' CH. A. RAHMAN KHAN (MEMBER).---Mr. Ahsan A. Shauque, the appellant, Ex-UDC, National Savings Directorate, has come in appeal against the impugned order dated 5-9-1987 whereby he was removed from service with immediate effect. His departmental appeal, dated 19th September, 1987 remained unresponded.
2. Briefly, the facts of the case are that the appellant was working as Upper Division Clerk in the National Savings Centre Samanabad, Lahore when he was transferred to National Savings Centre, Ravi Road vide order dated 22-3-1986 but he failed to join his duties. He was, therefore, served with the show-cause notice, dated 28-5-1986, extract of which is reproduced below:
(i) You did not join your duties at National Savings Centre, Ravi Road, Lahore on transfer from National Savings Centre, Samanabad, Lahore, after being relieved on 16-4-1986.
(ii) You are absent from duties from 17-4-1986 till date without intimation.
(iii) You refused to receive two letters sent by this Directorate under registered cover which has been received back undelivered with the remarks of the postal authorities.
' It was contended by the learned counsel that the appellant while Serving as UDC was elected as General Secretary of the National Savings Staff Union (C.BA.) Lahore, in the year 1985. Since the appellant has started agitating the problems of the staff with the management in his capacity as General Secretary, the respondents became hostile and started victimizing the appellant. It was under these circumstances that his transfer order was issued to National Savings Centre, Ravi Road, Lahore. The appellant submitted his reply on 21-9-1986. He in the meantime filed a case in the National Industrial Relations Commission, Islamabad, who passed an order of status quo on 26-5-1986. It was further submitted that the order of status quo was vacated on 24-7-1986 by the N.I.R.C. On the assurance of the respondents that they were willing to transfer him anywhere in the Lahore Region except under Khawar Ali Shah Raza, the respondent No,2.
3. It was further submitted that the appellant had fallen ill on 15-4-1986 till 2-6-1986 and he had submitted his leave application duly supported by medical certificates under registered cover and acknowledgement due. However, the respondents did not accept the service of application by post which proved their mala fide against the appellant. The application alongwith medical certificates was, therefore, delivered by the appellant personally on 28-5-1986. In addition, it was argued that as the status quo of the N.I.R.C. Was vacated on 24-7-1986 as a result of the compromise reached between the management and the appellant, it was presumed that the show-cause notice dated 28-5-1986 against the appellant had been withdrawn. The learned counsel for the appellant submitted that another show-cause notice dated 30-8-1987 was again issued, the extracts of which are reproduced below:--
(i) You visited this office on 4th and 5-5-1987, without getting written permission from your Officer Incharge, or Controlling Officer, in contravention of 'this office order/instruction issued vide Memo.
No,DNS-AE-Gen (18)/87, dated 30-4-1987.
(ii) As reported by Officer Incharge, NSC, Samanabad, vide his Memo dated 6-5-1987, you often remained away from the office in connection with union activities which is irregular.
(iii) You also disobeyed the instructions issued vide this office Memo No, DNS-AE(Staff) 87, dated 25-5-1987 as per contents of your Memo. No, NSSU(CBA)87-367, dated 10-6-1987.
(iv) The manner you have behaved and made correspondence is against the discipline.
' The appellant submitted his reply dated 1-9-1987 to the show-cause notice. However, without giving any consideration to the fact of denying the allegations made in the show-cause notice dated 30-8-1987, the impugned order of his removal from service dated 5-9-1987 was issued. He submitted his departmental appeal 19-7-1987 denying all the allegations levelled in the show- cause notice dated 30-8-1987. It was pleaded that the impugned order dated 5-9-1987 whereby the appellant was removed from service was illegal and incompetent because the union activities could not be made basis for the issuance of the impugned order. It was, therefore, prayed that the impugned order dated 5-9-1987 may be set aside and the appellant be reinstated in service with full back benefits.
4. The learned counsel for the State alongwith the representative of the respondents controverted the arguments of the appellant. It was strongly contended that the transfer order dated 22-3-1986 was issued under section 10 of the Civil Servants Act, 1973. The appellant was, therefore, transferred within the Lahore Zone and within the city of Lahore. There was no reason why he should have resorted to disobeying the lawful transfer order on wrong pretext. He was relieved of his charge from the office of the National Savings Centre, Samanabad on 16-4-1986 whereas his application dated 15-4-1986 supported by the medical certificates was received on 28-5-1986. During this period the appellant, in fact, was pursuing his case in the NIRC and he was present at Islamabad on 26-5-1986 when the order of status quo was passed by the NIRC. It is, therefore, evident that the appellant was in fact not sick but he had made a false excuse and remained absent from duty.
However, he continued to disregard the instructions issued vide Memo No, DNS-AE-3(1) (Vol.III)/87, dated 25-5-1987. He was, therefore, issued a show-cause notice dated 30-8-1987 the extract of which has been produced above. His reply dated 1-9-1987 was found unsatisfactory. It was evident that the appellant remained wilfully absent from duty. It was further contended that the issuance of the show-cause notice dated 30-8-1987 did not cause any prejudice to the appellant even when the show cause dated 28-5-1986 was not withdrawn as held in 1988 SCM R 617. Furthermore, since no prejudice has been caused the question of illegality of notice should not stand in the way of justice as held in PLD 1988 SC 35. Since the show-cause notice was issued under rule 5(1)(iii) there was no requirement of regular enquiry. The impugned order dated 5-9-1987 was issued, whereby he was removed from service with immediate effect. It was, therefore, prayed that the impugned order be upheld as legal and competent.
5. We have heard the arguments from both the sides and perused the record presented to us carefully. We are of the view that since show-cause notice dated 30-8-1987 was issued under rule 5(1)(iii) of the (E & D) Rules, 1973, there was no requirement of regular enquiry. However, in view of the long service of the appellant we take a lenient view and impose the penalty of compulsory retirement from service. Ordered accordingly.
6. No orders as to costs.
7. Parties be informed.