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Petitioner: Dr. ABDUL LATEEF VS Respondent: MEDICAL SUPERINTENDENT, LYARI GENERAL HOSPITALHonorable Justice JUSTICE (RETD.) ABDUL GHANI SHAIKHRiaz Hussain Baloch,Tabassum Ghanzanafar
2005 P L C (C
2005 P L C (C.S.) 727 [Sindh Service Tribunal] Before Justice (Retd.) Abdul Ghani Shaikh, Chairman and Nur Ahmad Shah. Member-II Dr. ABDUL LATEEF versus MEDICAL SUPERINTENDENT, LYARI GENERAL HOSPITAL and 3 others Appeal No.248 of 2002, heard on 30th April, 2004.
Sindh Civil Servants (Efficiency and Discipline) Rules, 1973--- ----Rr. 3, 4(1)(b)(iii) & 5---Sindh Service Tribunal Act (XV of 1973), S. 4---Removal from service---Appeal---Appellant posted as Medical Officer, was removed from service after issuing him show-cause notice on allegation that he remained absent from duty unauthorizedly without prior intimation and permission---Appellant had pleaded that his mother became seriously ill and he remained busy in providing her medical treatment---In support of his plea he had produced medical prescriptions, medical test reports, copies of E.C.G.---Leave applied by appellant was neither granted nor refused by the Authority---Record did not indicate that appellant before issuance of show-cause notice was ever required to resume his duties---Imperative duty of department to have inquired about the genuineness or otherwise of ailment of mother of appellant, but instead of doing so, appellant was served with show-cause notice followed by final show-cause notice and finally appellant was removed from service---Any order passed in derogation of the prescribed procedure, would have no legal sanctity in the eye of law---In all proceedings, whether judicial or administrative principles of natural justice had to be observed---Neither prescribed procedure was followed nor principles of natural justice were complied with---Order of removal of appellant from service, was set aside and appellant was directed to be reinstated in service. Riaz Hussain Baloch for Appellant. Tabassum Ghanzanafar, Asstt. A.-G. for Respondent. Date of hearing: 13th April, 2004.
JUDGMENT JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--This appeal is directed against the original impugned order dated 13-7-2002 passed by respondent No.2, whereby appellant was awarded major penalty of removal from service. 2. Concisely, the facts leading to the instant appeal are that appellant was lastly posted as Medical Officer, Sindh Government Lyari General Hospital, Karachi. He was served with a show-cause notice dated 12th September, 2000, as under:-- The Medical Superintendent, Sindh Government Lyari General Hospital, Karachi has reported that you have been absent from duties unauthorizedly w.e.f. 1-6-2000 till to date. This act tantamounts to misconduct on your part. In his reply, appellant explained the reasons of his absence that due to serious illness of his widow mother, he being the only son was looking after her and that he also submitted application for 10 days causal leave followed by application for grant of 120 days. His reply was not found satisfactory, as such, he was served with a final show-cause notice dated 4-12-2002. Ultimately, vide original impugned order assailed herein, appellant, with the approval of authority competent, was awarded major penalty of removal from service. Being aggrieved by the said punitive order. Appellant preferred departmental appeal to respondent No.4, which remained unresponded. 3. In support of appeal, it was argued that disciplinary proceedings initiated against appellant were opposed to facts, justice and in derogation of mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973, inasmuch as at no stage the department attempted to verify the truthfulness or otherwise of the stand taken by the appellant in his defence or he was given any opportunity to prove his innocence. It was contended further that appellant was called for personal hearing by the respondent No.2 on 25-6-2001 and after hearing appellant, the respondent No.2 while taking lenient view exonerated appellant s earlier absence and he was given posting at Rural Health Centre, Jarwar District Ghotki, but appellant due to certain un-avoidable circumstances could not join his new place of posting and thereafter without issuing any further show-cause notice or any chance to defend himself, he was ousted from service through the impugned order. Which is neither maintainable nor sustainable and may be set aside. 4. In rebuttal, learned Asstt. A.-G. submitted that appellant remained absent unauthorizedly without prior intimation and permission. However, the department by taking lenient view posted him at Rural Health Centre, Jarwar. District Ghotki but instead of honouring the order of competent authority, appellant without any justice and plausible reasons failed to join his place of posting as reported by the Executive District Officer (Health), Ghotki and that the appellant was again called by respondent No.3 for personal hearing but appellant chose to remain absent and could not avail the chance of personal hearing to explain the reasons of non-joining. In these circumstances, learned Asstt. A.-G. stated, that appellant was rightly awarded major penalty which calls for no interference. 5. We have considered the above submissions and have perused the case papers placed on the record. It is the case of appellant that while he was performing his duties a Lyari General Hospital, his widow mother became seriously ill. He, therefore, took her to hospital for necessary medical treatment. Initially he applied for 10 days causal leave followed by another application for 120 days earned leave. No order of acceptance or otherwise was passed by the competent authority on the said application. It appears that appellant remained busy in providing medical treatment to his ailing widow mother. In support of such contention he produced medical prescription medical test reports, copies of E.C.G. etc. Admittedly, leave applied for by him was neither granted nor refused, nor the record indicates that appellant before issuance of show-cause notice was ever required to resume his duties. In his circumstances, it was imperative duty of the department of have enquired the matter about the genuineness or otherwise of ailment of appellant s widow mother but instead of doing so, appellant was served with show-cause notice followed by final show notice. Perusal of the record further reveals that appellant was given personal hearing by respondent No.2 on 25-6-2001 and by taking lenient view appellant s posting order at Rural Health Centre, Jarwar, District Ghotki was issued on 28-12-2001. Meaning thereby that appellant was impliedly exonerated from the charge of absence from duties from 1-6-2000. He, however, failed to resume his duties at his new place of posting. Thereafter, without giving him any further show-cause notice, he was removed from service. This action on the part of respondent No.3 was in violation of the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973, coupled with principles of natural justice. 6. It is well-established principle of law that any order passed in derogation of the prescribed procedure, the same has no legal sanctity in the eye of law. Likewise it is a settled proposition of law that in all proceedings by whomsoever held whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in the consequences affecting persons or property or other right of the person concerned . In the instant case too, neither the prescribed procedure was followed as stated above nor the principles of natural justice were complied with. The order impugned herein, thus, cannot be sustained. 7. Accordingly, the appeal is accepted and the impugned order is set aside. The appellant is directed to be reinstated in service. The intervening period be treated as leave of kind due . The department, however shall be at liberty to proceed against the appellant strictly in accordance with the provisions embodied in the Sindh Civil Servants (E&D) Rules, 1973. 8. Announced in open Court.
H.B.T./24/KST Appeal allowed.