CH. HASAN NAWAZ (MEMBER).---While he was in service as Stenotypist the following order was passed in respect of the appellant: "Ref:- Air HQ/17024/2593/CP(A)
Rear Air Headquarters, Peshawar, 17th September, 1989.
DISMISSAL FROM SERVICE
(1) I am directed to inform you that the authority has decided to impose pon you the major penalty of dismissal from service under Rule 4(b)(iv) of Government Servants (Efficiency and Discipline)
Rules, 973 with effect from 17th September, 1989 due to your prolonged unauthorised absence from duty from 19th June, 1989 to date which is an act of misconduct under Rule 3(b) ibid.
(2) Your absence from 19th June, 1988 to 16th September, 1989 has however been treated EOL without pay and allowances.
(3) You are hereby directed to submit proper clearance.
(Sd.)
(M. Aslam Bhatti).
Gp. Capt. for Deputy Chief of the Air Staff (Admire):'
The appellant took it as an order of dismissal from service and challenged its validity in the present appeal under section 4 of the Service Tribunals Act, 1973, filed on 4-2-1990 after fulfilment of statutory requirements of exhausting the departmental remedy.
2. The appeal was dismissed by a majority judgment dated 9-1-1991 on the ground of incompetency based on the finding that the appellant failed to fulfil the jurisdictional requirements of section 4(1)(a) of the Act.
3. On appeal it was held by the Supreme Court that the requirements of section 4(l)(a) of the Act had been fulfilled in this case and that the appeal was competent. On acceptance of appeal by judgment dated 15-3-1992, the case was remanded for disposal on merits.
4. The material facts are that the appellant made an application for ex-- Pakistan Leave to be able to seek admission in a West German Institute of West Berlin. Necessary No-Objection Certificate was obtained from the Directorate of Air Intelligence, PAF. A passport was also issued in his favour on the strength of this certificate. The first leave application for a period of three years having been refused, he made another application on 24-5-1988 for two years leave. He stated in this application that formalities regarding endorsement of Residence Visa in Passport and booking of seat for Frankfurt/West Berlin had been completed and that leave may be sanctioned on an early date. This was followed by application dated 6-6-1988 where he sought leave on half average pay for a period of 730 days.
5. On this application the following order was passed (Annexure H): REAR AIR HEADQUARTERS PESHAWAR (Dte of Civilian Personnel)
ADP (Discip)
EX-PAKISTAN LEAVE--MINISTERIAL STAFF
(1) Reference is made to your LM No. Air-HQ/11644/A/ADP(Discip), dated 8th June, 1988.
(2) AHQ/TC-23, Mr. Abdul Matnn, Stenotypist is granted 730 days Ex---Pakistan leave on half average pay from 11th June, 1988 to 10th June, 1990. He may be directed to submit proper clearance certificate immediately. Blank clearance certificate pro formas in duplicate- are forwarded herewith.
(3) As regards his replacement, it is stated that at present no Stenotypist is available. However, a test for recruitment to the post of Stenotypist has been conducted and you will be provided a Stenotypist as soon as one becomes available.
(Sd.)
(Abdul Malik)
G-II (Civ)
ADCP (Air HQ)
Encl: As statedTele Ext. 793 L.M. No. Air-HQ/17024/2593/CP(A), Dated 9th June, 1988."
6. It appears that the appellant proceeded abroad without submitting the required clearance certificate on 1-1-1989. He was served with the following show-cause notice: "No Air-HQ/17024/2593/CP(A)Rear Air Headquarters, Peshawar, 1st, January, 1989.
