Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ASGHAR ALI VS Respondent: DIRECTOR-GENERAL, ANTI-NARCOTICS TASK FORCE and others
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Arif, Mamoon Kazi, Ajmal Mian Title:ASGHAR ALI vs DIRECTOR-GENERAL, ANTI-NARCOTICS TASK FORCE and
others Case No.: Civil Petition No,, 187 of 1996 Appeal No,,468(R) of 1995 Date of Judgment:1997-12-08 Reported As: 1998 PLC (C.S.) 513 Result: Appeal accepted Judgment ORDER ' CH. MUHAMMAD ARIF, J.---This petition under clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment dated 7-3-1996 made by the Federal Service Tribunal dismissing petitioner's appeal challenging order dated 29-10-1995 whereby the Appellate Authority had converted the major penalty of dismissal from service imposed on the petitioner vide order dated 9-6-1991 into that of removal from service. 2. The petitioner was working as Field Investigating Officer of the Narcotics Control Board at Attock in 1990. He received some information from Interpol Police against M/s. Mumtaz Abbasi and Afrahim Abbasi about their involvement in contraband drugs. They were kept under strict surveillance to the annoyance of Ch. Muhammad Afzal, S.H.O. Police Station Waris Khan, Rawalpindi who was friend of the said two agents. The said S.H.O. Succeeded in the registration of a case against the petitioner at the instance of these persons under section 382/365, P.P.C. Allegedly for snatching Rs,12 lac from Ashfaq Abbasi, an employee of Ehsanul Haq Abbasi. Petitioner was arrested in the case on 27-9-1990. Initially he was granted bail by the Illaqa Magistrate but later on the same was cancelled by the next higher forum. On appeal, the High Court again released him on bail on 26-1-1991. During the period of his incarceration in Jail, a show-cause notice was also issued to the petitioner on 7-11-1990. This notice was subsequently substituted with a charge-sheet dated 7-2-1991. Petitioner denied the charges contending that since the entire matter was pending consideration before the Civil and Criminal Courts, the departmental proceedings merit to be held in abeyance. However, the department proceeded with the case, appointed Mr. Mahmood Ahmad Butt, Group Leader, as Inquiry Officer who continued with the same and submitted report on 22-4-
---
## Page 2
1991 holding him guilty of the charges. The Authorized Officer recommended his dismissal from service and accordingly the Competent Authority dismissed him from service on 9-6-1991. Petitioner's departmental appeal against this order of dismissal was disposed by the Appellate Authority vide letter dated 6-7-1992. He approached the Tribunal in appeal which was decided on 5-1-1993 when request for withdrawal was made reserving his right to move the competent Authority at appropriate time after disposal of the cases against him. 3. Subsequently, the petitioner was acquitted in the Criminal case and he made an appeal to the Secretary, Pakistan Narcotics Control Board, P.N.C.B. For short, seeking his reinstatement in service but the same was rejected on 5-4-1995. He again approached the Federal Service Tribunal and on 11-6-1995 the matter was remanded to the Appellate Authority to pass fresh orders after providing him an opportunity of hearing in person. It was after the remand that the Secretary, P.N.C.B. Disposed it of on 29-10-1995 by converting the penalty of dismissal into one of removal from service. This order dated 29-10-1995 was made the subject-matter of the appeal before the Federal Service Tribunal which was dismissed vide the impugned order dated 7-3-1996 (incorrectly described as dated 18-3-1996). Para. 6 of the judgment, impugned in this petition, is couched in the following terms:- "(6) As discussed in para. 3 above, the reduced penalty of removal from service has been imposed upon the appellant for absence from duty. Therefore, the only question for determination by us is whether the appellant was absent from the office and why? It is said that the appellant was not well and left the office on 29-8-1990. He was thereafter, advised bed rest by the doctor from 29-8- 1990 to 4-9-1990, again from 5-9-1990 to 18-9-1990 and further from 19-9-1990 to 27-9-1990 on account of suffering from illness. In support of his contention, the appellant has filed photocopy of three outdoor tickets of District Headquarters Hospital, Rawalpindi. The appellant who was present in the Court admitted that he did not submit these chits/so-called medical certificates to the office immediately and submitted the same to the office along with an application for leave only after the issuance of charge-sheet, dated 7-2-1991. No such application is available on record and the department has categorically denied to have received any such application. However, a day after the close of arguments on 15th January, 1996 the appellant sent by registered post photo copy of his application dated 27-2-1991 said to have been submitted with the Secretary, P.N.C.B., Islamabad. The