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Petitioner: SHABBIR HUSSAIN SIDDIQUI VS Respondent: MEMBER, ADMINISTRATION, CORPORATE LAW AUTHORITY, GOVERNMENT OF PAKISTAN
1990 P L C (C
1990 P L C (C.S.) 85
[Federal Service Tribunal]
Before Kh. Abdul Jalil arid Ch. Hasan Nawaz, Members
SHABBIR HUSSAIN SIDDIQUI
versus
MEMBER, ADMINISTRATION, CORPORATE LAW AUTHORITY,
GOVERNMENT OF PAKISTAN and another
Appeal No.148 (L) of 1986, decided on 2nd September, 1989.
Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑
‑‑‑R.4‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Compulsory retirement‑‑ Civil servant charged with misconduct of absence from duty without leave‑‑‑Civil servant assailing retirement order on the ground that requirements of Rules were not fully observed either by the Authorized Officer or by the competent Authority‑‑‑Legality of proceedings‑‑‑Enquiry Officer's proceedings did not suffer from any defect as to vitiate the impugned order‑‑‑Nothing wrong was found with the procedure adopted either by the Authorized Officer or by the competent Authority‑‑‑Nothing was legally wrong with the second show‑cause notice, which was sent to the civil servant along with report of the Inquiry Officer after it had been tentatively decided that penalty of dismissal from service would be imposed against him‑‑‑Civil servant was given opportunity to defend himself and order of his retirement from service was by no means, either arbitrary or unjust or in violation of principles of natural justice‑‑‑Civil servant's absence from office was without any justification and the certificate from a private doctor was not worth any reliance‑‑‑Fact thus stood established that civil servant had been deliberately absenting himself from the office on different occasions, for a long period, without leave and that his wilful absence was in clear disregard of office discipline, amounting to gross misconduct, as had justified the disciplinary proceedings and ultimate order of retirement from service.
Appellant in person.
Hafiz Tariq Naseem with Muhammad Khan and Ahmad Muzzamil, Representative / D.R. for Respondents.
Date of hearing: 22nd August, 1989.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑‑While he was serving as a Stenotypist in the office of Deputy Registrar Joint Stock Companies Lahore, the appellant was served with the following charge sheet (Annex. H):‑
"CHARGE‑SHEET
Whereas you, Mr. Shabbir Hussain Sidiqui, employed as Steno-typist in the office of (Assistant Registrar) now Deputy Registrar, Joint Stock Companies, Lahore, appear to be guilty of the following charges:‑
(1) That you were unauthorisedly absent from duty for the following periods:‑
(i) 28‑12‑1982 to 24‑3‑1984
(ii) 2‑4‑1984 to 26‑4‑1984
(iii) 2‑5‑1984 to 22‑7‑1984
(iv) 5‑5‑1985 to 9‑5‑1985.
(v) As communicated by the Regional Office, Lahore you proceeded on two days leave for 19‑5‑1985 and 20‑5‑1985 but did not come back and applied for 30 days leave or medical grounds w.e.f. 21‑5‑1985 along with a medical certificate of a local private doctor. You were referred to Civil Surgeon, Lahore for second medical opinion but you did not appear before him and are still absent without leave.
(2) That you left for abroad without ex‑Pakistan leave and without obtaining the necessary permission for this purpose.
And whereas the above charges constitute misconduct in terms of Government Servants (Efficiency and Discipline) Rules, 1973.
And whereas it has been decided to hold an enquiry against you under the said rules.
And whereas Mr. Ashfaq Ahmed Khan, Assistant Chief, Corporate Law Authority, Islamabad has been appointed as Inquiry Officer to conduct the enquiry into the aforesaid charges.
Now, therefore, you are required under sub‑rule (2) of rule 6 of the rules ibid to put in your written defence to the above-named Inquiry Officer within 14 days of the date of issue of this charge‑sheet and also to state whether you desire to be heard in person or lead any evidence.
