Full Judgment Text & Judicial Ruling

1991 P L C (C

1991 P L C (C.S.) 262

[Federal Service Tribunal]

Before Khawaja Abdul Jalil and Ch. Hassan Nawaz, Members

HAFEEZUL HAQ

Versus

DIRECTOR-GENERAL, CENTRAL DIRECTORATE OF NATIONAL SAVINGS and others

Appeal No. 198(L) of 1987, decided on 8th May, 1990.

Government Servants (Efficiency and Discipline) Rules, 1973--

----S. 4---Dismissal---Misconduct and inefficiency---Appellant, National Savings Officer (Inspection), who was removed from service for misconduct and inefficiency, as he was alleged to have consumed more time in completing audit of National Savings Centres than was taken by other Inspecting Officers in respect of period of equal duration---Further allegation against appellant was that while conducting audit of National Savings Centre, he failed to submit work diary in accordance with relevant instructions for purpose of avoiding fair assessment of daily progress of work---Allegations on charge of inefficiency were such in nature as required evidence for proof but authorised officer decided that no inquiry was required and although appellant stated that he had strained relations with Inquiry Officer no opportunity was afforded to him to disprove charge-- Inquiry Officer who was inimical against appellant was made to sit as a judge in his own cause which vitiated proceedings that followed and was against demand of justice---Appellant protested that said Inquiry Officer was not acceptable to him but in spite of protest same person held an ex parte inquiry and eventually appellant was dismissed from service---Order of removal of appellant from service was passed not by authority/competent officer---Held, since relations of appellant with Authorised Officer were strained, the latter should not have decided about necessity or otherwise of an inquiry, his findings in this respect and subsequent recommendations were tainted and prejudiced against appellant which circumstance was sufficient to vitiate entire proceedings and render them void and of no legal effect---Order of removal of appellant from service was set aside and appellant reinstated in service.

WAPDA through its Chairman v. Saeed Ahmad 1985 S C M R 1887; Major Muhammad Nawaz v. Pakistan through Secretary, Communication P L D 1970 Lah. 811; Mohammad Mohsin Siddiqui v. Government of West Pakistan PLD 1964 S C 64; Haji Ghulam Mustafa v. Secretary, Government of Punjab, Agriculture Department 1973 P L C 308; Muhammad Abdullah Khan v. National Bank of Pakistan and two others 1980 P L C (C.S.) 105; Province of Punjab through Secretary, Home Department, Lahore and others v. Malik Mukhtar Ahmad 1989 S C M R 551 and Malik Mukhtar Ahmad v. Superintendent of Police, Attock and two others 1982 P L C (C.S.) 238 rel.

Masood Ahmad Riaz for Appellant.

Hafiz Tariq Naseem with Muhammad Shahid, D.R. for Respondents.

Date of hearing: 1st March, 1990.

JUDGMENT

CH. HASAN NAWAZ (MEMBER): --While in service as National Savings Officer (Inspection), on 3-7-1984, the appellant was served with a notice by Mr. Muhammad Fasih Khan, Joint Director (respondent No.3) calling upon him to show cause within fourteen days of its receipt, as to why action against him should not be taken under the Government Servants (Efficiency & Discipline) Rules, 1973 on the allegations of misconduct and inefficiency and why major penalty of dismissal from service should not be imposed against him. The notice was accompanied by a statement of items/record which the appellant had failed to check at the National Savings Centre of Fortress Stadium, Lahore. (Annexure `A').

2. The appellant's explanation in writing dated 16-7-1984 (Annexure `B') failed to find favour with respondent No.3 who awarded minor penalty of withholding his increment due on 1-12-1984 for one year. Departmental appeal dated 9-9-1984 (Annexure `C') addressed to the Chief Director, National Savings, Islamabad was accepted on 15-10-1984 and the impugned order of minor penalty passed by respondent No.3 was set aside.

3. Two years later on 3-12-1986, he was again served with a notice under Rule 5(1)(iii) of the Efficiency and Discipline Rules, 1973, whereby he was required to show cause (in writing) within seven days of 'the receipt of the notice as to why major penalty of dismissal from service should not be awarded against him in consequence of disciplinary proceedings. Like the previous one, this was also issued by respondent No.3 who decided as Authorised Officer that it was not necessary to hold an inquiry against the appellant under the circumstances of the case (Annexure `G'). An explanation in writing (Annexure `G/1') was submitted and personal hearing was also granted to the appellant by respondent No.3, on whose recommendation he was finally removed from service by the competent authority on 25-1-1987.