medical certificates are also said to have been sent to the office along with this petition. Though the department has denied to have received this application but this amounts to admission by the appellant that he remained absent from the office from 29-8-1990 till the date of application i,e, 27-2-1991. Therefore, the question whether the appellant was absent from the office stands proved by admission of the appellant himself. Now the second question is what were the circumstances which prevented him from attending the office and why could not he submit leave application or alleged medical chits to the office before. The foremost excuse for remaining absent from the office is the illness of the appellant for which first medical chit is shown to have been issued on 29-8-1990. These medical chits too so-called medical certificates - apparently were issued by the Medical Officer, District Headquarters Hospital, Rawalpindi whereas the appellant was admittedly posted at Attock. Why such a certificate was not obtained from the doctor available at the place of posting and why this certificate was not submitted 'to the office immediately' - why the appellant had been keeping this chit with him for more than 5 months? There was no explanation to it. These certificates appear to have been manoeuvred and do not inspire any confidence in us. The second excuse for remaining absent from the office is the arrest by Police on 27-9-1990. It is, however, admitted that the appellant was granted 'bail on 1-12-1990 which was later cancelled by the Additional District Judge on 7-1-1991. He was on bail from 1-12-1990 to 7-1-1991, why he did not report to the office during this period? Similarly on release by the order of the High Court on 26-1-1991, he did not report for duty even thereafter or bother to make application for leave. The
---
## Page 3
appellant moved application for leave for the first time on 27-2-1991 i,e, after about six months of his absence from the office. Narration of all these facts show that the appellant left the place of duty on 29-8-1990 without prior sanction of leave and did not make any application for leave etc. Upto 27-2-1991 without any reasonable excuse. Though the admission of unauthorised absence did not require any further inquiry, the Department was fair enough to hold an inquiry into the charge of absence etc. For which a formal charge-sheet was served on the appellant on 7-2-1991. The appellant did not join the inquiry proceedings despite repeated notices from the Inquiry Officer on the plea that civil/criminal proceedings were going on and, therefore, the departmental proceedings should have been postponed. We do not find any substance in this contention of the appellant. The appellant should have joined the inquiry and adduced proper defence evidence in support of his plea. His failure to join the inquiry proceedings supports the departmental stand that he was involved in litigation with the Police and others on his own and that the department had nothing to do with his arrest or any other civil/criminal proceedings that were initiated/conducted by or against the appellant. He had been admittedly absent from a sensitive assignment for a long time and such an absence cannot be tolerated on capricious grounds." 4. Mr. Shah Abdur Rashid, Advocate Supreme Court has simply reiterated the same objections as were attended to by the Federal Service Tribunal in para. 6 of the impugned judgment, reproduced in the preceding paragraph. According to him, nothing would turn on the absence of the petitioner between 29-8-1990 and 27-9-1990 in that he was advised bed rest by the Doctor. However, he was not in a position to state that his absence as above was either preceded by appropriate order of the competent Authority or succeeded by such order. Even the reasons detailed in para. 6 by the Federal Service Tribunal in relation to the failure on the part of the petitioner to obtain the requisite certificate from the Doctor available at the place of posting as also non-submission of the some other 'certificate' to the office immediately", have not been shown to be suffering from any factual inaccuracy whatsoever. The further observation that the petitioner applied for leave for the first time on 27-2-1991 i,e, after six months of his absence from office, was also not controverted by the learned counsel. 5. Learned counsel was of the view that in the presence of the observation by the Federal Service Tribunal that the penalty of removal from service "appears to be little excessive" and, therefore, the impugned order cannot be sustained. We are afraid even this argument does not advance petitioner's case a wee bit It was at the appellate stage that petitioner's conduct in relation to his own involvement in unauthorized litigation with the police was noticed resulting into bringing bad name to the Department as justification for the substitution of the penalty of dismissal from service with removal from service. 6. No other point was raised. 7. Not finding any force in this petition, the same is dismissed. Leave refused. 1998 PLC (C.S.) 517 [Supreme Court of Pakistan] Present: Ajmal Mian, C.J., Abdur Rahman Khan and Ch. Muhammad Arif, JJ Mst. SIRAJUN-MUNIRA versus PAKISTAN through Assistant Deputy Director- General (Admn.), Islamabad Civil Appeal No, 260 of 1992 and Review Petition No,36 of 1994, decided on 22nd January, 1998. (On appeal from the judgment of Federal Service Tribunal, Islamabad dated 18th June,. 1991 passed in Appeal No, 431(R)190). (a) Government Servants (Efficiency and Discipline) Rules, 1973---