Sd/ (R. R. Alvi) Chief. (Authorised Officer)."
2. The charge‑sheet was accompanied by the following statement of allegations (Annex. H):‑
"STATEMENT OF ALLEGATIONS
Mr. Shabbir Hussain Siddiqui employd as Steno-typist in the office of Deputy Registrar, Corporate Law Authority (Regional Office) Lahore applied for and was granted two days' casual leave for ?,6‑12‑1982‑& 27‑12‑1982. He failed to resume duty on 28‑12‑1982. An application dated 27‑12‑1982 was sent by him by post and was received in Company Registration Office, Lahore on 1‑1‑1983 wherein he requested for being treated on extraordinary leave for one year from 1‑1‑1983. Since his request for the grant of 365 days extraordinary leave had not been acceded to, he was directed to resume duty immediately vide NO.ARL/578, dated 15‑1‑1983. The letter dated 15‑1‑1983 directing him to resume duty was received back undelivered with the remarks of postal authorities indicating inter alia "the addressee has left for Iran and was not available at his address". Mr. Shabbir Hussain Siddiqui had been accordingly wilfully and un-authorised absent from duty since 28‑12‑1983 and had also left the country without obtaining permission to proceed abroad or getting ex‑Pakistan leave. Nevertheless, he also remained absent un-authorised for the following periods:‑‑
(i) 2‑4‑1.984 to 26‑4‑1994
(ii) 2‑5‑1984 to 22‑7‑1984
(iii) 5‑5‑1985 to 9‑5‑1985."
3. Mr. Hizbullah Siddiqui, Assistant Chief Corporate Law Authority (Headquarters) was appointed on 18‑fi‑1985 as Inquiry Officer to go into the allegations against the appellant. His report on charge No.1 (i) was that the appellant remained absent without leave from duty during the period from 1‑1‑1983 to 24‑3‑1983, in spite of the fact that his request for grant of leave for this period had not been granted by the competent authority. He found that he had not attended the office on 28‑12‑1982 in accordance with the relevant page of the attendance register and that period from 28‑12‑1982 to 31‑12‑1982 could also be included in the period of absence. The inquiry officer's findings on other points in the charge‑sheet were that he remained absent from duty without permission from 2‑4‑1984 to 24‑4‑1984, and then again from 5‑5‑1985 to 9‑5‑1985. He mentioned in the report that application for leave for five days was submitted on 5‑12‑1985 after this period had already expired.
4. It is also in the report regarding charge No.1(iii) that on 30‑4‑1984 the appellant submitted application dated 29‑4‑1984 to the address of Registrar Joint Stock Companies, Islamabad requesting his transfer to Registration Office Multan and for the grant of one year's leave without pay w.e.f. 2‑5‑1984 and then left the office without obtaining permission. The inquiry officer observed that this fact was admitted by him in para 6 of his explanation in writing to the charge -sheet.
5. While dealing with charge No.1(v) in respect of the period from 21‑5‑1985 to 19‑6‑1985, the Inquiry Officer found that the appellant was granted two days' Casual Leave from 19‑5‑1985 to 20‑5‑1985, but he failed to report on the expiry of this leave and sent an application from Multan for 30 days leave, on medical grounds from 21‑5‑1985 and that the application was accompanied by a medical certificate which purports to have been issued by Doctor Mr. M. Iqbal Mughal of Lahore who at that time was working as Demonstrator in a department of Nishtar Medical College, Multan. The appellant joined on 23‑6‑1985 along with medical certificate of fitness. Leave even for this period was not granted by the department and the appellant was informed by the Deputy Registrar that lie should get himself medically examined by the Civil Surgeon Lahore for a second medical opinion. The inquiry officer, however, observed that request for leave should have been considered on medical grounds. The report regarding charge No. II was that it had not been established.