4. The appellant's departmental appeal dated 25-2-1987 (Annexure J) having failed to produce any result, he came to the Tribunal on 24-6-1987 within the statutory period with .the present appeal under section 4 of the Service Tribunals Act, 1973, where it is prayed that the impugned order of his removal from service dated 25-1-1987 may be set aside and he may be reinstated in service with fullback benefits.

5. The appellant's case is that Muhammad Fasih Khan, Joint Director (respondent No.3) developed disliking of the appellant sometime in the year 1984 and that initiation of disciplinary proceedings with service of show-cause notice dated 3-7-1984 was the result of this personal disliking. The acceptance of departmental appeal further annoyed respondent No. 3 and their relations became not only highly strained but almost inimical; which resulted in the initiation of fresh disciplinary proceedings with service of show-cause notice dated 3-12-1986. The main thrust of the case is that "entire proceedings stood vitiated due to personal bias and malice of Muhammad Fasih Khan". It was pleaded that he was not competent to initiate disciplinary proceedings and that he was debarred from acting as an Authorised Officer in the matter and decide that no inquiry was necessary, either in the light of the facts of the case or the interests of justice. The recommendation for his removal from service was, therefore, mala fide and the result of strained relations. It is alleged that respondent No.3 had acted as a judge in his own cause in violation of the principle of natural justice. It was a case of regular inquiry and its denial deprived him of an opportunity to defend himself against the proposed action.

6. In defence it was pleaded that if the appellant had any objection against the conduct of disciplinary proceedings by respondent No.3, "he should have approached the higher authorities". Notice under Rule 5(1) (iii) contains the grounds of action, substance of evidence in support of the allegations and specific action proposed to be taken against him which was followed by personal hearing on 20-12-1986 by the Authorised Officer. It cannot, therefore, be said that he was denied an opportunity of showing cause against the proposed action. The impugned order was passed by the Director General (respondent No.l) as Authority after careful application to the record and the appellant under the circumstances, duly exercised the right to defend against the proposed penalty.

7. Detailed address to certain material facts is necessary to determine whether there is any substance in the allegations that respondent No.3 harboured grudge against the appellant and their relations were strained to an extent, as would have been sufficient to vitiate the disciplinary proceedings and the consequential recommendation for his removal from service. In view of the pleadings of the parties, I feel that this is the only important question in this case, particularly when no offence seems to have ostensibly been committed against the Disciplinary Rules of Procedure.

8. The first in point of relevancy is show-cause notice dated 13-7-1984. The following facts having bearing on the question, can be made out of this notice:

(a) The notice was issued under Rule 5(1)(iii) of the Rules after it was decided by respondent No.3 that no inquiry need be conducted either in the light of the facts of the case or the interests of justice.

(b) The charge was that of misconduct and inefficiency based on certain facts which need not be mentioned in detail. Gist of the allegations is that he consumed more time in completing the audit of National Savings Centres of Abbot Road, Shadman Colony and Fortress Stadium Lahore, than was taken by other Inspecting Officers in respect of period of equal duration. Another allegation was that while conducting audit of National Savings Centre, Fortress Stadium he failed to submit work diary for the period from 16-10-1983 to 30-11-1983 in the desired manner in accordance with the relevant instructions for the purpose of avoiding fair assessment of the daily progress of work.

(c) These allegations in view, an inquiry should have been conducted for substantiation of the charge of inefficiency and misconduct, considering that whether delay in completing the audit work amounted to inefficiency, required a comparative study which could be possible only by an inquiry, where the appellant would have had the opportunity of establishing that his disposal was satisfactory with better quality of work. The question whether the progress of work was unsatisfactory and there was delay in completion of the audit work, depended upon the length of the period under inspection, with volume, nature and quality of work to be inspected. This could be possible only through an independent inquiry, conducted by an officer other than respondent No.3 who had formed a definite opinion about the appellant's performance.

9. The next in point is the appellant's explanation in writing dated 16-7-1984, which he submitted in response to the notice. We may take notice of the following averments from this explanation:

(a) "But, it is only due to bad luck, perhaps, that my performance is not being considered as satisfactory from the last one year and there has been a misunderstanding that I am not performing my duties properly, whereas, if my performance during the last year is compared with my performance during the previous years, it would become clear that my performance remained almost at a constant level and any change in it whenever it occurred was only due to the objective conditions."