---
## Page 4
----R. 4---Constitution of Pakistan (1973), Art.212---Removal from Service---Wilful absence from duty---Service Tribunal dismissed civil servant's appeal against her removal on ground of limitation---Validity---Initially, civil servant's appeal against order of Service Tribunal had been dismissed against which she had filed review application wherein judgment of Court had been challenged on ground of limitation only and not on merits-Impugned order of Service Tribunal and that of Departmental Authority were, thus, perfectly correct on merits---Judgment of Service Tribunal, however, contained cogent reasons for dismissal of appeal on merits as also on limitation for civil servant could not explain delay of each day in filing time-barred appeal before Service Tribunal---No interference was warranted in judgment of Service Tribunal in circumstances. [pp. 519, 521] A & C (b) Limitation Act (IX of 1908)--- ----S. 5---Constitution of Pakistan (1973)', Art.212---Time-barred appeal---Delay of each day in filing appeal must be reasonably explained. [p. 520] B Appellant in person. Imtiaz Muhammad Khan, Advocate-on-Record for Respondent (on 7-1-1998). Dates of hearing: 7th and 8th January, 1998. ORDER ' ABDUR REHMAN KHAN, J.---This Appeal No,260 of 1992 filed by the appellant Mst. Sirajun-Munira against the judgment dated 18-6-1991 of the Federal Service Tribunal was earlier dismissed by this Court on 22-1-1994. The appellant moved Review Petition No, 36 of 1994 for the review of the said order. The review petition was heard on 14-6-1994 and notice to respondent was issued for 3-7- 1994. After hearing the counsel for the parties on this date the learned Judges observed "we had formed an opinion that the review petition merits dismissal and ordered accordingly". However, while going through the record at the time of writing the judgment, certain glaring facts came to light which necessitated rehearing of the review petition". Consequently, it was ordered that the review petition be fixed for rehearing. Subsequently this review petition was allowed by order, dated 12th December, 1995 with the direction that the appeal be fixed for rehearing. 2. The relevant background which led to the filing of the appeal is that the appellant was employed as Midwife in the respondent Directorate. She was removed from service on the ground of wilful absence and negligence in performance of duty by order, dated 26th May, 1990. The appellant approached the departmental authority in appeal which was rejected on 10th July, 1990. The legality of these orders was challenged before the Federal Service Tribunal which was dismissed by the impugned order as time-barred and also on merits. 3. The charge of willful absence from duty was brought against the appellant in the circumstances that she was allowed 30 days earned leave from 2-10-1989 to 31-10-1989. She was also granted leave on full pay from 1-11-1989 to 1-12-1989 and on medical ground from 2-12-1989 to 28-12-1989. It appears that she again applied for leave from 30-12-1989 to 26-1-1990 on the basis of medical certificate but she was directed to appear before Medical Superintendent, Islamabad within a week for second medical opinion. The Medical Superintendent by letter dated 29-1-1990 informed the Director-General that she (appellant) did not report in his office for second medical opinion. But in spite of that she again on the basis of an Out-door Ticket from Federal Government Services Hospital requested for leave from 27-1-1990 to 23-2-1990. She was again directed by the Department on 8-2-1990 and the Medical Superintendent on 15-2-1990 to report for second medical opinion. She was, however, bold enough not to care for these directions and again on the same Out-door Ticket asked for leave from 24-2-1990 to 28-3-1990. It was through telegram, dated 26th February, 1990 that the Department warned the appellant that in spite of Office telegram dated 15-1-1990 and 8-2-1990 she failed to appear for second medical opinion and if this time she again did not report then disciplinary action will be initiated against her. On 3-4-1990 she was reminded by the Department that in spite of office telegrams dated 15-1-1990, 8-2-1990, 26-2-1990
---
