' MUHAMMAD RAZA KHAN (MEMBER).---The appellant was a Driver, posted at Faisalabad, but ordered to perform duty at Regional Office of Directorate of Intelligence and Investigation, Lahore.
He was proceeded against under the Efficiency and Discipline Rules. On 12-9-1995 he was placed under suspension and a show-cause notice was issued wherein the appellant was charged for misconduct on three charges. Firstly that he was directed vide order dated 31-7-1995 to perform duties with the Deputy Director, Customs Intelligence, Lahore, but instead of performing the said duty he preferred transfer to some other station. Secondly, that the appellant proceeded to Faisalabad on 3-9-1995 for getting salary but remained absent on 4-9-1995 and sent an application for leave on 5-9-1995. Thirdly, that the perusal of his personal file shows that he was habitual offender of getting leave without permission. The appellant filed reply on 20-9-1995 supported by documents. However, this reply was found unsatisfactory and a final show-cause notice was issued and in addition to the charges mentioned in the first show-cause notice, the appellant was also charged for some additional instances amounting to misconduct. The appellant requested for clarification with regard to the date on which a show-cause notice was reportedly earlier issued. Thereafter, the appellant was asked to appear for personal hearing on 17- 10-1995 and finally vide impugned order dated 29-11-1995 the appellant was dismissed from service. After filing the departmental appeal on 21-12-1995 and waiting for statutory period of ninety days the appellant has preferred the present appeal under section 4 of the Service Tribunals Act, 1973.
2. The respondents contested the case and in their written objections the main issue was raised that since the order of dismissal was passed by the Director, Intelligence and Investigation, although circulated by the Deputy Director, who has not been impleaded as a party and, therefore, the appeal was said to be bad for non-joinder of necessary parties. The learned counsel for the appellant immediately moved an application for amendment of the appeal for the addition of the Director, Intelligence and Investigation as respondent. The proposed amended appeal was also placed on the file. Since there was no material change in the original appeal as well as in the proposed amended appeal and since the said Director was a necessary party and parties can be impleaded or added at any stage of hearing, therefore, we accept the application and allow the amended appeal to be substituted in the original memorandum of appeal.
3. The learned counsel representing the department also represented the additional respondent No, 3 and, therefore, the objection filed earlier on behalf of the respondents Nos. 1 and 2 were taken to be the objections filed on behalf of the respondents as not a single word was changed in the memorandum of appeal which would need additional reply. However, during the arguments the learned counsel for the respondents took the preliminary objection that the appeal against the additional respondent No, 3 was barred by time. This argument was repelled on the ground that the name of the Director, Intelligence and Investigation was nowhere mentioned in the entire record of disciplinary proceedings and since the respondent No, 1 was personally interested against the appellant and he had himself played the role of a complainant prosecutor and an Authorized Officer, therefore, it was genuine presumption (on behalf of the appellant) that even final order, issued by the same respondent No, 1, might have been issued without the proper approval from the respondent No,
3. Even today the representative of the respondent is not in a position to show the actual approval of the final penalty by the said respondent No,3. Therefore, the misunderstanding of the appellant was a genuine one and the failure to implead the respondent No, 3 in the original appeal and addition of his name in the penal of respondents on the first available opportunity does not affect the merits of the case and the infirmity in not fatal to the appeal.
4. The appellant is originally charged on three counts. The first one being that vide order dated 31- 7-1995 the appellant was posted with the Deputy Director but instead of performing the said duty he preferred transfer to some other station. The general impression that is gathered from the charge is that the appellant was ordered to perform duties with an Officer with effect from 31-7- 1995 but he has failed to do so till the date of suspension, being 12-9-1995. Had this been so it was not only an incident of indiscipline but the appellant could be charged for willful absence from duty for almost one and a half months. But the record reveals that the appellant had not denied nor failed in the performance of duty. The. Charge in the show-cause notice was vague to this effect.
Further, details of the charge has been elaborated in the final show-cause notice as well as the impugned order of dismissal from service wherein the appellant is said to have talked to an office Superintendent that instead of performing duties with a particular Officer he would prefer posting elsewhere. This was a question of fact which should have been decided by regular inquiry after recording evidence and providing an opportunity of cross-examination to the appellant. The record further shows that the appellant had been performing his duties as a Driver with the respondent No, 1 and occasionally he used to be late, or had uttered his dissatisfaction with the official assignments after the office hours as the unofficial duty. However, the charge as stated in the first show-cause notice stand unproved and vague which is contradicted by the record of the respondents and, therefore, the conviction cannot be based on the simple statement of a civil servant to the effect that he would like to be transferred elsewhere.
