JUDGMENT TANVIR AHMED KHAN, ].- leave to appeal is sought against the judgment dated 17.10.2000 of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), whereby the appeal filed by the petitioner against his dismissal from service through order dated 28.8.1997 was rejected.
2. The facts as narrated in this petition are that the petitioner joined District Management Group after his selection by the Federal Public Service Commission in the year 1973. He served at different places. While working as Chairman/Managing Director, National Investment Trust, he secured ex- Pakistan leave for 56 days due to his heart ailment, which was granted to him subject to title vide notification dated 12.9.1996. His young son Waqas Shaikh, presently aged 16 years, was suffering' from B-Thalassemia Major and was under treatment at Agha Khan University Hospital, Karachi. The doctor treating him over there recommended his bone marrow transplant.
3. The petitioner while at London regarding his own heart ailment arranged for the treatment of his son over there. He came back to Pakistan and applied for extension of his leave for further 120 days on the ground of bone marrow transplant of his ailing son at London. Thereupon, a notification was issued by the Establishment Division extending leave of the petitioner for 120 days with effect from 5.11.1996 subject to title.
4. Leamed counsel has stated that the petitioner left Pakistan on 20.10.1996 for London and got his son admitted in a hospital there where he had his bone marrow transplant. It is stated that abruptly through a notification dated 29.1.1997 the Un-expired period of ex-Pakistan leave of the petitioner was cancelled with immediate effect. Thereupon, the petitioner wrote a letter from London making a prayer that his leave cancellation notification be withdrawn and further six months extension in leave be granted to him. The competent authority through letter dated 18.2.1997 informed the petitioner that his request for extension in ex- Pakistan leave was declined and he was placed under suspension with effect from 30.1.1997. Thereafter the petitioner was served with a show-cause notice dated 7.5.1997 by the competent authority under. Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the Rules), on specific charges. The same reads as under:- "Whereas, you Mr. Asadullah Shaikh, a BS-20 Officer of District Management Group, at present posted as Officer on Special Duty (under suspension) in the Establishment Division, are accused of having committed the following acts of omission and commission out of mala fide corrupt motives and in clear violation of decisions of Board of Directors, NIT, in your capacity, as Managing Director, National Investment Trust (NIT) during the period from 29.1.1994 to 10.9.1996, which constitute misconduct and corruption under Rule 2(4), 3(b) and Rule 3(c) of Government Servants (ED) Rules, 1973:-
(a) decided without conducting a proper investigation to. Make an equity investment of Rs.240 million in the Schon Refinery for purchase of 2,44,600 shares at Rs.20 per share when it was difficult to sell equity even at par value. This was in breach of the authorisation by the Board dated 28.7.1995 to make an investment provided that there was participation of other financial institutions such as BEL and NDFC;
(b) failed to check out oh participation by the above-mentioned institutions and also defaulted in ascertaining the credit worthiness of the sponser from the State Bank of Pakistan;
(c) allowed in pursuance of your decision to invest contrary to the conditions of the decision of the Board, disbursement of funds for impugned investment without any confirmation regarding the financial closure of the project. Schon Group at the time of the disbursement was in default, by a sum of Rs.68 million;
(d) made an equity investment of Rs.580 million in Chakwal Cement by purchasing its shares @ Rs.
10 per share without proper investigation as the market price at the time of purchase was Rs.7 per share and the Chakwal Group was defaulter of almost Rs.350 million. This transaction in equity investment had been made in violation of the decision of the Board of Directors of NIT dated 27th August, 1995 in terms of which the proposed amount of investment having been found too big for NIT, the MD had . Been required to. Enter into negotiations with Managing Director, Investment Corporation of Pakistan for subscription of a reasonable amount and investing the balance only.
Besides, it had been required in view of certain reservations of the MD, IDBP and PICIC on account of the default position with these organisations that NIT made disbursement of funds after clearance from IDBP and PICIC;
(e) purchased NIT's staff car No. GP. 0239/4-450 at a reduced value of Rs. 1,86,000/- on your transfer from NIT despite the fact that under NIT's rules the benefit of obtaining car on book value is available only to the employees of NIT and that too on superannuation whereas you were neither entitled to this facility being deputationist nor were retiring from service; and
(f) have assumed a style of living beyond your ostensible means of income and acquired a persistent reputation of being corrupt, as reflected besides (a) to (e) above in owning a palatial bungalow No. 88-E located at Sindhi Muslim Commercial Housing Society in Karachi, also not declared in your declaration of Assets for the year 1995 in which by instructions issued to all Govt.
