1. MUNAWAR ALI KHAN (CHAIRMAN). ---By order dated 9-4-1994 of the Commissioner, Sukkur, appellant, Syed Ghulam Mahdi Shah was reverted from the post of Cypher Assistant to that of Junior Clerk. He was awarded the said penalty on conclusion of the departmental action taken against him. The appellant's reversion order was first passed on 8-11-1993 which was however withdrawn in consequence of the departmental appeal filed by the appellant against the said order. Thereafter, the show-cause notice dated 18-12-1993 was served on the appellant. The said show-cause notice is reproduced as under:-- "Whereas your performance has not been found to be up to the mark and you have committed the following acts of inefficiency and misconduct:--
(1) That for your inefficient and improper working in the post, you have been placed under suspension thrice.
(2) That it has been made out recently that you have connection with notorious criminals and provide shelter to your brother-in-law namely Sultan Shah, who is a notorious criminal and proclaimed offender. Besides you were also detained by the police in the days of former Commissioner Syed Roshan Zamir for such activities.
(3) That you are taking undue advantage of your official position by providing secret information to the criminals.
(4) That you take part in criminal activities i.e. Theft etc. A case of theft vide' F.I.R. No. 108/93 under sections 452, 342, 17/3, dated 19-11-1993 has also been registered in which you have been shown as accused.
(5) That you are not found feasible to be retained on a such sensitive post as of Cypher Assistant.
(6) That your above acts are detrimental to the good order of official discipline and unbecoming of a Government servant.
2. And whereas it appears that you are inefficient disorderly and careless in the performance of your legitimate official duties and the authority is satisfied that it is not necessary to have an enquiry conducted through an Enquiry Officer or Enquiry Committee under sub-rule 3(b) of rule 6 of Sind Civil Servants (Efficiency and Discipline) Rules, 1973.
3. You are, therefore, hereby called upon to show cause within a period of 14 days as to why the major penalty under rule 4(b) of the E&D Rules should not be imposed upon you. In case your reply is not received within the above stipulated period, it will be presumed that you have nothing to say in your defence and ex parte decision will, be taken against you.
4. You may also intimate if you want to be heard in person."
5. The appellant submitted his reply to the allegations contained in the above show-cause notice.
6. Then followed the provisional order dated 19-1-1994 of the appellant's dismissal from service. The appellant submitted his reply even to the said order. Unsatisfied with his reply, the Commissioner, Sukkur confirmed the aforementioned provisional order by his order dated 9-4-1994 hereinabove.
7. The order of his punishment was challenged by the appellant in his departmental appeal dated 26-4-1994 filed before the Senior Member, Board of Revenue. It was, however, rejected by order- dated 25-10-1994 which has been challenged in the present appeal filed on 24-11-1994.
8. We heard Mr. Walid Ansari for the appellant and Mr. Azizur Rehman on behalf of the official respondents. We also perused the relevant documents.
9. The appellant's learned counsel did not press the appeal on merits but preferred to confine his submissions to the prayer for curtailment of the penalty. The learned Government Counsel did not seriously oppose the said prayer. Of course the appellant's learned counsel did not press the appeal on merits. But for the purpose of deciding about the desirability of curtailing the penalty, it would be necessary to examine the nature and gravity of the charges made against the appellant and furthermore if the charges were proved or not. The perusal of the show-cause notice would show that all the charges were of general nature. Since no enquiry was held, the only material available to the Authority to determine the proof or otherwise of the charges, was the appellant's reply to the show-cause notice. Therefore, unless the charges were admitted by the appellant, there was no other evidence for holding them as proved. In para one of the appellant's reply it was admitted by him" ---------I am Communication and Security Assistant and not telephone operator. The telephone operating job was thrusted upon me and forcibly directed to attend to the Commissioner, Sukkur Division, Sukkur and at his residence. Due to long the duty in odd hours working, there could be any lapses but it was not inefficient working on my part. However, these temporary orders were withdrawn on the said consideration. This was my extra duty and I cannot be blamed for it ------" It would be clear that the appellant admitted to the negligence and lapses on his part in performing the telephone operator's job which according to him was trusted upon him as an additional burden. Such admission by the appellant could not be overlooked and, therefore, he deserved to be punished for the same.
10. However, the point for our consideration was whether the penalty of reversion from the Assistant's post to that of junior clerk awarded to the appellant was justified in the circumstances of the case.
11. The first objection against the said penalty was that since he was appointed to the Assistants post by direct recruitment, he could not be reverted from that post to that of junior clerk. Two orders of the Commissioner, Sukkur, one dated 28-5-1985 whereby appellant was appointed as Communication and Security Assistant on temporary basis and the other dated 3-1-1990 by which his services as the said Assistant were regularised, clearly indicated that the appellant's appointment to the Assistant's post was made not by promotion but by initial recruitment. The departmental representative who was present in the Court and was assisting the learned Government Counsel also frankly conceded that the appellant was not promoted to the post of Assistant. This being the position, the appellant's reversion from the Assistant's post, in effect, amounted to the termination of his services as such Assistant. It has been repeatedly held by the superior Courts that such reversions were not legally permissible. As such the penalty of reversion could not be maintained for the above reasons. Moreover, the charge proved by the appellant's own admission was not so grave as to call for imposing of major penalty.
12. In view of the above discussion we direct that penalty of reversion awarded to the appellant be converted into that of withholding of to annual increments for to years. Subject to the said modification in the penalty, the appeal is partly allowed with no order as to costs.