ROSHAN ALI MANGI (MEMBER).---The appellant Muhammad Khalid, while he was serving as a Dresser (B-8) in the Pakistan Institution of Medical Sciences, Islamabad, was imposed major penalty of removal from service with immediate effect, on the grounds of committing acts prejudicial to good conduct and service discipline and unbecoming of an official, which come within the E&D Rules, 1973 as well as PIMS Service Regulation, 1990, vide impugned order, dated 26- 1-1995. The appellant preferred departmental appeal on 21-2-1995 which was rejected on 4-4-1995.
2. Being aggrieved by the said impugned order the appellant filed suit before the Senior Civil Judge, Islamabad on the understanding that the said Institute being then governed under the Ordinance, its employees, including the appellant was not a civil servants But the Federal Government vide its Notification, dated 4-11-1996 has made the Institute an attached department of the Ministry of Health. The appellant, therefore, withdrew his case from the Civil Court and filed this appeal before the Honourable Tribunal on 20-11-1996.
3. It is stated that one Mr. Muhammad Hassan lodged a complaint to the authority that during his absence from ward, his wife was taken to dressing room for dressing of mild injury on the heal by the appellant Dresser. The Dresser had bolted the door from inside, lifted her shirt and moved his hand around her abdomen and touched her breast. She shouted when he tried to kiss her. On that he unbolted the door and let her go out. Consequently, the appellant was suspended, vide order, dated 10th December, 1994.
4. A fact finding committee was constituted to look into the matter and the appellant was allegedly held guilty for gross miss-conduct.
5. The appellant was issued a show-cause notice on 31st December, 1994, to which the appellant replied on 5-1-1995, denying the allegations. A But he was held guilty of misconduct and punished vide, order dated 26-1-1995 by removing him from service with immediate effect.
6. Appearing on behalf of the appellant, his learned counsel pleaded that no charge sheet was served upon him alongwith statement of allegation which according to him, was mandatory under the Rules. This action on the part of respondents resulted in a serious prejudice to the appellant and thereby denied him a reasonable opportunity of defence. This vitiated ab initio the action taken by the respondent. Secondly, no witness was examined in the presence of the appellant.
Thirdly, he was not given the right to cross-examine the witness against him. Fourthly, the complainant was not the eye witness of the incident but he made it on hearsay basis, which, according to learned counsel, had no value in the eyes of law. Fifthly, the statement of the only eye witness namely Mehboob Masih, Senitary Worker, which was deposed in favour of the appellant was not considered. Lastly, the conclusion arrived at by the Committee was not based on any eye- witness of the incident proving the committal of the alleged misconduct by the appellant or corroborating the complaint against him. With these submissions, it was prayed to set the impugned order aside and re-instate the appellant in service, with all back benefits.
7. The written objections have also been filed by the respondents. The learned counsel for the respondents raised the preliminary objection of time limitation. He pointed out at the Bar that the appellant was imposed the penalty of removal from service on 26-1-1995, against which he preferred a departmental appeal, which was rejected on 4-4-1995, and has come to the Tribunal on 20-11-1996. The appeal was therefore, time barred.
8. He also raised another objection that the appeal was bad for non-joinder of necessary parties i,e, the Lady patient and her husband. Hence merited dismissal on that short ground also.
9. On jurisdiction, it has been stated that the incident in question took place in December, 1994 when the employees of PIMS were being treated as civil servants and their status was not taken away from them by Ordinance promulgated on 12-1-1995.
10.On merit, he stated that the appellant had concealed some material facts such as his confessional statement and the apology and hence had not come to this Tribunal with clean hands. Secondly, the inquiry was only fact finding inquiry. The appellant was already fully aware of the charges against him and he was also appraised about the complaint against him as is evident from the defence statement, whereas he had already confessed the allegations and for that he had apologised the effected persons. As such there was no need to constitute a regular inquiry committee to conduct the regular inquiry as prescribed under the law. It was, therefore, that the appellant was issued show-cause notice to which he had made a reply. Finding his reply unsatisfactory, he was imposed major penalty of removal from service. It has been contended that the appellant was afforded full opportunity to explain his position, which he did avail. He was given show-cause notice once again to explain his position. In fact his guilt was very grave and deserved a dismissal from service but taking a lenient view, he was removed from service.
