' NOOR MOHAMMAD MAGSI (MEMBER).---Engineer Jameel Ahmad Malik, Works Manager (Civil), Pakistan Ordnance Factories, Wah Carat. Has filed this appeal against the penalty of compulsory retirement imposed on him by notification dated 26-4-1995, as a result of disciplinary proceedings taken against him under the Government Servants (Efficiency and Discipline) Rules, 1973.
2. The brief facts of the case are that the appellant joined Pakistan Ordnance Factory as Assistant Works Manager (Civil) (B-17) on 6-5-1978. In 1991 when he was working as Works Manager (Civil) he submitted his nomination papers to contest the election of President of P.O.F. Officers Association.
Accordingly he circulated election manifesto to the members of the Association vide his letter dated 31-10-1991. According to him the high-ups in the Pakistan Ordnance Factories were against the appellant's becoming President of the Association and they wanted him to withdraw in favour of a particular person, but the appellant did not agree as a result of which the elections are alleged to have been postponed. The appellant not only opposed the postponement of the election but also criticised the management in this behalf. In order to deprive him to continue his election campaign, the Management transferred him to Karachi.
3. The appellant protested and sought intervention of the then Prime Minister and President of Pakistan by holding a press conference which was reported in Daily Muslim on 20-11-1991. He also challenged his transfer order in the High Court which was stayed by the High Court vide its order dated 18-11-1991 and this order was confirmed on 4-12-1991. However, on appeal by the Government the Supreme Court set aside the High Court's order dated 4-12-1991 holding that the High Court had over-stepped its jurisdiction in interfering with the transfer order. Thus, the elections were held on 25-1-1992 in which the appellant was elected as the President of the P.O.F. Officers Association.
4. The appellant before and after the Presidential Election, held press conference and what he says bona fide in good faith to express his apprehension and views which is admissible under the law.
He also tried to justify holding of press' conference and issuing pamphlet in Urdu and English considering it, as his right being an office-bearer of the P.O.F. Officers Association, as it was done by other office-bearers of the Association e.g. Mr. Abdul Qadeer, Ex-President, P.O.F. Officers Association held a press conference which was reported in Daily Nawa-i-Waqat on 7-10-1989, Mr. Izhar-ul-Hat, Finance Adviser, P.O.F. Board's article was published in Daily Jang on 6-8-1992 and even President and General Secretary, P.O.F. Workers' Association, addressed a press conference on 16-11-1993.
5. A charge-sheet was served on the appellant on 26-1-1992 alongwith statement of allegations by the Secretary, Defence Production Division. The appellant in his reply to the charge-sheet denied the allegations and Lt.-Col. Muhammad Sadiq was appointed Inquiry Officer to conduct regular inquiry but on the request of the appellant, the Inquiry Officer was changed and Mr. Mukhtar Ali Malik, Deputy Secretary was appointed to hold inquiry against the appellant, who found him guilty of charges Nos.2 and 3 and the appellant was served with a final show-cause notice dated 27-11- 1993. Alongwith copy of inquiry report. The appellant thereafter received notice dated 18-7-1994 for personal hearing with the direction to ensure his presence in the office of Secretary, Defence Production Division at 8-11 hours on 31-7-1994. Meanwhile the appellant filed Writ Petition No,788/94 against the disciplinary proceedings taken by the department, before the High Court. The writ petition came up for hearing on the same date i,e, 31-7-1994. High Court adjourned the case to 7- 8-1994 with the direction that "meanwhile disciplinary proceedings against the petitioner shall not be finalised". However, the interim injunction was vacated by the High Court on 7-8-1994. Finally by notification dated 26-4-1995, the appellant was awarded major penalty of compulsory retirement to which he filed departmental appeal on 20-5-1995 to the President of Pakistan and failing to get any response within the statutory period of 90 days. He has come up in appeal to this Tribunal under section 4 of the Service Tribunals Act, 1973.
8. We have heard the appellant at length. His main contention was that the order of major penalty of compulsory retirement was not passed by the competent Authority i,e, the Prime Minister. He argued that the charge-sheet and show-cause notices were issued by Secretary, Defence Production Division contrary to rules as in his case Secretary, Defence was the Authorised Officer and as such the whole proceedings were illegal. On merits he admitted the charge but his contention was that it did not amount to misconduct.
