MUHAMMAD DAUB KHAN (CHAIRMAN). Mr. Dilber Khan, the respon--dent, was employed as a Radio Technician in the Department of Civil Aviation. He was charge-sheeted on 21st March 1969 on charges of subversion. An Enquiry Committee nominated to investigate into the charges found him guilty. In fact, Mr. Dilber Khan himself accepted his fault by making the following statement before the Enquiry Committee "On reconsideration, I accept my fault and will request the Government that I may very kindly be forgiven for what I did. I have made up my mind that in future I will serve my country. I, therefore, plead for merciful treatment for my previous misconduct."
The Director General, Civil Aviation thereupon, dismissed him from Government service vide Department of Civil Aviation's letter dated 30th July 1967, signed by the Deputy Director, for Director General of Civil Aviation.
2. Mr. Dilber Khan filed a suit challenging his dismissal and the Administrative Civil Judge, Rawalpindi decreed his suit by order dated 3-6-i0. The suit was decreed in favour of Mr. Dilber Khan on the technical ground that he was not given a show because notice. The Department of Civil Aviation thereafter cancelled their above mentioned memorandum of dismissal vide their Memorandum of 15th August 1970, and placed the respondent under suspension with effect from 20th August 1969 (f. e. from the date he was originally dismissed). The emoluments that were to be paid during the period of suspension were also speckled in the same Memorandum. A show-cause notice was then issued to Mr. Dilber Khan on 17th August 1'370, informing him that after considering the records and findings of the Enquiry Committee appointed to investigate into the charges of subversion against him, the Director-General, Civil Aviation had decided to inflict on him the major penalty of dismissal from service.
3. After taking into consideration the reply to the show-cause notice the Director-General, Civil Aviation decided to inflict on Mr. Dilber Kban the penalty of removal from service, with effect from 22nd December 1970. The order of termination was signed by the Assistant Director (Administra-- tion) Civil Aviation for Director General, Civil Aviation, and it is clearly mentioned therein that the decision to inflict the penalty of removal from service was taken by the Director-General, Civil Aviation.
4. An appeal to the Administrative Civil Judge, Rawalpindi, against the departmental decision of removal from service was also decreed in favour of Mr. Dilber Klan on 3-3-72. The main reason advanced by the learned Civil Judge was that it was incumbent on the Department to take notice of the earlier degree of the Civil Court dated 3-6-70, and to have implemented it in letter and spirit, which according to the observations of the Civil Judge was never done, in so far as Mr. Dilber Khan was never re-instated after passing of the orders of the lower Court.
The appellant (Director General of Civil Aviation) filed era appeal to t--e Additional District Judge, Rawalpindi who by his order dated 18-12-73 observed that with the promulgation of the Service Tribunals Act 1973, the appeal lead abated in view of proviso of section 6 of this Act.
6. Mr. Dilber Khan had in the meantime also represented his to the Prime Minister's Representative on Administrative Inspection, who advised the Department of Civil Aviation in January 1974, as follows: "Since the announcement, regarding Service Tribunal is still awaited, it is feared that the fate of the representation may continue to hang in balance for quite some time.
It is, therefore, suggested that the Department may consider the possibility of arriving at an out of Court settlement with the petitioner."
7. In view of these instructions from the Prime Minister's Representa--tive can Administrative Inspection Mr. Dilber Khan was interviewed by the Director of Administration, Civil Aviation, early in March 1974. After consulting his lawyer, Mr. Dilber Khan showed his willingness to accept the proposal of out of Court settlement provided that "his station of posting was kept at Rawalpindi for at least next 13 years, so that he could be in a position to pay back his loans" The Department of Civil Aviation could not obviously accept this condition and accordingly informed Mr. Dilber Khan on 1st March 1974 that the tenure of his posting in Rawalpindi could not be guaranteed, as the posting of a Government servant to a station seas always subject to exigencies of service.
8. In the meantime, the establishment of the Service Tribunal on 27th February 1974 had been announced and the Department of Civil Aviation submitted their appeal to the Tribunal.
9. The Tribunal admitted the appeal of the Department of Civil Aviation for regular hearing and have since examined this cage in detail, in a number of sittings, taking into consideration the view points expressed by both the parties, as well as the Civil Court. Some of the important issues involved are as under :-
(i) Whether an appeal by a Government Department is competent, as S. 4 of the Tribunal's Act gives a right of appeal to a Civil Servant, only.
(ii) Whether the respondent is a Civil Servant.
(iii) Whether actions to dismiss or remove the respondent from service were taken after holding proper enquiry and following the enquiry procedure laid down in Government Servants (Efficiency and Discipline) Rules, 1960.
(iv)Whether action to dismiss or remove the respondent from service was taken by the competent authority.
