellant............................. But the Respondent No.1 with malafide intention did not issue any order in writing to the appellant regarding duty and he was asked to come daily on duty verbally." In support of his plea the appellant invited our reference to his "Resumption Report" dated 9.5.1987 at annexure 'E' in the case file. However this has been denced in the written statement filed on behalf of the official respondents which shows that the appellant resumed his duty on 8.6.1987.
12. In order to appreciate which of the above to versions was correct, our attention was drawn to the "Office Order" dated 10th May, 1987 issued by the Police Surgeon (Respondent No.1). It reads as under":- OFFICE OF THE POLICE SURGEON KARACHI NQ:PSK/( )/- 1144/45, DATED THE 10th May, 1987 OFFICE ORDER Dr. Athar Hussain Malik Medicolegal Officer of this office is hereby appointed as an enquiry officer.
13. He is directed to give his complete report within three days to the undersigned.
14. Personal File of Mr. Mukhtar Ahmed Nursing Attendant is also sent herewith.
15. (DR. HUSSAIN BUX MEMON)
16. POLICE SURGEON KARACHI NO:PSK/( )/- Dated the the MAY: 1987 Copy to Mr. Mukhtar Ahmed, Nursing Attendant. He is directed to appear before the Dr. Hussain Bux Athar Hussain Malik, Medicolegal Officer, of this office for any enquiry.
17. (DR. HUSSAIN BUX MEMON)
18. POLICE SURGEON, KARACHI."
19. Obviously above order was issued in compliance of the Director's order dated 30.4.1987 whereby while ordering the appellant's reinstatement he directed for holding fresh enquiry against the appellant. It would appear that a copy of the above office order was endorsed even to the appellant, by his name and designation. Not only this, but the learned Police Surgeon had directed the enquiry officer in the said order to give his complete report to him within three days. Thus above office order clearly demolished the stand taken by the official respondents that the appellant had resumed his duty on 8.6.1987. Had he not submitted his duty report on 9.5.1987, the Police Surgeon would not have issued order on the following day appointing enquiry officer for holding enquiry against the appellant nor would be have required enquiry officer to submit his complete report within three days. The fresh enquiry against the appellant as ordered by the Director could only follow his reinstatement. We have also come across the statement of the appellant recorded by the aforesaid enquiry officer at annexure 'G' in the case record. It is dated 12.5.1987. This lends further support to the appellant's plea that he had submitted resumption of duty report on 9.5.1987. It seems on receipt of the appellant's duty report the Police Surgeon lost no the in appointing enquiry officer, as his appointment was made by above office order on the next day i.e. 10.5.1987. Since the Enquiry Officer was required to submit his complete report within three days of his appointment, he to showed his vigilance so much so that he recorded the statement of the appellant to days later i.e. On 12.5.1987. Thus all this was done in natural sequence. Even otherwise there appeared no cogent reason for the appellant to have delayed his resumption of duty after his reinstatement in service. On the contrary it was reasonable to expect him to have immediately rushed for resuming his duties as soon as he was reinstated in service. As stated above his appeal was accepted by the Director on 30.4.1987, nearly to years after his ouster from service on 27.5.1985. Therefore the person: who had suffered so long would rather not brook even a day's delay in availing the order of his reinstatement. Therefore we are unable to believe that he would wait for more than a month after the order of his reinstatement and would report for duty on 8.6.1987.
20. We have also been shown to more documents which further strengthen the appellant's case. The first document is appellant is own application dated 6th June, 1987 addressed to the Police Surgeon endorsing a copy thereof to the Deputy Director, Health Services, Karachi. It is annexure 'H' on record. In this application the appellant prayed for payment of his salary for the month of May, 1987 which, had become due to him. The second document was the letter dated 8th June, 1987, of the Deputy Director, Health Services, Karachi addressed to the Police Surgeon. In this letter which was obviously written in reply to the Police Surgeon's own letter dated lst June, 1987, it was pointed out to him: "Mukhtar Ahmed should have been taken on duty from the date he reported for duty to you and as a result thereof Mr. Abdul Wahab become surplus and entitled to no salary etc. Whatsoever." This shows that the appellant had submitted his duty report before this letter obviously on 9.5.1987 and that the same had even come to the notice of the Deputy Director.
21. Although the Police Surgeon's letter dated lst June, 1987 referred to in the above Deputy Director's letter was not placed before us, we believed that on receipt of the appellant's earlier duty report dated 9.5.1987 and his subsequent application for payment of salary for the month of May, 1987 the Police Suregon by his said letter had taken up with the Deputy Director the matter of continuation or otherwise of services of Abdul Wahab who was appointed as Nursing Attendant in place of the appellant. It seems to us that when the Police Surgeon was told by the Deputy Director by his above letter that Abdul Wahab was not entitled to any salary from the day the appellant reported for duty, he managed to obtain a fresh duly report from the appellant indicating that he reported for duty on 8.6.1987. On the same day the learned Police Surgeon issued to orders one after the other showing that on appellant's resumption of duty, the services of the said Abdul Wahab were first placed at the disposal of the Deputy Director but later cancelling the said order his services were terminated.
22. We are convinced from all the documents mentioned above that as soon as the appellant submitted his first duty report on 9.5.1987, the Police Surgeon while showing his promptness in appointing enquiry officer and requiring the said officer to submit his report within three days, perhaps though that he would thereby dispense with the appellant's services quickly. But when the matter was not finalized as per his expectation and on the other hand the appellant came up with the demand for payment of salary for the month of May, 1987 he was nonplused particularly when he had allowed aforesaid Abdul Wahab to continue as Nursing Attendent for the intervening period. Accordingly we are not surprized if the learned Surgeon in order to cover up his own lapses exerted pressure on the appellant who was after all a menial staff in his comparison, to furnish fresh duty report. In these circumstances the learned Police Surgeon would not be permitted to turn round and punish the appellant for submitting fresh duty report. Even otherwise the police Surgeon was not competent as Authorized Officer to award major penalty of removal from service to the appellant. As indicated in the impugned order, the proposal to award major penalty to the appellant was mooted with approval of the "Authority" but there is nothing to show that the major penalty was actually imposed with the said "Authority's" approval. In fact approval of the "Authority" is not available on record. Even to show-cause notices, first formal notice and second final show- cause notice are absolutely silent if the "Authority" was taken into confidence before awarding major penalty.
23. In view of above discussion we allow the appeal with no order as to costs and set aside the impugned order of appellant's removal from service. The appellant would be treated to have resumed duty from, the date of his earlier duty report i.e. 9.5.1987. However Abdul Wahab had worked as Nursing Attendent from that date until 8.6.1987 and was even paid the salary for the said period. Since to incumbents Can not be allowed to draw the salary against the same post for the disputed period, the department is directed to resolve the issue at their own level as per rules.
24. Given under our hands and the Seal of this Tribunal on this 4th day of April, 1989 at Karachi.