Servants, previous and present acquisitions had to be consolidated.
AND WHEREAS I, the Authorized Officer, having decided in terms of Rule 5(1)(i.e) of Government Servants (E&D) Rules, 1973 that it is not necessary to have an inquiry into the above charges conducted through an inquiry officer or inquiry committee; NOW, THEREFORE, you Mr. Asadullah Shaikh, Officer on Special Duty (under suspension), Establishment Division, are hereby called upon to show cause as to why a major penalty which includes the penalty of dismissal from service, may not be imposed upon you under the provisions of the aforesaid Rules, on the above grounds.
Your written reply to this show-cause notice should reach the undersigned within fourteen days of its receipt by you, failing which it would be presumed that you have no defence to offer an ex parte decision would be taken.
You may also state whether you want to be heard in person."
The petitioner submitted his reply on 23.5.1997 and denied all the charges contained in the above show-cause notice, In the end of his reply he stated that an opportunity be provided enabling him to further clarify the alleged charges levelled against him. It was also stated by him that he was presently in London (U.K.) in connection with medical treatment of his son Waqas who was an in- patient in Hammersmith Hospital, London, for bone marrow transplant.
5. The reply submitted by the petitioner was thrashed and he was again asked through letter dated 8.7.1997 by the joint Secretary, Establishment Division, to avail the facility of personal hearing between 23.7.1997 to 31.,7-1997. The said letter reads as under:- "Please refer to your reply dated nil to the show-cause notice dated 7th May, 1997.
2. The Establishment Secretary, in his capacity as Authorised Officer/ having considered your reply to the show-cause notice dated 7th May, 1997, has been pleased to direct that you should appear for personal hearing between 23.7.1997 to 31.7.1997.Before him in his office (Cabinet Block, Islamabad), by prior appointment on a date convenient to the authorised officer.
3. In case you do not avail this opportunity it will be presumed that you are no more interest in personal hearing and the disciplinary case against you will be decided on the basis of the reply to the show-cause notice furnished by you, without further notice."
On receipt of above letter the petitioner again showed his inability to avail the opportunity of personal hearing due to ailment of his son at London. The competent authority, after considering his reply, through notification dated 28.8.1997 imposed upon him the major penalty of dismissal from service with immediate effect in terms of-Rule 4(l)(b)(iv) of the Rules. Thereafter, the petitioner filed an appeal before the Tribunal under Section 4 of the Service Tribunals Act, 1973, against the impugned order of his dismissal from service, It remained pending before the Tribunal for a period of more than 2 and a half years as all the times adjournments were sought by the petitioner because of his preoccupation in London due to medical treatment of his son. Ultimately, the Tribunal heard the appeal under Rule 19(1) of the Service Tribunals (Procedure) Rules, 1974 and dismissed the same through the impugned judgment dated 17.10.2000.
6. The petitioner filed a petition for leave to appeal before this Court on 19.12.2000 taking exception to the aforesaid judgment of the Tribunal.
7. It came-up for hearing before this Court on 12.1.2001 and Mr. M.M. Aqil, learned counsel appearing for the petitioner, was directed to secure the personal appearance of the petitioner on 2.5.2001. On the adjourned dated i.e. 2.5.2001 the petitioner did hot enter appearance and instead the learned counsel for the petitioner sought another adjournment for a period of six months which was not granted and the petition was dismissed for non-prosecution and leave was declined through an order dated 2.5.2001.
8. This order of dismissal for non-prosecution was however withdrawn on 3.4.2002 at the initiation of the petitioner and the petition was restored to its original number. Again the matter came-up for hearing on 24.9.2002 whereby this Court gave a last opportunity to the petitioner for his appearance before this Court and the case was accordingly adjourned to 4.10.2002.