9. The respondents have contested the appeal by filing comments wherein legal objection has been raised that the appeal suffers from non-joinder of necessary parties. It has also been stated that disciplinary proceedings against the appellant were taken in accordance with the rules, in as much as that appellant was served with a charge-sheet; proper inquiry to the charge was conducted by Inquiry Officer wherein the appellant was given opportunity of cross-examining prosecution witnesses and he was held guilty charges Nos.2 and 3; he was served with a show- cause notice along with copy of inquiry report and afforded personal hearing, where after the competent Authority passed the impugned order of compulsory retirement and there is no illegality in the proceedings. Dr. G.S. Khan learned Advocate appearing for the respondents reiterated the stand taken in the objections and further submitted with regard to controversy raised by the appellant about the appointment of Authorised Officer. It was argued that the Daily Order referred to by the appellant, stands impliedly repealed because P.O.F. Does not have the legal authority to interpret, alter or lay down any terms and conditions of service of civil servant, and it cannot issue statutory notification by itself. He relied on SRO No, 480(1)/74, dated 4th September, 1974 read with SRO No, 143(1)/87, dated. 4th November, 1978 and stated that these Notifications have never been repealed till date. He then stated that above all superior and basic Notification No, SRO 615(1)/78, dated 5-7-1979, as amended from time to time, clearly says that the Secretary/Additional Secretary shall be the specified officer in relation to 'Government servants employed or serving in a post or belonging to a service or cadre, administratively controlled by the Ministry or Division. That being statutory notification overrides any instruction/daily Order issued by the P.O.F. Referring to the Rules of Business he stated that since the Pakistan Ordnance Factory is under the administrative control of the Defence Production Division, therefore, the Secretary or Additional Secretary of that Division would be the Authorised Officer in respect of the officers of the P.O.Fs. Under Notification, dated 5th July, 1979.
10. We have considered the submissions of the parties and perused the record. That dispute about the Authorised Officer is to be resolved first. Under the statutory Notification No, SRO 1180(1)/74, dated 4-9-1974, the President designated the Secretary, Defence Production Division as the Authorised Officer under the Government Servants (Efficiency and Discipline) Rules, 1973 in respect of civilian employees in Grades 17 to 20 whereas Prime Minister was the Authority. This notification was amended by a corrigendum vide SRO 143(1)/78, dated 4th February, 1978 to the extent that under the column Authorised Officer Additional Secretary was added where there is no Secretary and the earlier notification dated 4-9-1979 still holds good. The appellant has relied on the Ministry of Defence U.O. No, 3/4/73/136-D-13 (Regs)/77, dated 29-1-1977 and contends that by rescission of the earlier orders, dated 9th October, 1976 the Secretary, Ministry of Defence had become Authorised Officer in the case of the appellant. We are not inclined to accept this argument as the powers could be delegated by the President only by issuing a statutory notification and not by anybody else. Under Rules of Business the Administrative Division in respect of Pakistan Ordnance Factories is the Defence Production Division and for the purpose of designation of the Authorised Officer as notified vide S.R.O., dated 4th September, 1974, is the Secretary, Defence Production Division and in the case of the appellant he rightly exercised the powers of the Authorised Officer and we are in agreement with the submissions of the learned counsel for respondents on this issue.
11. The second legal objection raised by the appellant that the impugned order of compulsory retirement did not have the approval of the competent Authority, i,e, the Prime Minister. We have gone through the file and it reveals that a summary for the Prime Minister was prepared by the Secretary, Defence Production Division with the approval of the Minister and it was sent to the Secretary, Establishment Division vide U.O. Note, dated 1st December, 1994. The case was examined by the Secretary, Establishment Division and he also endorsed the proposal for imposition of penalty of compulsory retirement on the appellant. Finally the competent Authority, viz. The Prime Minister awarded the penalty of compulsory retirement and this approval of the Prime Minister was conveyed by the Deputy Secretary, Prime Minister's Secretariat vide U.O. Dated 23-4-1995 to the Secretary, Establishment Division who on 24-4-1995 passed on the papers to the Additional Secretary, Defence Production Division. Therefore, we are of the view that the penalty of compulsory retirement imposed on the appellant had have the approval of the Prime Minister and the objection of the appellant is not tenable.
