' ROSHAN ALI MANGI (MEMBER).---The appellant Mr. Amir Hamza, ex-S.S.P., Northern Areas Police, is aggrieved by the order dated 23-5-1996, whereby he has been dismissed from service. He filed departmental appeal against the impugned order, but even on expiry of 90 days statutory waiting period, the same has not been responded to. Hence this appeal.
2. The brief facts of the case are that the appellant joined Police Service of Northern Areas, as an Inspector in 1972, and ultimately reached the position of Senior Superintendent of Police and got move-over in B-19.
3. Events started against the appellant with the speech of his wife in the Northern Areas Council, wherein she complained against the Chief Executive (the Minister of N.A. And Kashmir Affairs) for neglecting the Members of the Council, while in his presence, when he was presiding over the meeting on 24-7-1995.
4. Three days thereafter the appellant's wife made a speech, he was transferred on 22-7-1995 from the post of S.S.P., Ghizer to KANA Division, without assigning him any job. No one was appointed in his place that he vacated at Ghizer. This transfer according to the appellant was to pressurise appellant's wife not to demand the rights of the citizens of Northern Areas.
5. Since this did not bring out the required results, according to the appellant, the persons in powers started to collect material against him. His record from the office of Ghizer was obtained and scrutinized to dig out some fault to enable the authorities to proceed against him for the same. But nothing came out of that.
6. On 4-8-1995, the Prime Minister visited Skardu. She wanted to meet Lady councillor. But she was informed that no lady councillor could be found available. This was done to prevent the appellant's wife from meeting the Prime Minister. Prime Minister returned to Islamabad without meeting the lady councillor. The appellant's wife, therefore, sent a Fax message to Prime Minister on 7-8-1995 narrating all the circumstances and subsequently requesting her (P.M.) for interview. Besides, this appellant's wife sent a message to Prime Minister through fax for interview on 15-8-1995, 19-8-1995 and 21-9-1995 but all these were prevented to reach the Prime Minister.
7. The appellant was transferred from the KANA Division and posted as a Deputy Secretary, Food and Agriculture, Northern Areas at Secretariat Gilgit vide order dated 5-11-1995. This deprived him of special pay/allowance admissible to S.S.P., on one hand and vide application (sic) Held experience was likely to commit mistake in the new Secretariat, on the other, so that he could be proceeded against, on committing some mistake. As such his transfer was mala fide.
8. However, the appellant complied with the orders of high-ups and submitted his joining report on 19-11-1995, after availing of the joining period.
9. However, since the appellant was being harassed, according to him, continuously, he therefore made a complaint in his joining report. He had observed therein that he was being treated unjustly, and raised some Constitutional issues, relating to relationship between the Northern Areas and the Federation of Pakistan. He had also stated in joining report that there was no representation of N.A.
In the Parliament.
10. The appellant joined the Food Department, but he was neither given any assignment, nor the office or any stationery, or furniture. No accommodation either was provided to him. This all according to him, was mala fidely done. Resultantly the appellant complained on 28-12-1995 against this treatment of authorities, and further requested them to post him back as S.P. To District Ghizer, the post which was lying vacant since his transfer to the KANA Division.
11. The appellant was issued show-cause notice on 7-12-1995, which was received by him on 17-12- 1995. In this show-cause notice he was alleged to have made certain statements, vide his joining report, which amounted to misconduct. Therefore, he was asked to show cause why he should not be dismissed from service.
12. The reply to show-cause notice, was made on 26-12-1995 in which Constitutional position was reiterated and it was explained that it was in the interest of Northern Area and Pakistan, if there was fair dealing between the two. Besides this the appellant requested for his personal hearing. The appellant also took the position that whatever was contained in his joining report it did not amount to misconduct, hence there was no justification for proceeding against him under E&D Rules, 1973.
13. Without receiving reply to show-cause notice, and without affording him the personal hearing, the appellant was suspended from the service on 28-12-1995. On his suspension, appellant's wife sent a fax message to Prime Minister on 1-1-1996 for interview to explain appellant's case. However, the appellant was dismissed from service vide Office Order dated 23-5 -1996, communicated to him through the Chief Secretary, Northern Areas. On 11-6-1996, the appellant made a request that he might be provided with the original letter of his dismissal from the service issued from the Office of the competent Authority i,e, Prime Minister, whom he considered to be the competent Authority.