SHOW CAUSE NOTICE
(1) In pursuance of Rule 5(iii) of Government Servants (E&D) Rules, 1973, AHQ/TC-23 Mr. Abdul Matin, Stenotypist is hereby called upon to show cause in writing within seven days from the date of receipt of this notice as to why he should not be removed from service on account of the following:-- He applied for 730 days leave on half pay for the purpose of higher education in some Institutions of Western Country. During the process of approval of his leave he absented himself from 19th June, 1988 without submitting clearance certificate. He was directed to resume duty till approval of his leave vide our Memorandum bearing even number, dated 23rd June 1988 but he fills failed to resume duty and is still absent. This act on his part shows that he is not interested in service and has deliberately absented himself without leave which amounts to misconduct. Thus, he is accused/guilty of misconduct (i.e. Absence without leave and non-compliance of instructions).
(2) He is, therefore, directed to give reply within the stipulated period as to why the proposed penalty should not be imposed upon him. In case he fails to give his reply within the stipulated period, it will be presumed that he has nothing to say in his defence and the proposed penalty will be imposed upon him without any further notice.
(Sd.)
(M. Aslam Bhatti), Group Captain, Director of Civilian Personnel:'
7.Appellant's father submitted an explanation in writing on 8-1-1989, where he said that the appellant had already proceeded to West Germany by obtaining 730 days leave ex-Pakistan on half average pay. He requested that the notice should be addressed directly to him on the address given by him on his leave application. He made an attempt to explain the appellant's absence but its details are not relevant.
8. This was followed by the aforementioned document of 17-9-1989 which, as already pointed out before, has been treated by the appellant as an order of dismissal. Whatever the treatment given to it by the appellant, it seems to be rather difficult to hold that this document spells out an order of dismissal from service. It says "that the Authority has decided to impose upon you the-major penalty of dismissal from service under Rule 4(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973". I am of the view that the aforementioned expression hardly spells out an order of dismissal. It amounts only to a tentative decision to impose major penalty of dismissal from service. By no means does it amount to an order of dismissal. It is only a letter for all intent's and purposes, containing a proposal for imposition of a major penalty; which is also clear from the fact that in the last paragraph the appellant was directed to submit "proper clearance". I believe that this "proper clearance" was the one which he was advised to submit in the order of 9-6-1988 granting leave to him. There was hardly any justification for reading in this document an order which its phraseology does not convey.
9. I am strengthened in my belief from the fact that only a show-cause notice in terms of Rule 5(1)
(iii) of the Rules has been issued and that no final show-cause notice appears to have been issued in this case. The record, therefore, provides us with reasons to believe that this document of 17-9- 1989 was virtually intended to serve as a second show-cause notice, which undoubtedly explains the reason why it has been framed in the shape of a letter rather than an order.
10. By whatever name we may call this document of 17-9-1989, I feel no hesitation in saying that it is extremely difficult to uphold it. First reason in support of this view becomes available from the fact that in the show-cause notice of 1-1-1989, the appellant was called upon to show cause why he should not be removed from service. The proposed penalty being that of removal from service, no order of dismissal could be legally justified. Obvious reason was that the appellant was never called upon to show cause against a penalty of 4 dismissal from service. This being so, it was evidently passed without giving him an opportunity to defend himself against the proposed action.
11. This aspect of the matter apart, even otherwise it is not possible to sustain the impugned action.
Notice dated 1-1-1989 said that the appellant absented himself from 19-6-1986 "during the process of approval of his leave". It further said that he failed to resume duty and that his absence was in spite of service of Memo. Dated 23-6-1988 directing him "to resume duty till approval of his leave".
The notice causes an impression as if his application for leave had not been granted. But this is factually incorrect as would appear from order dated 9-6-1989 which said in very explicit terms that "Abdul Matin Stenotypist is granted 730 days ex-Pakistan Leave on half average pay from 11-6- 1988 to 10-6-1990. This grant of leave was absolutely unqualified and was not subject to fulfilment of any condition. There is no doubt that the order further said that "he may be directed to submit proper clearance certificate immediately". But this did not constitute a condition. I have no doubt in my mind that the early part of the order granting leave to him was independent of the direction regarding clearance certificate. In other words, there is nothing whatsoever in the order to show that the grant of leave was subject to production of clearance certificate.
