1. ' MUNAWAR ALI KHAN (CHAIRMAN).---The appellant Sikandar Ali Shah, was a junior clerk in the office of Mukhtiarkar, Tando Allahyar, and was assigned the duties of second Munshi/Jailer, Sub-Jail, Tando Allahyar when on 17-4-1993, he was served with charge-sheet which reads as. Under:-- "I, Abdul Ghaffar Soomro, Secretary (Revenue), Board of Revenue, Sindh, being the 'Authorised Officer' do hereby charge-sheet you, Mr. Sikandar Ali Shah, Junior Clerk Office of the Taluka Mukhtiarkar, Tando Allahyar on the following acts of negligence, inefficiency and misconduct in discharge of your normal official duties:--
(1) That while posted as Junior Clerk, in Taluka Mukhtiarkar, Tando Allahyar you were also Jailor, Sub-Jail Tando Allah Yar.
(2) That one accused Rahib Thebo son of Muhib Ali Thebo who was involved in heinous crime of murder was remanded in sub-Jail Tando Allahyar in above crime on 15-8-1992 and was to be shifted to Central Jail, Hyderabad on next day i.e, 16-8-1992 through proper Police Escort and Prisons van as required under the instructions of Government of Sindh, Home Department, but you did not do so. Apart from that you had not moved the S.H.O. Tando Allahyar for providing Police Escort and van nor informed the Mukhtiarkar/ Superintendent, Sub-Jail about production of accused before the Court of Ilnd Additional Sessions Judge, Hyderabad on 20-9-1992.
2. ' But you sent the accused Rahib Thebo to the Court of IInd Additional Sessions Judge, Hyderabad, by bus with your own wish and will. Thus, you have violated the instructions of the Home Department issued by them in respect of all those U.T.Ps. Who are involved in heinous crimes.
(3) That during the confinement of said U.T.P. Rahib Thebo, who was hardened and notorious, you had been chit-chatting with him at Sub-Jail in odd hours of night. You were also providing him cash, cigarettes, food and other all kinds of assistance and facilities during his detention.
(4) That as reported by the Sub-Divisional Magistrate Tando Allahyar/Enquiry Officer that on 20-9- 1992 when Police Guard reached within the premises of the Court of IInd Additional Sessions Judge, Hyderabad who brought with them U.T.P. Rahib Thebo to produce him before the above honourable Court, you were present there, soon you came towards them and talked with accused Rahib Thebo in their presence (Police Guard) and assured the accused that he should not be worried and his work will be done today. When Police Guard produced the U.T.P. Rahib Thebo before the Reader of the Court on his call, you enquired about application from Rahib Thebo and also obtained, signature of the accused on that application. Thereafter, Reader of the Court gave them an order of Court addressed to the Superintendent, Central Jail, Hyderabad in respect of transfer of accused Rahib Thebo. Thus, you have helped and provided an opportunity to dangerous, hardened prisoner involved in heinous crime of murder to release him on bail from Jail.
(5) That such negligence on your part was uncalled for and amounts to gross misconduct in discharge of your normal duties and warrants imposition of major penalties as defined in Rule 4(b) of Sindh Civil Servants (E&D) Rules, 1973.
3. ' By reasons of the above, you appear to be guilty of negligence, misconduct and inefficiency in discharge of your official duties and thus have rendered yourself liable for one or more of the penalties as defined in Sindh Civil Servants (E&D) Rules, 1973.
4. ' You are, therefore, called upon to explain in writing within 14 days of the receipt of this charge- sheet as to why disciplinary action as cited above should not be initiated against you. Also state in writing within the same period whether you admit the truth of the allegations, if not, what explanation or defence you wish to offer. It may also be stated whether you wish to be heard in person."
5. ' Appellant submitted his detailed reply to the allegations contained in the above charge-sheet. On receipt of his reply, he was given final show-cause notice dated 4-8-1993, calling upon him to explain why one or more major penalties as defined in Rule 4 of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred as said rules) should not be imposed upon him.
6. Unsatisfied with the appellant's reply to the final show-cause notice the Authorised Officer recommended imposition of major penalty of removal from service on the appellant. Accepting the said recommendations, the Secretary to Government of Sindh, Revenue Department by his order dated 3-2-1994, awarded to the appellant major penalty of removal from service. The appellant challenged the said order in his departmental appeal which was rejected vide letter of intimation dated 10-8-1994 of the Additional Secretary (Revenue) addressed to the appellant.
7. Thereupon, the appellant filed the present appeal before this Tribunal on 30-8-1994.
8. ' Mr. Abdul Sattar was heard on behalf of the appellant and Mr. Azizur Rehman submitted his arguments in support of the case of the official respondents. We also carefully went through the relevant material available in the case file.
9. ' The appellant's learned counsel did not press the appeal on merits but instead prayed for reduction in penalty awarded to the appellant which, in the opinion of the learned counsel, was too harsh in the circumstances of the case. The learned Government counsel did not seriously contest the prayer for reduction in penalty.
10. ' We have given our due thought to the arguments addressed at the Bar. It is an admitted position that enquiry envisaged by the said rules was never held; though the service of charge-sheet on the appellant clearly indicated that the intention of the departmental authorities was to follow the procedure meant for holding enquiry. However, reference to the report of S.D.M., Tando Allahyar, Enquiry Officer both in the charge-sheet and the written statement filed on behalf of the official respondents was with regard to preliminary enquiry which had obviously preceded rather than followed the service of charge-sheet. The mention of the said enquiry in the charge-sheet is by itself a proof that it was held prior to service of the charge-sheet on the appellant. Moreover, both the charge-sheet and the final show-cause notice were silent if the material (evidence) collected during the said preliminary enquiry was ever supplied to the appellant enabling him to give his reply about the same. In this situation unless the allegations contained in the charge-sheet were specifically admitted by the appellant in his reply, they cannot be held to have been proved. On perusal of the appellant's detailed reply, the only allegation that the appellant had admitted was that he had sent the U.T.P. Rahib Thebo, though with proper police escort, to be produced in the Court of 2nd Additional Sessions Judge, Hyderabad on 20-9-1992 by Bus and not by Police Van.
11. Excepting this admission, the appellant has categorically denied all other allegations made against him in the charge-sheet.
12. ' No doubt the appellant's act of sending the said U.T.P. Rahim Thebo by Bus was not without risk and therefore it could be termed as negligence on his part. But somehow no untoward incident occurred and not only the said U.T.P. Was produced before the Court safely but also he reached his next destination i.e, Central Jail, Hyderabad, without any disturbance. Nevertheless the appellant deserved punishment for such act of negligence. But in our opinion the circumstances of the case did not call for inflicting on the appellant the extreme punishment of removal from service so as to deprive him and his family of the very source of livelihood. Although justice has got to be done yet it should be tempered with mercy. We agree with the appellant's learned counsel that the punishment awarded to the appellant, in the above circumstances, was too severe. It should be so reduced as to make it proportionate to the gravity of the charge proved against the appellant. As pointed out above although the appellant did act a bit negligently, yet his negligence did not lead to any serious consequences.
13. ' Keeping the above appraisal in view, we direct that the punishment awarded to the appellant be reduced to the penalty of withholding of one annual increment without cumulative effect. Subject to the said modification in the penalty, appeal is partly allowed with no order as to costs.