14. The above application was not responded to, therefore, the appellant made an appeal/review petition against the impugned order on 20-6-1996 explaining all the circumstances of the case, to which no response has been made so far, even after the passage of mandatory period of 90 days.
15. Pleading the case of the appellant, Mr. Shah Abdur Rashid, his learned counsel, submitted that the impugned order was mala fide. He stated that the facts constituting mala fide was given in details in the memo of the appeal. The mala fide order, pleaded the learned counsel, was without jurisdiction and ineffective, and could not be validated even by Constitution of Pakistan. In this regard he quoted rule 6(2) of the Service Tribunals (Procedure) Rules, 1974.
16. Secondly, the learned counsel argued that the appellant did not commit any misconduct on the grounds of contents of his joining report, reproduced in show-cause notice. The said contents do not come under the definition of misconduct given in the Government Servants (E&D) Rules, 1973.
17. Thirdly under Article 19 of the Constitution of Pakistan every citizen has a right of freedom of expression. If the appellant is treated as defecto subject to the laws of Pakistan, then he has a right to freely express his views. In his joining report, the appellant has expressed his views as of right. By terming appellant's expression of Constitutional and legal opinion as misconduct, the Authorised Officer has offended the Constitution to which he is subject.
18. Fourthly, the appellant was not given meaningful personal hearing either by Authorised Officer or by the authority and as such he has been condemned unheard.
19. Fifthly the joining report was not intended to be made public. It was for limited purpose i,e, for explaining the legal position. It does not offend any rule of conduct and as such was not actionable.
20. Lastly, the penalty of dismissal from the service was highly excessive. Such a penalty and penalty of removal or compulsory retirement are awarded in cases of corruption, embezzlement or conduct involving moral turpitude. .21. With these submissions it was prayed to accept the appeal and set aside the impugned order, and direct the respondents to reinstate the appellant with all back benefits.
22. The respondent's side have also filed their preliminary objections and resisted the appeal on the grounds that:
(i) the contents of the speech of the appellant's wife did not only contain derogatory remarks against the Minister for KANA, who is the Chief Executive as well as the Inspector-General of Police of Northern Areas, but also were likely to generate hatred against the non-local officers of that area. The speech delivered it was contended was presumably written by the appellant as his wife was unable to read it. Even otherwise, it was contended, it (speech) had no bearing on the instant case.
(ii) The appellant was directed to undertake protocol/security duties in connection with the visit of the President of Pakistan. In response he sent a wireless message, which did not only contain the derogatory language but also confirmed that the appellant lacks discipline, decency and spirit of subordination as required for a disciplined force. The appellant refused to proceed on to Shandur where he was required to undertake his protocol duties. A number of complaints were received by the N.A. Administration regarding his corruption, bad public relations and involvement in local politics.
(iii) His transfer to KANA Division was made with the approval of the Minister of KANA, who was empowered under Schedule VI of the Northern Areas Rules of Business, 1994, as such legal.
(iv) His posting as S.P. In Ghizar was found detrimental to the discipline of Police Force. He was, therefore, transferred in the public interest. However, the appellant was posted as Deputy Secretary in the same grade with a view to rehabilitate him providing him a fresh start by the Chief Executive, N.A.
(v) The appellant challenged the legal authority of the Pakistan Government to govern Northern Areas and declared his own right to refuse to obey any law extended to that region by the Government of Pakistan. This amounted to an act of ' misconduct' in terms of rule 2(4) of the Government Servants (E&D) Rules, 1973.
(vi) The show-cause notice was issued to the appellant in accordance with Government Servants (E&D) Rules, 1973 under the signature of ' Authorised Officer' as such was perfectly legal.
(vii) In his reply to show-cause notice the appellant;
(a) challenged the authority of the Minister for KANA to issue such a notice.
(b) challenged relationship of N.A. With Federal Government.
(c) levelled baseless and irrelevant allegations against the Minister as well as Chief Secretary. This all was unbecoming of a disciplined and responsible officer.
(viii)The penalty of dismissal was imposed on the appellant with approval of the "Authority" and communicated under regular office procedure. All this was in accordance with law.