10. Reaction of the Tribunal to the above mentioned issues are explained in the following sub- paragraphs:
(i) An appeal to the Tribunal by a Department of the Government is competent under section 6 of the Service Tribunals Act which lays down that . . . . all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act, shall abate fcrt11hwWi provided that any party to such a suit, appeal or application, may within nine days of the commencement of this Act, prefer an appeal to the appropriate Tribunal . . . "In this particular case, the appeal of the Department in a Court of law abated on creation of the Tribunal, and the Department filed an appeal to the Tribunal within the prescribed time limit.
(ii) The statements recorded by the Registrar clearly establish that the Organisation where Mr. Dilber Khan was working cannot be termed as a factory and that he was not a workman, but a civil servant.
(iii) The relevant clauses of the Government Servants (Efficiency 8t Discipline) Rules governing the procedure for inflicting a penalty are reproduced: 3 (d) When a Government servant, in the opinion of the authority is engaged, or in reasonably suspected of being engaged, or in reasonably suspected of being engaged in the subversive activities, or who, is reasonably suspected of being associated with activities, and where retention in service is therefore, considered prejudicialto national security, the authority may, subject to the provision of sub-rule (4) of rule 4, impose on him one or more penalties, including major penalty of
(f) removal from service (g) dismissal from service.
5. Inquiry procedure in cases of subversion.---When a Government Servant is to lie proceeded against (the above mentioned) Claus (d) of rule 3, the Authority shall give him a reasonable opportunity of showing cause against that action before an Inquiry Committee to be constituted to enquire into the charges I Provided that na such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan, or any part thereof, it is not expedient to give such opportunity.
The disciplinary procedure followed by the authority in this case, has already been explained in preceding paragraphs. A charge-sheet was served, followed by an Enquiry Committee, providing an opportunity to the accused to represent his case. But after the report of the Enquiry Committee was submitted, no opportunity was afforded to show cause against the proposed action, and this was the main reason which prompted the Administrative Civil Judge to decide the earlier appeal in favour of Mr. Dilber Khan.
On receipt of the Court's decision dated 3-6-70 the Department cancelled their earlier letter imposing the penalty of dismissal and proceeded to follow the disciplinary procedure outlined in the Efficiency and Discipline Rules, by placing Mr. Dilber Khan under suspension, and serving a show-cause notice. The relevant clause 10 (a) of Government Servants (Efficiency and Discipline)
Rules, reads as under:
(2) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the authority, on a consideration of the circumst--ances of the case, decides to hold a further inquiry against him on the allegation on which the penalty of dismissal, removal or comp--ulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority from the date of the original order of dismissal, removal or com--pulsory retirement and shall continue to remain under suspension until further order.
After completing this formality, the Director General, Civil Aviation decided to remove Mr. Dilber Khan from service with effect from 22nd December 1970. The impression that no notice was taken by tire Depart--ment of Civil Aviation of the decree of the Civil Court dated 3-6-70 appears to be based on some misunderstanding. It is quite obvious that cancellation of the earlier order of dismissal was made in deference to the Court's' decision, A and the order of suspension is in accordance with the relevant rules quoted above. Since the accused had accepted his fault, no further enquiries of personal hearings were necessary. The departmental authority, however, converted the earlier punishment of dismissal to that of removal from service. This was obviously done keeping in view the recommendations of the Enquiry Committee. The concluding sentences of Enquiry Committee's report read as under "XX.-Mr. Dilber Khan on finding his inability to defend himself has, however, made a plea for merciful treatment. In the opinion of' the members of the Committee, his action was not so much due to malice towards the State or the Department but an impulse of a foolish young man. The Government, 9n reorganisation of his youth and the sufferings which his dependents would be exposed to later etc., may entertain the plea of mercy made by the accused Mr. Dilber; Khan in awarding punishment,"
(iv) The observation that letter of dismissal and removal from service are not signed by the competent authority is also based on some misconception. It is a common practice in Government departments that letter for and on behalf of the Government competent authority are signed by officers who are vested with such authority. In the present case, the letter of removal from service was signed by the Assistant Director-General, wherein it has been specifically mentioned that the decision was taken by the Director General,. The Depart--ment has also produced a copy of the final order of the Director --General, which reads as follows: "On reconsideration, I have decided that Dilber Khan may be removed from service.--"
(Sd.) A. Rauf, 19-12-70 Director-General. "
The Assistant Director (Administration) merely conveyed these orders to Mr. Dilber Khan.
11. The Tribunal is satisfied that the Department of Civil Aviation has followed the disciplinary procedure, and has committed no irregularity in awarding the punishment to Mr. Dilber Khan. In addition to his earlier s misconduct, the insistence of Mr. Dilber Khan to remain at Rawalpindi for next thirteen years, in case he was re-instated renders him unfit to remain in service.