' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant, Mr. Muhammad Ejaz while working as Telephone Operator in the Department of Communication Security, was served with a charge- sheet, dated 11th August, 1994, with statement of allegations, as follows:- " On 11th August, 1994, Mr. Muhammad Ejaz, Telephone Operator of this Department and Mst. Khudija W/O Mr. Muhammad Hafiz Khan, Duplicating Machine Operator of this Department, were found in Flat No, B-14-G-8/1 (Karachi Flats) allotted to Mr. Muhammad Ejaz, Telephone Operator, from 1007 to 1145 approximately till the door was got opened by the deputed officer, whereas both are not the relatives and according to Islam they were not supposed to stay as such."
' The appellant submitted his reply pleading his innocence. Inquiry was conducted and the Inquiry Officer held the appellant guilty of misconduct, thereafter, the competent Authority after issuing show-cause notice, dated 7th September, 1994, passed the impugned order, dated 2nd October, 1994, whereby the appellant was dismissed from service under the provisions of E&D Rules, 1973.
Being aggrieved, he filed departmental appeal on 23-101994, but the same was rejected by.
Cabinet Secretary vide letter, dated 21st December, 1994, received by the appellant on 28-12-1994.
He then filed this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973.
2. Mr. Aminur Rehman Khan, the learned counsel for the appellant argued that the allegations against the appellant contained in the charge-sheet are vague and do not come under the purview of 'misconduct' as provided in the E&D Rules. It is submitted that there was no complaint from anybody, even from the husband, against the appellant and, therefore, the impugned order of dismissal from service is bad in law.
3. The departmental represeutative submitted that a telephone call was received by their boss that Mst. Khudija was sitting in the Flat of the appellant, as such, they rushed to his Flat and found the appellant and Mst. Khudija there, but he could not reconcile as to what offence under the E&D Rules has been committed by the appellant.
4. We have considered the submissions of both the parties and perused the inquiry proceedings.
The allegation against appellant is that Mst. Khudija was found with him in his Flat, and this fact is not denied and the appellant has been charged on this ground. In reply, the appellant stated that she came to him for taking her to Darul Aman. We have to see as to whether this act of the appellant does amount to misconduct. Under the Government Servants (Efficiency and Discipline)
Rules, 1973, Rule 2(4) ibid defines the misconduct in the following words: "(4) 'Misconduct' means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and, a gentleman and includes any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment promotion, transfer, punishment, retirement, or other conditions of service of a Government servant;"
' When the charge, as framed, is read with the definition of 'misconduct' we are unable to reconcile as to what 'misconduct' the appellant has committed and on what basis the disciplinary proceedings have been initiated against him, when there is neither any allegation of committing assault or misbehaviour by the appellant. Mst. Khudija also had no complaint nor any complaint from her husband.
5. It may also be observed that although the incident of sitting Mst.Khudija in the Flat of the appellant is admitted by both of them having no specific allegation as such raid conducted by the department was unwarranted, and if at all, the department had any grievance, they could have informed the law enforcing agencies for appropriate action in the matter, according to law, but they were not supposed to have assumed the role of police. We have also gone through the inquiry report, the statements of appellant, Mst. Khudija and her husband. The appellant in his reply dated 18-8-1994 stated that on 11-8-1994 while he was going to leave for his native village, Jhamat, Tehsil Jad and was making preparation, therefore, Mst. Khudija, wife of Mr. Muhammad Hafiz Khan came to his Flat and asked him to take her to Darul Aman. It is also stated that the lady is friend of his sister and is well-known to him, therefore, he asked her to sit. Thereafter, the raid was conducted and both of them were found in the Flat. He submitted that he did not commit assault on her. On the other hand, Mst. Khudija -in her statement stated that she was going with the appellant to his village. Though there are contradictory statements, which fact the appellant admitted in his statement made to Question No, 20 before the Inquiry Officer who stated that the plea of Darul Aman was afterthought and he also regretted for this omission. Whatever the case may be, the admitted position is that Mst. Khadija was available in the Flat of the appellant and she came to appellant on her own accord and what was the motive or intention behind that, nothing can be said about it at this stage, nor there is any allegation of any kind. It is also not the case of the respondent-Department that the appellant during the period in question had absconded from duty and went to his house for that purpose, therefore, it cannot be said that this incident occurred during performance of official duty by the appellant. In these circumstances, it was none of the business of the department to have conducted raid on the Flat of the appellant. Although, husband of Mst. Khudija was associated during raid, but he did not make any complaint against appellant.
Looking to the circumstances of the case, if we agree with the contentions of the department then, no civil servant will be safe and could be penalised on such surmises and conjectures, and we are sorry we cannot give licence to the departmental authorities to initiate disciplinary action against a civil servant on such grounds. We are, therefore, of the considered view that the disciplinary proceedings taken against the appellant and the impugned order passed consequent to those proceedings are illegal and contrary to the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973 and are accordingly set aside. The appellant is reinstated into service with all back benefits.
6. Before parting with this judgment, we regret to observe that in spite of amendment in the Civil Servants (Appeal) Rules, 1977, and the law laid down by the Hon'ble Supreme Court in the case, reported in 1991 SCM R 2330, the departmental authorities do not take care of these rules, while deciding the departmental appeals made by the aggrieved civil servants, which are dismissed with a single stroke of pen without disclosing the reasons therefor. For the sake of convenience, we reproduce the relevant extract of the judgment of the Supreme Court, referred to above, and the amendment made in the Civil Servants (Appeal) Rules, 1977.
' SUPREME COURT JUDGMENT " in this case it cannot be said that no reason is mentioned in the rejection of respondent's representations in the order dated 6/9-10-1988. But in many other cases we have been seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law."
' RULE 6(1) (WITH AMENDMENT) OF THE CIVIL SERVANTS (APPEAL) RULES, 1977: "6(1). In the case of an appeal under rule 3, the appellate authority shall consider--
(a) Whether the facts on which the order appealed against was based have been, established;
(b) Whether the facts established afford sufficient ground for taking action; and
(c) Whether the penalty is excessive adequate, or inadequate, and after such consideration shall confirm, set aside or modify the previous order; and the appellant shall be informed of the reasons for passing such order."
We, therefore, expect the departmental authorities to adhere to the law of the land.