12. The result of this analysis is that the show-cause notice did not represent the correct factual position. It proceeds on the assumption that leave had not been granted and that the appellant proceeded abroad without its approval and that his absence from the office was wilful and in wanton disregard of office discipline. As already pointed out before, this was not the factual position, for the simple reason that leave had been granted to him. Therefore, the letter of 1-1-1989 did not amount to a proper show-cause notice. It did not convey the real charge against him. As things were, he should have been called upon to show cause why he failed to produce the necessary clearance certificate. The notice did not call upon him to explain what in actual fact had been committed by him. It asked him to explain what he had obviously not done. Therefore, the show-cause notice did not represent the correct position and we cannot say that it was sufficient to give the appellant an opportunity to defend himself against the proposed action.
13. There is yet another aspect of the matter. The notice was sent to him at his Peshawar address., Although it was received by his father, it did not amount to proper service. The record shows that he had given his address of West Germany in his applications dated 24-5-1988 and 6-6-1988.
There is no reason why the respondent should not have despatched the notice on the address given on these applications. Under the circumstances, the receipt of notice by his father did not amount to proper service on the appellant and the impugned action was evidently an unheard condemnation, if at all the document of 17-9-1989 be presumed to have amounted to an order of dismissal.
14. For these reasons, I hold that the appellant has not been given any opportunity to defend himself against the proposed action and that the disciplinary proceedings in this case suffer from an inherent defect which cannot be cured. This irregularity vitiated the proceedings and the impugned action resulted in an obvious miscarriage of justice. The appeal is accordingly accepted and the document of 17-9-1989 is set aside as being illegal. The respondents shall, however, be within liberty to initiate disciplinary proceedings against the appellant afresh, from the stage whence the mistake can be rectified. The appellant in that eventuality shall be served with a fresh show---cause notice in the light of the aforementioned observations and the competent authority shall, of course, be within its powers to pass any order in accordance with law. No order as to costs.
Parties to be informed.
RANA RIFAT SAEED (MEMBER): --15. Briefly to say that the appellant's leave ex-Pakistan had been sanctioned from 11-6-1988 to 10-6-1990 (for 730 days), but without handing over the charge, obtaining clearance and getting himself relieved from the Department, he had proceeded abroad w.e.f. 16-61988. The Department after following the prescribed procedure had dismissed the appellant from service vide orders dated 7-9-1989 which were conveyed to him at his permanent residence in Pakistan and the appellant in his letter dated 9-10-1989 addressed to the Department from abroad had admitted the communication of dismissal order.
16. The appellant's ex-Pakistan Leave which was for 2 years/730 days w.e.f. 16-6-1988 was in any case to expire on 15-6-1990 and he was to join the Department on 16-6-1990 but till the date of hearing of the appeal i.e. 11-11-1992 he had neither reported for duty nor obtained any sanction for extension in his ex-Pakistan Leave. The instant appeal had also been persued and followed by his father. It is evident that during his absence from Pakistan from 16-6-1988 uptill the date of hearing i.e.11-11-1992, this period of approximately of 4-1/2 years, he had not been able to return and join back the Department. Of course, he had kept himself wilfully absent and was guilty of gross misconduct, for such a misconduct the punishment of dismissal was essentially warrnated. Had he returned back after the expiry of sanctioned leave, joined back the Department and pleaded his case before the Tribunal, there might be a different angle to consider the relaxation/waive off in his punishment of dismissal. But the appellant had kept himself wilfully absent w.e.f.16-6-1988.
17. Therefore, considering his instant appeal before the Tribunal and examining the fads and merits afresh, I do not think myself that the appeal justifies any relaxation/modification in the punishment of dismissal. Therefore, in my own assessment there is -no substance and merit in the appeal which is accordingly to be dismissed.
ORDER OF THE TRIBUNAL By virtue of proviso (a) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, according to majority opinion, the appeal is accepted and decision be announced accordingly.