(b) "During the previous years, whenever there was some misunderstanding about my prolonged stay at a centre in connection with audit, same type of clarifications were accepted by your goodself, but now from the last one year similar explanations/clarifications are not considered as satisfactory."

10. In addition, the appellant mentioned a few facts regarding performance of other Inspecting Officers for a comparison to show that his disposal was at least as satisfactory as that of other officers who had not been served with a similar notice. Although it has not been said so, the appellant wanted to establish that his performance did not justify the issuance of show-cause notice and initiation of disciplinary proceedings. It was also meant to convey that under the circumstances, service of notice was with ulterior motive and the result of bias.

11. It may also be pointed out as a material fact that in spite of this explanation, which ex-facie seems to be sufficient, minor penalty of withholding one increment for a period of one year was imposed by respondent No.3 with the observation that he had been found guilty of inefficiency and misconduct.

12. The appellant then addressed a departmental appeal on 9-9-1984 to the Chief Director, National Savings Islamabad against the impugned order of minor penalty. The following allegations of this appeal are relevant:

(a) "The action taken by an Authorised Officer in my opinion is one-sided, biased, unfair and it proved that show-cause notice dated 3-7-1984 was issued to me with an intention of mala fide."

(b) "While Muhammad Fasih Khan (respondent No.3) an Assistant Director Inspection, conducted the audit of accounts of NSC Fortress Stadium Lahore, for the period from 24-2-1975 to 13-5-1975 in four days." Total number of Journal entries checked by him were 345 with an average of 86 entries per day."

(c) "Muhammad Fasih Khan, Assistant Director Inspection, (respondent No.3) again conducted audit of this Centre for the period from 14-5-1975 to 11-8-1975 in six working days and checked 625 Journal entries with an average of 104 entries per day."

13. Detailed account of the work of certain other senior officers was also given in the appeal to show that the appellant's output was quite satisfactory in comparison. It was alleged that those officers were considered efficient, despite their disposal and that in the light of this circumstance, the charge of inefficiency and misconduct against him was without justification.

14. It was also alleged that in so far as the appellant's memory goes nobody was proceeded against under the Efficiency and Discipline Rules "on charges of showing low output than others."

15. This explanation found favour with the competent authority and the impugned order of minor penalty was set aside in acceptance of the appeal on 15-10-1984. It is alleged in Para. 3 of the appeal that acceptance of departmental appeal "had serious repercussion on the appellants' service career because Muhammad Fasih Khan got annoyed over the fact that his order was got set aside by the appellant. Not only that, he was further annoyed over the fact that appellant had by giving concrete figures with regard to the working of Mr.Fasih, his other colleagues and appellant's own working, cast personal aspersions over Mr.Fasih and put him in lower esteem under the eyes of the higher authorities."

16. Though in a feeble manner, it has been denied that respondent No.3 got annoyed on account of the acceptance of appellant's appeal. It may, however, be pointed out that the written statement does not specifically plead against the allegation that an account of respondent No.3's work as Inspecting Officer during the inspection of Fortress Stadium Centre Lahore, lowered him in the estimation of his superior officers, which caused further annoyance. Apart from this circumstances, however, it can reasonably be presumed that respondent No.3 could not possibly have relished an account of his own performance in comparison with the work of other officers like Miss Tajwar Sultana and Mr. Abdul Latif, Assistant Director Inspection.

17. In Para. 4 of the appeal; the appellant mentioned certain facts, in an attempt to show that respondent No.3's treatment against him was discriminatory, in that he deputed him for performance of certain duties against relevant instructions. He was asked to conduct the audit of NSC Abbot Road, in July 1984, although he had conducted audit of the same Centre in the previous year of 1983. It has been denied in the written statement that there was any instruction forbidding the entrustment of audit of the same Centre to the same officer for two consecutive years. However, irrespective of this circumstance, he was asked to select any other Centre for audit out of three Centres and that Abbot Road Centre was his own choice. Apart from merits of pleadings in defence on this point, it is evident that relations between appellant and respondent No.3 left almost everything to be desired.

