GHULAM MUJADID ISRAN, MEMBER.- Jairamdas Ex-driver office of Mukhtiarkar Umarkot has filed the present appeal u/s 4 of the Sind Service Tribunals, Act, 1973, against his termination from service by order of Deputy Commissioner Tharparkar dated 11.5.1989 and subsequently upheld by the Respondent No.1 vide his order dated 12.9.1990. He has requested for setting aside the above impugned orders.
2. Briefly stated the facts of the case are that appellant was posted as Driver in the Office of Mukhtiarkar Umarkot when he himself absented from duty without leave Or permission w.e.f.
21.5.1988. A showcause notice dated 16.8.1988 for his willful absence was issued to him. In reply to showcause notice the appellant stated that he fell ill therefore he could not attend his duties. He submitted medical certificate in support of his version. Consequently the services of the appellant were terminated by the Deputy Commissioner, Tharparkar vide his order dated 11.5.1989. The appellant preferred an appeal before the Commissioner, Hyderabad which was .Dismissed vide his order dated 12.9.1990. Hence the appellant has filed the present appeal before this Tribunal.
We heard the arguments of the learned counsel for both the parties and also went through the relevant record. Mr. Manohar Lai represented the appellant whereas Mr.M.M Aqil Awan appeared for official respondents.
3. The following two allegations have been made against the appellant (1) He was a person of character was involved in kidnapping case of a Hindu Girl (2) He remained absent from duty with effect from 21.5.1988.
The showcause notice dated 16.8.1988 issued to the appellant is reproduced below because of its importance and bearing on the decision of the appeal:- "Your Jairam s/o Gordhandas Driver office of Mukhtiarkar, Umerkot are hereby required to show cause for the charges shown as under:-
4. That according to the report of Mukhtiarkar Umerkot you remained absent from Govt: duty without any intimation from 21.5.88, and your whereabouts are not known.
That by the reason of above you appear to be irregular negligence in the discharge of your official duties and have rendered yourself liable for one or more penalties prescribed under rule 4(a)(b) of Sind Civil Servants (E& D) Rules 1973.
You are therefore call upon to show cause in writing within 14 days at the receipt of this .Notice as to why action as a for said should not be taken against you also state in writing within the same period. Whether you admit the truth of charge and of not explanation and defence you wish to offer and whether you desired to be heard in person.
5. Your written reply should reach to the undersigned within the above said period, failing which it would be presumed that you have nothing to say and the case will be decided accordingly."
The showcause notice does not contain the allegation against the appellant regarding his character which has been mentioned in the impugned order of Deputy Commissioner Tharparkar dated 11.5.1989. The relevant portion of the order is reproduced as under:- "Mukhtiarkar Umerkot while forwarding the reply of the accused to the showcause notice has remarked that the accused official was involved in a kidnapping case of one Hindu girl u/s 11/16 Hudood Ordinance and that he was person of shady character and unfit to be retained in Govt.
Service."
If the showcause notice issued in the present case is scrutinized in the light of above findings the allegation of shabby character was not communicated to the appellant. The competent authority should have acted in accordance with principle of natural justice. A person sought to be affected must at least be aware of the nature of allegations against him and he should be-given a fair opportunity to put forward his case before any order adverse to his interest-could be passed. The appellant was thus clearly deprived of the opportunity to show the competent authority that the allegation against him was without any foundation. The appellant was also tried on the charge of kidnapping of Hindu girl in the Court of IInd Additional Sessions Judge at Mirpurkhas but was acquitted vide his order dated 27.5.1989. Thus the charge of shabby character against the appellant is not proved.
6. As regard the allegation in respect of his absence from duty, it is an admitted fact that the appellant was absent from duty with effect from 21.5.1988. However the appellant produced medical certificate issued by Registrar, Liaquat Medical College Hospital, Hyderabad dated 27.5.1988 in which his date of admission in the Hospital is shown as 21.5.1988 and date of discharge as 27.5.1988. The appellant by that certificate was advised to take rest for 10 days. Under the circumstances the medical certificate should have been considered for grant him medical leave.
However if the authority competent to sanction such leave was not satisfied he could have secured a second medical opinion. But since the leave was not sanctioned by the competent authority we treat his absence as unauthorised absence.
The appellant was serving as driver since 1986. In view of his service and considering facts of the case, we feel that the extreme action of terminating the appellant from service was too harsh, we reduce the said penalty to stoppage of two annual increments without cumulative effect due to the appellant immediately after his absence from duties. The period of his absence may be treated as extraordinary leave without pay, in case leave earned by him if any was not.
The appellant will however, stand re-instated in service from the date his services weise terminated. Accordingly appeal is partly allowed with no order as to costs.
Given under our hands and seal of this Tribunal on this 11th day of July, 1991 at Karachi.