6. On the basis of inquiry officer findings, the appellant was served with another show‑cause notice dated 6‑10‑1985 where it was stated that in accordance with the report of the inquiry officer, all the charges, except those mentioned against Nos.1(v) and 2 had been established. The notice informed him that it had been proposed to recommend to the "authority" that he should be dismissed from service. Copy of the inquiry report was enclosed with the notice and the appellant was called upon to show cause as to why penalty of dismissal from service should not be imposed against him in view of his prolonged unauthorised absence from duty. He submitted explanation in writing dated 28‑10‑1985 to this notice, after which he was granted a personal hearing by the authorised officer.
7. The appellant was compulsorily retired from service w.e.f. 27‑1‑1986 (afternoon) by order dated 2‑2‑1986 in consequence of aforementioned disciplinary proceedings, after it was held by the competent authority that he was proved to have been guilty of misconduct. His departmental appeal dated 22‑2‑1986 against the order of his compulsory retirement was rejected by Chairman, Corporate Law Authority's (respondent No.2) order dated 20‑5‑1986 after due consideration.
8. Which led him to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 where it has been prayed that the impugned order of compulsory retirement dated 2‑2‑1986 as also the subsequent order dated 20‑5 1986 rejecting his appeal may be set aside.
9. Detailed account of the appellant's pleadings is not necessary and it would be sufficient to say that he has made an attempt to justify his absence from the office on medical grounds. His case is that he remained absent from the office either on account of his own illness or that of his daughter and that his absence was not wilful, so as to warrant the passage of impugned order of his compulsory retirement from service. It was further pleaded that the impugned order was not passed by the competent authority and that he had not been given personal hearing by respondent No.1 before the passage of this order.
10. The allegations made by the appellant on merits of the case were denied by the respondents whose defence, in the main, is that there was no justification for prolonged absence of the appellant from the office; that the medical certificates produced by him were not reliable and that he had been guilty of misconduct. It was further pleaded that personal hearing was granted to him in accordance with the rules and that the impugned order was passed by the competent authority.
11. It is contended, as we have already noticed, by the appellant that the impugned order was passed by the Administrative Officer who was not the competent authority. This however, seems to be factually incorrect, in that the order had been passed by the competent authority and what seems to have been done by the Administrative Officer is that he informed the appellant of the passage of this order. The impugned order clearly shows that it was passed by the competent authority under the (Efficiency and Discipline) Rules, 1973. Even the objection regarding personal hearing is without any substance, for the record shows that this was granted to him by the authorised officer and there has been due compliance with the Rules.
12. We find that there was nothing wrong with the procedure adopted either by the authorised officer or by the competent authority and that the requirements of rules were fully observed in this case. Even the inquiry officer's proceedings did not suffer from any defect, as could have vitiated the impugned order. Further, there was nothing legally wrong with the second show‑cause notice, which was sent to the appellant along with report of the inquiry officer, after it had been tentatively decided that penalty of dismissal from service will be imposed against the appellant. We feel no hesitation in saying that he was given an opportunity to defend himself and that the order of his retirement from service was by no means either arbitrary and unjust or in violation of the statutory rules and the principles of natural justice.
13. On merits, the main ground on which cancellation of the impugned order is being sought, was that the appellant's absence from the office was due to illness and that it was not willful, as could have amounted to misconduct justifying his compulsory retirement from service. As we see from the charge, he is alleged to have remained absent from duty without permission for different periods from 28‑12‑1982 to 22‑6‑1985. The appellant's case is that lie remained absent during this period because of illness. However, the only way of justifying this prolonged absence was production of some reliable evidence in support of the fact that he had been ill and that his absence from duty was not deliberate. It is, however, borne out by the record and the report of the inquiry officer that he never furnished any medical certificate alongwith his applications for leave. The first application which was accompanied by a medical certificate was the one where he sought leave for 30 days w.e.f. 21‑5‑1985. As we have already seen, two days' casual leave for 19th and 20th May, 1985 was granted to him and he did not join his office after the expiry of this leave and instead sent an application for 30 days' leave on medical grounds from Multan. It was for first time that he sent a medical certificate alongwith the application. Even during the course of arguments at the Bar we confronted him with the situation and he had no alternative but to concede that it was the first occasion when he sent a medical certificate alongwith the application. This would suggest that all other medical certificates which are now on record as Annexures C/1, C/2, D/1, D/2, D/3, D/4, D/5, in respect of the period from 12‑9‑1982 to 24‑3‑1984 were subsequently produced during the course of disciplinary proceedings. It appears even from the explanation in writing against the charge sheet that he had not been sending the medical certificates alongwith his applications. Strange enough, he said that he could produce medical certificates as and when required. If lie was suffering from any ailment, as he claims to have been, there was no reason why he could not procure the necessary certificates from the doctor concerned and send them to the competent authority alongwith his applications. That fie failed to do so, would justify an inference that the allegation regarding his prolonged illness is without any substance and that he subsequently procured the medical certificates in an attempt to explain his absence.