12. On merits the appellant was charged for the following:--
(i) Chief Engineer, Works vide his Letter No, 98284/Admn./CEW, dated 10th November, 1991 relieved you of your duties in C.E.W. Group with effect from 10th November, 1991 (A.N.) so as to report for duty in O.F.L.S., Karachi. This order was handed over to you by SE/POF Sanjwal in his office at that time but you refused to accept this order and slipped away from the office without informing about your further engagement. Again you were asked vide Letter No, 1800/4/SE/SJI, dated 11th November, 1991 to hand over your charge and report to take up new assignment to O.F.L.S., Karachi but you did not care. This letter was delivered to you at your residence at Sanjwal through Naib-Qasid, Muhammad Akram. You opened the sealed envelope, read the contents of the letter but did not receive and sent it back. On 16th November, 1991 you were served with a final directive bearing No,1800/4/SE/Sanjwal, dated 16th November, 1991 asking you to relinquish the charge but in spite of repeated requested from SE/POF Sanjwal you neither came to office nor received the above letter recorded in the despatch book. You have, therefore, committed an act of insubordination falling within the purview of misconduct as enumerated in the Civil Servants Act, 1973. (A copy of the report of SE/Sanjwal is enclosed).
2. On 18th November, 1991, you addressed a Press Conference unauthorisedly contents whereof were published in "The Daily Muslim" (page 6) on 19th November, 1991. In this Press Conference you baselessly alleged the interference of P.O.Fs. Top management in the affairs of association whereas election was absolutely an association affair and had nothing to do with P.O.Fs. Top Management. You also alleged that the Chairman, P.O.Fs. Board was using the present office- bearers of the association to influence the Defence Ministry to cancel his transfer to Steel Mill, 'Karachi. You also appealed to the President and Prime Minister of Pakistan to intervene and effect the transfer of the Chairman, P.O.Fs. Board. All of your above acts are prejudicial to good order and service discipline and contrary to Government Servants (Conduct) Rules, 1964. (A photocopy of the Press Conference is enclosed).
3. In your election campaign you widely circulated two pamphlets in Urdu and English (copy enclosed). In your Urdu pamphlet dated Nil addressed in general to all P.O.Fs. Officers, you not only criticised the senior officers but also used foul and derogatory remarks against them, details whereof are as under:--
4. You levelled, false allegation against Mr. Abdul Qadeer, Member, Production Coordination, P.O.F.
Who was then Acting Chairman, P.O.Fs. Board and President of the present Class-I Officers Association that he in connivance with Election Commission/Secretary-General, Pressed Mr. M.
Afzal Janjua, C.E.W. And Mr. Rana Shabeer Ahmed, MD/A.A. To file their nomination papers for Presidentship.
5. You levelled allegation about dishonest/mala fide intention role of Mr.A.G. Baig, MD/POF Sanjwal (BS-20) and Mr. Basharat Malik, Director/R&D (BS-20).
6. You levelled unfounded allegation about out-of-turn promotion given to Mr. Basharat Malik.
7. You dubbed Mr. Basharat Malik and Mr. A.G. Baig as yes men of his master's voice.
8. In your English Pamphlet, dated 31st October, 1991 you criticised the very role of Field Intelligence Unit of P.O.Fs. And posting of Army Personnel to P.O.Fs. And passed the following uncalled remarks:-
(i) Attitude of the F.I.U. Towards P.O.Fs. Officers and other employees of this organisation is humiliating and disgraceful.
(ii) P.O.Fs. Is our own parent department which is under the direct influence of outsiders i,e, temporarily posted Army Personnel and F.I.U. Officers.
(iii) These outsiders, who are a few in number, pose and behave as the sole custodians of this organisation. At regular inquiry the Inquiry Officer exonerated the appellant of the first charge but found him guilty of charges Nos. 2 and 3 and his finding in relation to both the charges are also reproduced below:- CHARGE NO. 2 ' The accused Officer cross-examined the D.R. And put question on the issues. The A.O. Contended that he has every right to make a press statement under Article 19 of the Constitution of Pakistan, 1973, Exhibit as DW-1. The D.R. Has taken the shelter of Rule 22 of Government Servants (Conduct)
Rules, 1964, which debars Government servants from making any publication of information and public speeches capable of embarrassing the Government. The rule further elaborates as under:-- "No Government servant shall in any document, or in any communication made to Press over his own name, or in any public utterance or television programme or in any radio broadcast delivered by him, make any statement of facts or opinion which is capable of embarrassing the Government."