18. Another fact deserves notice. In para. 4(iv) of the appeal it has been alleged that the Chief Director asked Ch.Saeed Ahmad, Joint Director, Directorate of National Savings Lahore to intervene to "arrange a patch-up" between respondent No.3 and the appellant. It is further alleged that a meeting was accordingly arranged during which the appellant told respondent No.3 that he had been victimizing him at the instance of Mr. Sarshar Ahmad Thalia, the then Assistant Director, who did not have good relations with the appellant. It is further pleaded that Mr. Saeed Ahmad submitted a report to the Chief Director that misunderstanding between them had been removed. In the written reply it was pointed out that the appellant had "ascribed the alleged vengeance of Muhammad Fasih Khan to be " only at the instance of" some other officer whereas previously in paras. 2 and 3 of the appeal, he attributed it to the personal disliking and annoyance of Muhammad Fasih Khan". It may be pointed out as a material circumstance that there is no denial of the fact that the aforementioned Ch. Saeed Ahmad was asked by Chief Director to intervene and bring about a conciliation between the parties.

19, On 27-4-1985, the appellant addressed the following letter to respondent No. 3 (Annexure `C/1'):

"Subject: AUDIT/INSPECTION OF NSC. ABBOT ROAD, LAHORE

Kindly refer to your office memo No. F (16) ZL-4/82-1550 dates 25-4-1985 (which was addressed to me and was sent without being even covered in an envelope). In this connection, it is submitted that the first para. of the said memo containing adverse remarks against me are not backed by any solid or documentary evidence, contain no positive logic behind them are based on mala fide intention and I take exception to it.

It is, therefore, requested to either kindly prove the adverse remarks (allegations) under reference or to withdraw the memo under reference."

20. A copy of this letter was communicated to the Director Inspection and Accounts Rawalpindi with the following remarks:

"The Director Inspection & Accounts, Rawalpindi, with the request to kindly refer to my letter No. NSC-(AR-85/636-37, dated 3-3-85 and to please note that the memo No. F(16)ZL-4/82 1550 dated 25-4-85 (photocopy enclosed) is yet another proof of my submissions that the Joint Director, National Savings, Zonal Inspection & Accounts Officer, Lahore, is actively trying his best to spoil my career for the reason best known to him. By issuing such irresponsible letter, the worthy Joint Director is not only interfering in my lawful and sacred official as well as public duties but also he is neither doing any service to Government nor to public and is directly responsible for the wastage of Government Public time and money. It may also be pointed out that I am constantly being forced to work under stress and in a state of mental torture, so (God forbid) if any loss is causes to Government by me during the course of audit under such circumstances, due to omission, overlook or lack of concentration, the Joint Director National Savings, Zonal Inspection & Accounts Office, Lahore, may and should be held directly responsible for the same and I am/would not take any responsibility for that. The Joint Director, National Savings, Zonal Inspection & Accounts Office, Lahore, may please, therefore, be directed to behave like gentleman, to refrain from issuing such letters (under reference) and to create a congenial atmosphere in the office, instead of creating harassment."

21. Certain other letters were addressed by the appellant to the Chief Director, National Savings Islamabad, where serious allegations of partiality, discrimination and mala-fides were made against the respondent. Here again, detailed account of the averments made by the appellant is unnecessary and it is sufficient to say that they were enough to cause further deterioration in their relations.

22. Then, in the background of this correspondence, he was served with another show-cause notice on 3-12-1986 for action under rule 5(1)(iii) of the Rules, obviously after concluding that no inquiry was necessary either under the circumstances of the case or in the interests of justice. The notice is reproduced below because of its importance in the matter.

"Government of Pakistan Zonal Inspection & Accounts Office National Savings, Lahore

No. F(16)ZL-4/82-2958, Dated 03-12-86

SHOW-CAUSE NOTICE

You, Hafeez-ul-Haq, National Savings Officer (Insp), Zonal Inspection and Accounts Office, National Savings, Lahore are charged as under:-

(1) You are in the habit of using intemperate and derogatory language in your letters. In spite of the fact that you apologized in your letter No. NSO(AR).85/766-68, dated 11-5-85, you again started using intemperate language, vide your letters dated 27-4-85, 7-5-85, 28-4-86, 29-4-86, 7-5-86 and 1-6-86, against your Controlling Officer, which constitutes serious misconduct. Some extracts from your letters are given below:

(i) Letter No. NSC-(AR)85/741-42, dated 27-4-1985

The Joint Director, National Savings, Zonal Inspection & Accounts Office, National Savings, Lahore, may please, therefore, be directed to behave like gentleman.