14. Further, he could not claim leave as a matter of right and the respondents had every justification for refusing to grant his applications. Late procurement and production of medical certificates constitutes only a circumstance to indicate that they were not enough to justify the appeal; prolonged absence from the office. Even if they be examined on their merits, do not establish that the nature of ailment was such as could have physic prevented him from attending the office for such a long time on differ occasions. Certificate at Annex E/1 shows that he was admitted in the Nishter Hospital Multan on 12‑9‑1982 and discharged on 14‑9‑1982, the disc mentioned was Hernia and the treatment was apparently a minor operation he was advised rest for six weeks. Certificate, Annex C/2 bears out that he got admission into the hospital on 31‑10‑1982 for anal fissure. He was declared on 1:i‑11‑1QS22 to perform his duties. Eventually, as it appears from paragraph s his pleadings, he joined his office on 16‑11‑1982. On 20‑11‑1982 he made application for one year's leave extraordinary from 11‑12‑1982. He then claims have consulted his surgeon on 30‑11‑1982. Leaving aside other circumstances there appears to be no justification for his absence for 28th December, 1982, 29 of December, being public holiday on account of Eid‑Milad‑un‑Nabi. It is clear from his pleadings as to when he actually left Lahore for Multan. In I subsequent application, he sought leave for one year from 1‑1‑1983 to 31‑12‑19 but there is no explanation of his absence for 28‑12‑1982. Although he claims have applied for leave for this date, no proof of this fact is available from the record and the respondents deny having received any such application.
15. Then, in certificate Annex D/1 he was advised rest for a period of three months from 30‑12‑1983 to 29‑3‑1983, because in the doctor's opinion, his wound got infected at the place of operation. He was examined on 30‑3‑1983 and forth rest for a period of three months was advised uptil 30‑6‑1983 because of infect in the wounds. On the expiry of this period, on 1‑7‑1983, as it appears from certificate at Annex D/2, he got himself examined by another doctor Muhammad Ibrahim Malik, who did not belong to Nishtar Hospital. The certificate indicate that he was operating his own clinic known as Modern Chest Clinic. H recommended three months leave from 1‑7‑1983 to 30‑9‑1983 for treatment and rest on the ground that the appellant had developed "post operation complication in the form of abscess. Then, we see from certificates Annex D/3, D/4, D/5 that the same private doctor examined him on 1‑10‑1983,1‑1‑1984 and then 25‑3‑1984 On 1‑10‑1983 he recommended further leave for three months from 1‑10‑1983 to 31‑12‑1983 and then on the subsequent occasion from 1‑1‑1984 to 24‑3‑1984, or account of post operative infection for treatment and rest. Finally, he war declared fit to resume duty on 25‑3‑1984. It may be mentioned that by the lime certificate Annex D/5 was issued, he had already admittedly been served with charge‑sheet dated 20‑5‑1983. There are reasons to believe that the appellant was compelled to join his office on account of this charge‑sheet and certificate Annex D/5 seems to have eventually been procured declaring him fit to resume duty from 25‑3‑1984. We feel no hesitation in saying that his absence from office after 1‑7‑1983 was without any justification and that he procured certificates Annexures D/2 to D/5 from a private doctor only to justify his absence. We rind that these certificates are not worth any reliance.