' Article 19 of the Constitution states that "every citizen shall have the right to freedom of speeches and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order decency or morality, or in relation to contempt of Court, (commission of) or incitement to an offence".
' The A.O., in his reply, dated 20th April, 1992 Exh. C-3 to the chargesheet did not refute the charge but tried to justify this act of his by saying that holding of a Press Conference is his fundamental Constitutional right, stated in Article 19 of the Constitution. He also referred/quoted examples/precedents, as analogy of the Heads of Departments such as Chief of Army Staff and others who addressed press conferences on different occasions. This plea is untenable as it has no moral, ethical or legal basis or strength in that the relevant aspect would be the subject-matter of the Press Conference and not the mere principle of being permitted to address one.
' The Head of Department, can address a press or give statement to the press Exh. C-13 because they are known as spokesman, other civil servants are, however, debarred from making any statement before the press without the express permission of the competent Authority in this no such permission was sought or accorded. The civil servants are governed by the Civil Servants Act, 1973 and rules made thereunder. Apart from this P.O.F. Class 1 Gazetted Officers Association is governed by Government Letter bearing No,,,12/66/27770/D/P-9(0), dated 27th July, 1966 Exh. C-14, para. 1(d) of the letter provides that the Association will not directly or indirectly communicate with the press.
' Although civil servants, are citizen, have fundamental right as enumerated in the Constitution but they are governed by the Civil Servants Act, 1973 and rules made thereunder. As such civil servants are required to abide by the abovesaid rules. Moreover, Article 19 of the Constitution spells out norms and parameters to be adhered to and from which no deviation is permitted (para. 26 above refers). The claim of the A.O. Entitling him to make a Press Statement or addressing a Press Conference as a right is not supported by the provision of the Constitution. Therefore, the charge stands established.
CHARGE NO. 3:
(a) The A.O. In spite of repeated verbal requests by me did not confine himself to the charges and raised a number of extraneous and irrelevant issues to confuse the proceedings.
(b) The A.O. Did not deny addressing Press Conference on 18-11-1991 and publishing/circulating of the pamphlet among the offices of the P.O.F.
GENERAL DISCUSSION: ' The inquiry against the A.O. Started on 27-6-1992. The A.O. Was given maximum opportunity to defend his case. On number of occasions the proceedings of the Court of inquiry had to be suspended due to the incorperative behaviour of the A.O. The A.O. Tried his best to hamper the inquiry proceedings and created unhealthy atmosphere during the cross-examination by asking irrelevant questions and not confining 'himself to the charges levelled. His attitude throughout was uncooperative and unbecoming of an officer and gentleman.
' D.R. Remained on leave due to his illness from 23-8-1992 to 3-10-1992 (Exh. C-15). During the illness of D.R. The A.O. Was asked to join his duties back to O.F.L.S., Karachi and he was finally relieved from Karachi with effect from 8-11-1992 vide G.M., 0. F. L. S., Karachi's letter dated 8-11-1992 (Exh. C-16). He reported at Wah Cantt. On 19-11-1992 after availing joining period, so the proceedings had to be suspended from 23-8-1992 to 24-11-1992. D.R. Was again allowed leave due to his illness from 31-3- 1993 to 16-4-1993 (Exh. C-17). The proceedings thus had once again to be suspended from 31-3- 1993 to 16-4-1993. The A.O. Was assigned certain important job to handle by P.O.F's administration.
P.O.Fs. Administration therefore requested to reschedule the proceedings from 09-00-11-00 hrs Exh.
C-18. The A.O. Also remained on leave from (i) 24-2-1993 to 22-3-1993, (ii) 23-6-1993 to 26-9-1993,
(iii) 1-8-1993 to 31-8-1993 (Exh. C-19). D.R. And A.O. Were granted leave by the administration without even asking informing the Inquiry Officer, which is in contravention of normal procedures.
This has resulted inordinate delay in the completion of the inquiry.
' It would be pertinent to state that the A.O. In his reply, dated 20th April, 1992 to charge-sheet, dated an 26th January, 1992 has denied the allegations/charges regarding receiving of Chief Engineer, Works Letter bearing No, 98284/Admn/CEW, dated 10-11-1991 but has not denied/refuted the charges. Pertaining to addressing of Press Conference on 18-11-1991 and distribution of pamphlets in Urdu and English. {{TABLE}} CONCLUSION .