9. Today the learned counsel appearing for the petitioner has placed on record a letter dated 1.10.2002 addressed/sent to him by the petitioner from London whereby he has sought exemption from his personal appearance before this Court due to the ailment of his son. The petition accordingly was argued by the learned counsel at some length. He has argued that since there was a charge of corruption against the petitioner, as such a regular inquiry was essential in his case and the matter could not have been shortened adopting a summary procedure. He has also stated that only one show-cause notice was issued to the petitioner and non-issuance of second show-cause notice has prejudiced the case of the petitioner and the impugned order in the circumstances cannot be maintained. He has placed reliance on the cases of Inayatullah Khan v.
The Provincial Government, NWFP, Peshawar (1985 SCMR 1747), Basharat Ali v. Director, Excise and Taxation, Lahore and another (1997 SCMR 1543), Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222), Ghulam Muhammad Khan v. Prime Minister of Pakistan and others (1996 PLC (C.S.) 868) and The Deputy Inspector-General of Police and another v. Muhammad Arif (1989 SCMR 852).
10. Learned Deputy Attorney-General appearing for the respondents has supported the impugned judgment. He has stated that the second show-cause notice as claimed by the petitioner was not required in the facts and circumstances of the present case. A further argument has been advanced that the plea of second show-cause notice was not even raised by the petitioner before the Tribunal.
11. We have considered the contentions raised by the learned counsel for the parties and have gone through the documents placed on record, It is reflected from the perusal thereof that the Authorised Officer after applying his independent mind decided that no forma! Enquiry was needed in the facts and circumstances of the case and decided to approach the matter in terms of Rule 5(-l)(i.e) of the Rules. The petitioner was specifically informed about the charges in detail and he was also informed the proposed penalty to be taken against him in case the charges levelled-against him were proved, In the said show-cause notice he was also informed that while replying to the same he should intimate whether he wanted to be heard in person.
12. The petitioner submitted his detailed reply on 23.5.1997 and towards the ends of the same he also prayed for an opportunity of being heard in person enabling him to clarify the alleged charges levelled against him. However, he also mentioned that presently he was preoccupied with the medical treatment of his son in London (U.K.). On receipt of above reply the Establishment Secretary in his capacity as the Authorised Officer again asked the petitioner through his letter dated 8.7.1997 to avail the opportunity of personal hearing between 23.7.1997 to 31.7.1997. The petitioner did not deny the receipt of all these letters. However, all the times he deferred his appearance. As reflected from the preceding paragraphs he even demonstrated the same behaviour of non-appearance before the Tribunal where the matter remained pending for more than two and a half years. This Court also provided him opportunity for appearance time and again but he did not avail of the same and in his letter dated 1.10.2002 he himself had sought exemption from personal appearance.
13. It is to be appreciated that the case in hand was dealt with under Rule 5(l)(i.e) of the Rules and the question whether an enquiry is needed or not depends upon the nature of the charges. Here in this case the charges against the petitioner were apparent from the documents taken into consideration by the Authorised Officer. The legal requirements as already stated were fully Complied with by the Authorised Officer and the petitioner was in full knowledge of the case against him. In the facts and circumstances of the present case when the matter was dealt with under Rule 5(1 )(i.e) of the Rules as no enquiry was conducted and the show-cause notice earlier issued to the petitioner was all pervasive, as such no second show-cause notice as claimed by the petitioner was required in the present case. Even otherwise, the plea of second show-cause notice as claimed by the petitioner was not taken by him before the Tribunal. The authorities relied upon by the learned counsel appearing for the petitioner are totally distinguishable and are not at all applicable to the case in hand. The same in the circumstances cannot be raised before this Court, It is pertinent to mention over here that apart from the charge of misappropriating Crores of rupees there is an allegation against the petitioner of having assumed a style of living beyond his ostensible means of income. His reply in this regard was also deficient. For the last more than six years he is living in U.K, and has not visited Pakistan to answer the charges against him. Such like conduct on the part of the petitioner, being a civil servant, is quite unbecoming of a civil servant and cannot be approved on any ground.
Resultantly, for what has been stated above, the instant petition being without any force is hereby dismissed and leave refused.