5. The second charge, which was the immediate cause of commencement of disciplinary action against the appellant was that he proceeded to Faisalabad on 3-9-1995 for getting monthly salary and he returned to Lahore the same day but did not care to attend the office on 4-9-1995. Even on 5-9-1995 he did not report for duty rather he submitted application for leave on the pretext of illness of his wife. This is the only charge on which the major penalty of dismissal from service has been imposed on the appellant and his service for more than a decade has been destroyed for his absence on 4-9-1995 and submission of leave for three days on 5-9-1995. He admittedly reported for duty on 8-9-1995 and after the week-end and the national holiday on account of 11th September, 1995 the appellant again reported for duty on 12-9-1995 when he was suspended and subjected to disciplinary proceedings. Even the absence for these few days has been justified by the medical certificate relating to the indoor admission of the wife of the appellant in a hospital and delivery of a girl child. The certificate shows that the wife of the appellant was admitted in the clinic of Dr. Samina Iftikhar on 4-9-1995. She delivered a baby girl on 8-9-1995 and she was discharged from the clinic on 9-9-1995 after recovery. This medical certificate is further supported by the birth certificate from the official record of Metropolitan Corporation, Lahore regarding the birth of a daughter of the appellant on 8-9-1995 in Hina Clinic of Dr. Samina Iftikhar. Thus, the absence for 4-9-1995 to 7-9-1995 was not "on the pretext of illness of his wife" but it was a genuine request as his wife was really admitted to a hospital. The casual leaves are normally meant for such type of emergencies and the respondent department should not be so touchy about the absence of a driver for such an important emergency. Before passing orders of dismissal from service on such flimsy grounds, and that too after going through certificate so produced in defense, the authorities in the department should have appreciated the situation by placing themselves in the shoes of the appellant. Thus, we hold that the second charge is also disproved except for the fact that the appellant was responsible for the negligence that he did not inform the department on 4th of September, 1995 about his absence.
6. The third charge against the accused was that he was habitual of getting leave without permission as has been his practice in the past. Previous omissions cannot be made the justification for future penalties A particularly when the omission have already been adjudicated upon administratively. We are told that the said previous instances of availed leave were based on medical grounds and leave has already been sanctioned for such period. Had the leave been refused and the delinquent officials awarded penalty even such a penalty could not be used as a justification for future penalties. It is an established principle that a person cannot be penalized twice for the same offence. The earlier occasions have already been accounted for and hence this third charge cannot justify the imposition of any penalty.
7. After the reply to the first show-cause notice supported by the documentary proof the appellant was served with the final show-cause notice on 25-9-1995 where fresh charges were added.
Although most of said charges related to questions of fact requiring detailed inquiry instead of summary trial but briefly it may be held that those additional charges could not be termed as the final show-cause notice. Thus, show-cause notice containing additional charges will be deemed to be the first show-cause notice and in such a situation the imposition of penalty without the issuance of final show-cause notice about such charges will be an irreparable irregularity.
8. Even in the impugned order of imposition of penalty the original two show-cause notices were supplemented by further allegations which were non-existent earlier. It is an interesting to note that the original show-cause notice consisted of a little over one page. The final show-cause notice consisted of almost two pages whereas the impugned order passed without having held any regular inquiry, consists of full three pages. A lot of matters based on personal information of the Authorized Officer were mentioned in the impugned order without realizing the fact that such details were neither on record nor within the notice of Authority to justify the imposition of major penalty.
9. In this case the Deputy Director, Intelligence and Investigation was the person who can be termed as a complainant in the case. The appellant was posted as Driver with him. Therefore, it was the respondent No, 2 who felt the absence of the appellant from duty or was offended by the comments of the appellant to prefer posting elsewhere than to work with him. The same Deputy Director who was practically a complainant had also played the role of an Authorized Officer. He incorporated his personal information into the show-cause notices as well as in the impugned order of dismissal so the same officer was a complainant, a prosecutor and a Judge. Nobody can be a Judge in his own cause. We are told that there is a separate set up for holding inquiries and investigations relating to disciplinary proceedings but the matter was not referred to such cell for obvious reasons. Even the impugned order, imposing the penalty of dismissal, was issued by the, same Officer, although containing the sentence that it has the approval of the competent Authority, but the fact remains that even the final order contains a lot of material which was not within the knowledge of the Authority. Thus, the conviction based on such irregular and biased inquiry cannot be maintained.
10. The result of the above discussion is that we accept this appeal and modify the impugned order of dismissal from service to stoppage of two increments for three years with no future effect. The appellant may be reinstated into service. The intervening period may be treated as leave of any kind due.
11. No order as to costs.
12. Parties be informed.