Charge-I Not proved Charge-II Proved Charge-III Proved." {{TABLE}} ' The appellant has not agitated any grievance or malice against the appointment of Mr. Mukhtar Ali Malik as Inquiry Officer and despite the fact that his conduct and attitude in the inquiry proceedings was not becoming of a good officer, he also did not ask for the change of the Inquiry Officer. Therefore, we are of the view that the Charges Nos. 2 and 3 stood proved against the appellant. Now we have to see as to whether these charges having been proved against the appellant amount to misconduct within the meaning of Efficiency and Discipline Rules. The definition of misconduct as given in rule 2(4) of the Government Servants (E&D) Rules, 1973 is as under- "' Misconduct' means conduct prejudicial 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; and ' We would also like to reproduce Rule 22 of the Government Servants (Conduct) Rules and it read as under:-- Publication of information and public speeches capable of embarrassing the Government.--No Government servant shall, in any document published, or in any communication made to the press, over his own name, or in any public utterance or television programme or in any radio broadcast delivered by him, make any statement of fact or opinion which is capable of embarrassing the Government: ' Provided that technical staff (both gazetted and non-gazetted) may publish research papers en technical subjects, if such papers do not express views on political issues or on Government policy and do not include any information of a classified nature.
13 The appellant publicly criticised Management, the Army Officers and Officers of F.I.U. Using derogatory and insolent language which was given wide publicity through Newspapers to create unrest and hatred amongst the civilians and the Army Officers of the P.O.F., which is a sensitive organisation, for which no civil servant can be given a licence to do so. The terms and conditions of the civil servants are regulated under the Civil Servants Act, 1973 and they are bound to seek redress of their grievances within the four corners of law before a competent forum and not in the way which the appellant resorted to and he did commit misconduct. The Inquiry Officer has also taken exception to the discourteous attitude of the appellant and unhealthy atmosphere created by him during the inquiry proceedings and it goes to establish as if the appellant considered him superior to everybody and even above the law of the land.
14. Such a matter had been cropped up in two Appeals Nos. 231(R)/92 and 230(R)/92 filed by M/s. Nawab Khan and Abdul Hafeez who had been awarded the punishments of compulsory retirement and dismissal from service respectively and the allegations against the appellants were, inter alia, using objectionable language of sarcastic and abusive and levelling of serious allegations against the senior officers of the department which amounted to misconduct and uncongenial to the unit discipline. The Tribunal converted the penalty of dismissal from service to that of compulsory retirement and Maintained the punishment of compulsory retirement passed against one of the appellants. Both the appellants challenged the judgment of the Tribunal before the Supreme Court in the case reported in PLD 1994 SC 222 (Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others). In those appeals disciplinary proceedings against the appellants were initiated under Rule 5 of E&D Rules, by way of summary procedure and no regular inquiry was conducted. The Hon'ble Supreme Court while maintaining the judgments of the Tribunal held as under:- "9. In the instant cases, the appellants had admitted that they had addressed their letters to higher authorities bypassing the normal channel. The contents of their letters also indicate that they have used highly insolent and derogatory language against their officers. The appellant in Civil Appeal No, 313 of 1993, Abdul Hafeez instead of repenting over his above conduct, repeated the same objectionable language in his reply to the charge-sheet and the show-cause notices. In our view, no factual controversy of the nature was involved which warranted holding of a regular inquiry for recording evidence. The appellants were informed by the 'Authorised Officer' after receipt of their replies to the above charge-sheets/show-cause notices of the action which he proposed to take against them. In this view of the matter, there has been substantial compliance of clause (iii) of sub-rule (i) of Rule 5 of the Rules. The appeals have no merits and the same are, accordingly, dismissed. However, there will be no order as to costs."
' But in the instant case the competent Authority had been rather more considerate in resorting to Rule 6 by holding regular inquiry so that the appellant could be able to put up his defence in rebuttal to the allegations against him in spite of the fact that the appellant had admitted the charge of misconduct. In these circumstances, we are of the view that there is no irregularity in the inquiry proceedings and the appellant did commit misconduct and he was not a fit person to be retained in service of a sensitive organisation. The competent Authority has rightly passed the impugned order whereby he has been awarded the punishment of compulsory retirement and no exception can be taken to it.
15. We find no merit in the appeal and it is dismissed with costs.