## Page 5
and 11-3-1990 she avoided appearance for second medical opinion and if this time through this final direction she did not report within 3 days for the second medical opinion, then her services will be terminated. The Medical Superintendent on 22-4-1990 informed the Department that the appellant did not report. But in spite of this, appellant again applied for leave from 26-4-1990 to 23- 5-1990 on the basis of the same service. It appears that on 29-4-1990 she appeared before the Civil Surgeon who confirmed the genuineness of only one medical certificate issued for leave from 26-4-1990 to 23-5-1990. It was in these circumstances that the appellant was removed from service on 26-5-1990. 4. The above facts indicate that the conduct of the appellant all along remained obstinate and contumacious. It appears that she had taken it for granted that the department was bound to grant her leave on the basis of medical certificate she produced and that they would not enquire about the genuineness of the certificates. If at all in spite of the inherent defect in the medical certificate for leave from 26-4-1990 to 23-5-1990 as the Medical Superintendent has neither confirmed the existence of the ailment nor has verified the identity of the appellant, this certificate is accepted as correct, than it shows that the appellant fearing the fake nature of the other medical certificates either did not produce them or if they had been produced they were not held genuine. The plea of the appellant that she did not know of the telegram, show-cause notice etc. Appears to be ridiculous because she was served through her home address which is situated in T & T Colony. It could not be shown as to how she came to know of the final notice wherein she was warned that if she failed to appear within 3 days then her services will be terminated. Moreover, in her reply to the application for additional document she admits knowledge of show-cause notice. It is also established on record that she continued residing in her official residence in T & T Colony. In any case there is absolutely no explanation for her absence from .23-5-1990 to 26-5-1990. It is also strange to note that she filed departmental appeal the same date i,e, 26-5-1990 on which she was removed from service. It is, thus, clear that she knew about the proceedings but did not bother about it till an adverse order against her interest was passed. The perusal of the memo of review petition would show that the judgment of this Court has been challenged on ground of limitation only and not on merits. Therefore, on merits the orders of Departmental Authority and the Federal Service Tribunal are perfectly correct. 5. The Federal Service Tribunal was also correct to hold that the appeal before it was time-barred. The appellant conceded that the appeal is being filed after prescribed period of limitation therefore, she submitted an application under section 5 of the Limitation Act for condo nation of delay. In this application it is admitted that the order of departmental authority in her appeal was intimated to her on 15-7-1990. The appeal before the Tribunal should, therefore, have been filed on 15-8-1990 but it was filed on 18-10-1990 with a delay of more than 2 months. This cannot be disputed that under the law the delay of each day in filing the appeal is to be reasonably explained. In the application for condo nation the reason for delay has been stated in para.2 which reads; "that the petitioner's departmental appeal was rejected on 10-7-1990. At that time the petitioner was pregnant. She was under medical treatment. She was operated on 8-8-1990 and gave birth to a female baby. She remained on bed 6/8 weeks under medical advice." For this malady she relies on the medical certificate dated 30-9-1990 issued from a private Clinic wherein operation is stated to have been performed on 8-8-1990 and she was advised rest for 6 weeks. The appellant has not made any effort to prove the identity and admissibility of this certificate in any manner. It shows to have been signed "For Abrar Surgery (Pvt.) Ltd". However, it could not be explained as to whether the authority signing it was competent to do so. In any case even if in spite of its doubtful nature if the period of six weeks is counted from the date of operation then it would end on 20-9-1990 but the appeal was filed on 18-10-1990 i,e, 28 days thereafter. Appellant did not hesitate to make misstatement in the application showing that she remained on .Bed for 6/8 weeks
---