23. The learned counsel for the respondent further informed at the Bar that Status of Northern Areas is sub judice before the Supreme Court of Pakistan. As such it cannot be discussed.
24. As regards, administration of N.A., it was informed that its administration is carried out under N.A. Rules of Business, 1994 and Legal Framework Order, 1994.
25. The scrutiny of the record of the appellant, by the C.P.O. Was a normal administrative function.
As such his allegation that the said scrutiny was mala fide, was denied.
26. It was controverted, if the appellant was not afforded the opportunity of personal hearing. He was heard personally by authorised officer and reiterated his position as taken in the charge assumption report, as well as in his written reply to the show-cause notice.
27. With these submissions, it has been prayed, since the appellant has not only committed "Misconduct" but is also totally unrependent, the appeal therefore, be dismissed, and impugned order upheld.
28. We have heard the parties at length and gone through the record.
29. In our opinion, the appellant appears to be a political activist. His all actions seem to have been generated by his political beliefs. All his outburst seem to have been due to his political belief, that locals are not being treated by the Government of Pakistan fairly and evenly. They are not being given the representation at the National level. His ideas and actions seem to have been coloured by this situation.
30. Although it is right, that Constitution (Article 19) bestows upon the citizens of Pakistan including those of the N.A., the right of speech and freedom of thought and views as pointed out by the learned counsel for the appellant, nevertheless, the appellant cannot be made immune from limitations imposed under Government Employees Conduct Rules, 1964, as countered and rightly by learned Standing Counsel, being a regular Government employee.
31. The perusal of the contents of his joining report as well as the wireless message that appellant sent in response to instructions given to him by higher authority to make security protocol arrangement, in connection with the visit of President of Pakistan, reveal, that instead of carrying out the orders of his senior, he made observations/comments which had a political tone and were irrelevant. This shows the insubordination of the appellant and unbecoming behaviour of a responsible officer. He no doubt has every right to have any political belief, but when he joins the Government his behaviour should be within the domain prescribed under the prescribed rules. Whenever he breaks them, he would be liable to be proceeded against.
32. Whether such a behaviour fall within the ambit of 'Misconduct' under the rules, we propose to quote the same as under:-- '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, ........
33. Judged on the criteria of the type of behaviour that fall within the scope of "misconduct" the type behaviour of the appellant without any doubt falls within the contents of misconduct, as is revealed from above. Being a Government servant, he therefore, was not supposed to raise political/Constitutional issues under the above rule. Nor was he supposed to disobey the lawful instructions/orders of his superiors, or adopt behaviour unbecoming of an officer or gentleman.
We, therefore, feel sorry not to subscribe to the views of the learned counsel for the appellant, that type of behaviour of the appellant did not fall within the domain of misconduct.
34. We are of the opinion that issues /objections raised and feeling expressed by the appellant are clearly coloured and created by his political behaviour, which being a Government servant he was not supposed to do so under the Government Servants Conduct Rules, 1964, as also rightly pointed out by the learned Standing Counsel. These feelings and attitude, generated by his political behaviour would obviously prejudice the Government interest and would also adversely affect the behaviour of his other Government employees/his colleagues. Such a behaviour is uncalled for and undesirable and prejudicial to Government interest, and cannot be condoned for any reason. .
35. However, the learned counsel for the appellant has submitted that the penalty of dismissal from the service was highly excessive. According to him such a penalty and penalty of removal or compulsory retirement are awarded in cases of corruption, embezzlement or conduct involving moral turpitude. As such, the penalty was not in consonance with the magnitude of his guilt.
36. We are of the opinion that type of his behaviour which also contained his disobedience of his superior and non-compliance of their orders do fall within the domain of misconduct, on which the major penalty can be imposed upon an employee of the Government, and we feel, that he has correctly been penalised. Subsequently we also feel that to err is human and to forgive divine. We are conscious that one should not be pushed against the wall, which might turn the person to become extremist. So, taking the lenient view in the circumstances of the case, we convert his penalty of removal from the service into a minor penalty of withholding of three increments, without cumulative effect. He shall be reinstated into the service with effect from the date he was removed. His period of absence from duty from the date, he was removed from service to the date, when he will rejoin his service be treated as leave due.
37. Ordered accordingly, with no order as to costs.
38. Parties be informed.