16. In paragraph 3 of his pleadings it was stated that after resuming duty on 25‑3‑1984, the appellant applied for two days casual leave with permission to leave the station from 31‑3‑1984 to 1‑4‑1984 to bring, his household effects from Multan which was accordingly granted by the respondent. It is averred that on reaching Multan on 29‑3‑1984, he found that his daughter was seriously ill and that he had to get her admitted in the emergency ward of Nishtar Hospital Multan on 29‑3‑1984 where she remained confined to bed till 12‑4‑1984: "
17. A different story has, however, been told in the explanation in writing, where it was stated by the appellant that on 29‑3‑1984, he came to Multan after obtaining two days casual leave to fetch his luggage and that on reaching home at 10‑00 p.m. on the same day, he found that his daughtermas seriously ill and so he got her admitted in‑the emergency ward of Nishtar Hospital. Here again, it is not clear as to when he actually left Lahore for Multan. According to his, pleadings, the casual leave was from 31‑3‑1984 to 1‑4‑1984: If this was so, we do not know what was the justification for being absent on 30‑3‑1984, assuming that he left Lahore after the office hours on 29‑3‑1984. Then, it may be pointed out that the date of discharge of his daughter appears to have been changed to 12‑5‑1984 in medical certificate Annexure E. Apart from these circumstances, we do not think that the ailment of his daughter could justify his absence for that much period, considering that she could have been attended by any female member, of the appellant's family.
18. Certificates Annexures F, G/1, G/2, and G/3, are also in respect of the ‑illness of his daughter during different periods from 25‑4‑1984 to 16‑6‑1985. Certificates Annexures F, G/2 and G/3 purport to have been issued by some doctor of Nishtar Hospital Multan, whereas certificate annex G/1, was issued by one Dr.Niaz Ahmed Baluch. Even if these certificates are believed as, correct, they were not sufficient to justify the appellant's absence from office on the ground of illness of his daughter on different occasions.
19. As we have already noticed, the accused was granted two days, casual leave from 19‑5‑1985 to 20‑5‑1985: He did, not join after the expiry of this leave and instead sent an application for leave from Multan on medical ground w.e.f. 21‑5‑1985. This was accompanied by a certificate purporting to have 6e01 issued by tine Doctor Muhammad Iqbal Mughal who at that time was working as Demonstrator in one of the departments of Nishtar Medical College Multan. The department did not believe the genuineness of this certificate and asked the appellant to; get himself examined by the Civil Surgeon of Lahore for second medical opinion. We feel that there was every justification for such a course, considering that the appellant had been making applications for leave of medical grounds for the last two and half years.
20. It appears from the explanations submitted by the appellant on different occasions that he wanted to get himself transferred from Lahore to Multan which was the place of his residence. If the certificates produced by him; and his conduct be seen in the context of his desire to get back to Multan, it can very easily be understood why he had been absent without leave on many occasions during; the period from 28‑12‑1982 to 21‑5‑1935. On most of the occasions, he seems to have invented excuses to justify his absence; which appears to be all the more probable if seen in the light of the respondent's pleadings in defence, where they have given a detail of how he remained absent in spite of the awareness that his applications for leave were not finding favour with the department and that they were not believing in the truth of his frequent assertions of illness. It, therefore, stands established from the report of the inquiry officer and other material on record that the appellant had deliberately been absenting himself from the office on different occasions for a long period without leave and that his wilful absence was in clear disregard of office discipline, amounting to gross misconduct, as had justified the disciplinary proceedings and the ultimate order of his compulsory retirement front service.
21. For these reasons, the appeal is dismissed as being without any substance. There will be no order as to costs.
22. Parties to be informed.
AA./501/Sr.F
Appeal dismissed