## Page 6
under medical advice. Even if the period of rest is read as 8 weeks then the last date for filing the appeal comes to 5-10-1990 and in that case the appeal would be barred by 13 days. Probably being conscious of this delay she managed to obtain another certificate on 7-3-1994; after about four years of the actual ailment and submitted it along with the review petition to show that she was advised rest till 20-10-1990. To say the least it was neither proper for the appellant nor for that matter for the concerned Doctor to go such out of the way to change the course of judicial proceedings by these maneuvered and unbecoming tactics. It was noted in the order of this Court of 3rd July, 1994 whereby the review petition was fixed for rehearing that if six weeks' time is counted from 30-9-1990 which is the date on which the certificate was issued then six weeks rest was to expire on 15-11-1990 and appeal having been filed on 18-10-1990 was apparently within time. However, neither the appellant has pleaded her case on these lines nor such inference can be supported from the material on record. It is stated in the certificate that the appellant was operated on 8-8-1990 and was advised rest for six weeks. The reasonable inference is that six weeks is to be reckoned from the date of ailment. But the stand of the appellant, as taken in the application for condo nation, is that after the operation on 8-8-1990 she remained on bed for 6/8 weeks under medical advice. The appellant also herself did not consider the period of rest to run from the date of certificate; firstly, because in that case there would have been reason for her to submit an application for condemnation of delay. Secondly, she was not required to obtain another certificate after about four years when she was advised rest till 20-10-1990. And thirdly, the appellant in ground "(a)" of her review petition admits that she remained under treatment till 20- 10-1990. The impugned judgment of the Federal Service Tribunal contains cogent reasons for dismissal of the appeal on merits as well as on limitation and we find no justification to differ with it. This appeal is, therefore, dismissed with costs. Appeal dismissed. 1998 PLC (C.S.) 521 [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui and Munawar Ahmad Mirza, JJ INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others versus MAHMOOD IKRAM Civil Appeal No,937 of 1996, decided on 13th February, 1998. (On appeal from the judgment dated 14-5-1995 passed by the Punjab Service Tribunal, Lahore, in Appeal No,27 of 1993). (a) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R. 6---Probation of Offenders Ordinance (XLV of 1960), S.11--- Constitution of Pakistan (1973), Art. 212(3)---Misconduct---Recovery of contrabands from civil servant---Dismissal from service-- -Criminal Court on confession of commission of crime by civil servant granting him probation in lieu of sentence---Dismissal from service challenged by civil servant whereupon Service Tribunal taking lenient view converted penalty of dismissal from service into reduction of pay---Validity--- Leave to appeal was granted to consider effect of probation allowed to civil servant after his conviction qua misconduct attributed to him. [p. 524] A (b) (c) #TBS (d) PLC (e) #TBE (f) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R.6---Probation of Offenders Ordinance (XLV of 1960), S. 11---Conviction and probation of civil servant on charge of criminal offence---Departmental proceedings for enquiring into misconduct
---
## Page 7
of delinquent civil servant---Effect of pendency of criminal trial and effect thereof on ultimately holding him guilty or innocent by Criminal Court---Competent Authority with regard to act or omission of civil servant constituting misconduct, was not precluded from initiating proceedings under relevant Efficiency and Discipline Rules irrespective of pendency of criminal trial---Criminal Court's final decision would have merely supporting evidentiary value, for, both such proceedings have distinct methods and basis for arriving at final conclusion. [p. 525] B Dy. I.-G. Police v. Anis-ur- Rehman Khan PLD 1985 SC 134 rel. (g) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R. 6---Probation of Offenders Ordinance (XLV of 1960), S.11(2)---Constitution of Pakistan (1973), Art. 212---Civil servant---Charge of criminal offence---Conviction---Probation---Effect of probation of penalty contemplated by Punjab. Police (Efficiency and Discipline) Rules, 1975--- Offender on grant of probation, although would get opportunity of rehabilitation in society without stigma of conviction, yet in case of civil servant, without prejudice to benefit available under Probation of Offenders Act, 1960, Departmental Authority was not precluded from initiating action for misconduct under relevant Efficiency and Discipline Rules---Service Tribunal had partially accepted appeal without assigning reasons or examining effect of S.11, Probation of Offenders Ordinance, 1960---Service Tribunal by merely taking into consideration lenient view of Trial Magistrate placing civil servant on probation, had proceeded to award lesser penalty to civil servant, which was violative of law---Departmental Authority had independently drawn proceedings contemplated under Punjab Police (Efficiency and Discipline) Rules, 1975 by giving show-cause notice to civil servant, entertaining his reply and providing hearing and passed final order i,e, dismissal from service---Validity of such Departmental proceedings was neither analysed by Service Tribunal nor…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.