(ii) Letter No. NSC-(AR,)-85/759-60, dated 7-5-85

The remarks contained therein vide your Memo. No.F(16)ZL-4/82-1550 dated 25-4-85 are baseless, ridiculous and uncalled for--

(iii) Letter dated 28-4-86

(iv) Letter dated 29-4-1986

(v) Letter dated 7-5-1986

(vi) Letter dated 1-6-1986

The remarks contained in your letter dated 5-5-86 are not based on facts and if not withdrawn I shall be constrained to deal with the matter accordingly.

(2) You have been disobeying the lawful orders of your Controlling Officer, for instance:

(i) You were directed to pay a surprise visit to NSC-Pattoki and NSC -Chunian, vide this office Memoranda No. F(2)ZL-1/82-2594-95, dated 28-10-86; No.F(2)ZL-1/82-2596-97, dated 28-10-86 and No.F(2)ZL-1/82 2612, dated 28-10-86 but you did not comply with the orders.

(ii) You were asked to wait in office on 28-10-86 for receiving a letter but you refused to comply;

(iii) You were asked vide this office Memo No.F(2)ZL-1/82-2770-71, dated 12-11-86 to provide certain information to this office regarding the audit work done by you at the National Savings, Treasury, Lahore but you refused to supply the said information to this office vide your letter No.F(1)HH.11/86, dated 13-11-1986.

(iv) Your endorsed a copy of your abovementioned letter dated 13-11-1986 to the Director, Inspection and Accounts, National Savings, Rawalpindi directly and also you used intemperate and threatening language therein which tantamounts to misconduct.

(3) You have been working as NSO (Insp.) and conducting audit for the last more than seven years but you have not been able to achieve proficiency in your job, as:-

(i) You take unduly long time in conducting audit;

(ii) You leave the audit work incomplete;

(iii) Your audit reports are unnecessarily voluminous and contained objections which mostly relate to minor procedural irregularities which can be removed on the spot. Besides, your audit observations are also vague some-time.

(iv) Your audit reports are received very late after completion of the audit. he above is evident from the different audit reports submitted by you during the period in respect of NSCS Bhati Gate, Shad Bagh, Allama Iqbal Road, Model Town, Fortress Stadium, Shadman Colony and Abbot Road, Lahore.

(4) In order to give a cover to your inefficiency you have been using various tactics such as mentioned below:-

(i) Frequently applying for leave/availing leave on medical grounds mostly on certificates issued by private medical practitioners.

(ii) Attributing your poor performance sometimes to non-cooperation of the Centre's staff and improper maintenance of Centre's record, and sometimes to non-provision of assistance in audit work by your Controlling Officer.

(iii) Making frequent requests to higher authorities both personally and in writing for your transfer from inspection side to some other office on one pretext or the other.

(5) You are in the habit of availing of leave without prior intimation and approval of your Controlling Officer, despite the fact that you have been advised several time to refrain from this practice. Some instances are given as under:-

S. No.

Leave availed on

Application received on

1

11-1-1986

14-1-1986

2

20-1-1986

27-1-1986

3

25 & 26-1-1986

2-2-1986

4

1-2-1986

11-2-1986

5

10-2-1986

19-2-1986

6

18-2-1986

2-3-1986

7

1-3-1986

18-3-1986

8

16 & 17-3-1986

6-5-1986

9

3-5-1986

15-5-1986

10

13 & 14-5-1986

15-6-1986

11

14-6-1986

30-6-1986

12

26-6-1986

30-9-1986

13

2-9-1986

3-9-1986

14

5 & 6-10-1986

7-10-1986

15

26-11-1986

29-11-1986

16

27-11-1986

29-11-1986

(2) By reasons of above you are accused of misconduct and inefficiency and are thus liable to be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973.

(3) In the light of facts and circumstances of the case it has been decided by the undersigned (Authorised Officer) that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee in his case in terms of rule 5(1)(iii) of the Government Servants (E & D) Rules, 1973.

(4) You are, therefore, required to show cause (in writing) within 7 days of the receipt of this notice as to why you should not be proceeded against under Government Servants (Efficiency and Discipline) Rules,…

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