11.As regards, the appellant's position, that the complainant was not the eye witness as such his statement had no value in the eyes of law. It has been maintained that the lady patient had lodged the complaint through her husband which is usual in our society. Although it has been admitted that the complaint was lodged by the husband of the lady patient who was not eye witness of the incident, but there was no ..reason to disbelieve that his wife would not have informed him of the incident. No responsible lady is likely to make a false complaint against any one which would affect her chastity and character and the same would be true for her husband.
12.It was also brought to the notice of the Bar and also stated by one of the witnesses namely Mrs. Virgina and Sister Gulzar that normally the dressing is carried on the bed side especially when the patient is unable to walk up to the dressing room and the Dresser should carry out the dressing on the bed side rather taking her to the Dressing Room without any attendant.
13.It was. clarified that the appellant was fully associated with the inquiry. With these submissions, it was prayed to dismiss the appeal.
14.We have heard the parties at length and perused the documents before us. On limitation we find that the impugned, order was passed on 21-1-1995 to which the appellant made departmental appeal, on 21-1-1995, which was rejected, on 4-4-1995. However, the appellant went to the Civil Court on the plea that at the time he thought that he was not a civil servant. However, when a Notification, dated 4-1-1996 made the Institute an attached department of Ministry of Health, the appellant withdrew his civil suit and came before the Tribunal. This action was taken in good faith and to support such an action he quoted Supreme Court's judgment in 1995 M LD 1073 (which seems irrelevant, in our opinion)
15.This stand of the learned counsel was contested by the learned counsel for the respondents.
He clarified at the Bar that before the promulgation of PIMS Ordinance on 12-1-1995 the employees of the PIMS were civil servant and that status was not taken away from them by the Ordinance as they continued to come before the Tribunal for redressal of their grievances, even after that date.
Even if the plea of the appellant that he went to the Civil Court under some mis-conception but that should have been replied by the written statement filed in the Court in May, 1995 on behalf of the respondents, wherein it was clearly admitted that he was civil servant and the civil Court had no jurisdiction in the matter. Any way he observed that with such a withdrawal of the civil suit at later stage did not bring the present appeal within time. His application for condonation of delay did not merit consideration and should, therefore, be rejected. The employees of the PIMS at the relevant time were treated as civil servants, we therefore, subscribe to the views of the learned counsel for the respondents. But in view of the circumstances, we feel that the appellant's case should not be killed on the alter of time limitation, we therefore, condone it.
16.The perusal of the statement made by the appellant reveals that he has confessed his- guilt in so many words and for that he has taken apology from the effected persons. During the fact finding inquiry he was asked by the Committee as:-- Q.1: By whom you have ordered to carry-out the dressing of this patient?
Ans. Mr. Muhammad Khalid said that 3 days before Dr. Ashraf had told him.
Q.2: 3 days before Dr. Ashraf had gone to Lahore, he was not available in the ward, the Chairman asked?
Ans. He could not satisfy the Chairman.
Q.3: Why did you take her to Dressing Room without female/male attendant?
Ans. No Answer.
The above questions reveal that the appellant relied about the permission of a doctor who was not available during the period the incident took place. As a normal procedure when any female is taken to the ward then she is to be accompanied by either male or female attendant, but the Dresser (Appellant) took her to dressing room alone. This indicates clear intention of the appellant.
17. He, also did not implead either the husband or the patient herself in this appeal, who were the necessary parties. On this account too, as also objection raised by the learned counsel for the respondents, the appeal becomes incompetent.
18. The upshot of the above discussion is that the appellant was found guilty and correctly punished for his action which falls within the ambit of misconduct. We, therefore, find yourself unable to interfere into the action already taken by the respondents department. Accordingly, the appeal having no substance is dismissed on merit as well as on incompetency.
19. Nor order as to costs. Parties be informed.