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Petitioner: MUHAMMAD IKRAM SHAH VS Respondent: MEMBER (CUSTOMS), CENTRAL BOARD OF REVENUEHonorable Justice CH. A. RAHMAN KHAN
1986 P L C (C
1986 P L C (C.S.) 717
[Federal Service Tribunal]
Before Muhammad Irshad Khan and Ch. A. Rahman Khan, Members
MUHAMMAD IKRAM SHAH
Versus
MEMBER (CUSTOMS), CENTRAL BOARD OF REVENUE
And another
Appeal No.284 (R) of 1985, heard on 19th May, 1986.
(a) Civil service‑‑
‑‑‑ Disciplinary action‑‑Departmental enquiry‑‑Charge of absence from duty‑‑Facts relating to absence admitted by employee‑‑Non‑supply of copy of enquiry report to employee, held, was not material.
(b) Civil service‑‑
‑‑‑Disciplinary action‑‑Charge of absence from duty ‑Plea that absence was due to sudden illness and as such for reasons beyond control‑ Absence continued for 7 days and illness not so serious as to prevent accused from informing his superiors through telegram, telephone or a special messenger‑‑Plea of illness, in circumstances, rejected and charge, held, established.
M. Asghar Khan for Appellant. Sardar M. Amir Akbar Khan for Respondents. Date of hearing: 19th May, 1986.
JUDGMENT
CH. A. RAHMAN KHAN (MEMBER):---‑‑The appellant Muhammad Ikram Shah, Inspector, Central Excise and Land Customs, has appealed against the impugned order, dated 10‑6‑1982, imposing major penalty of reduction of pay scale from Rs.520 p.m. to Rs.410 per month. The appellant made a departmental appeal which was also rejected by the Member (Customs) vide their Order No. C 16/32/83‑ACE‑II, dated 27‑7‑1985.
2. The facts of the case are that in the year 1981 the appellant was working as Inspector, Central Excise and Land Customs under the Collectorate of Customs, Rawalpindi. He was posted at Jutana Salt Mines on 21‑6‑1981. On that very day he signed blank Gate Pass forms for future use and left the place of duty. The absence of the Inspector was noticed on 22‑6‑1981 and the Deputy Superintendent arrived at the Mines to resume the incriminating documentary record on the same day. The appellant was plated under suspension with immediate effect and an enquiry was ordered. He was served with a charge‑sheet, dated 25‑7‑1981 with a summary of allegations the extract of which is given below:‑
"The following are allegations against Mr. Ikram Shah, Inspector, C.E. & L.C.:
(1) That the Inspector absented himself from duty on the afternoon of .20‑6‑1981 from Jutana Salt Mines, without obtaining permission from his superior Officers to leave the Headquarter or any leave application permitting him to avail leave.
(2) That the Inspector signed in advance the Gate Passes from S. No. 1702‑12 to cover his absence from duty.
(3) That due to his instructions, the Sepoy Mushtaq Ahmad stopped the clearances of salt and was beaten due to this very reason.
(4) That due to fraudulent activity of the Inspector an unhappy incident took place which could have been averted from his presence on duty.
Hence, a charge‑sheet has been framed against the Inspector."
The appellant submitted his explanation with regard to the allegations vide his letter, dated 4th August, 1981 as a result of which a show cause notice was issued on 17‑10‑1981, the extract of which is given below: ‑ "(i) That you left the station without any permission from your superiors in an illegal and unauthorised manner; and
(ii) That you signed the Gate Passes No.1702‑1712 in advance in the evening of 20‑6‑1981, in violation of the Central Excise Rules,
1944 which that amounts to gross misconduct under the Government Servants (E&D) Rules, 1973.
In view of the findings of the Inquiry Officer the authorised officer has recommended imposition of a major penalty on you under the Government Servants (E&D) Rules, 1973."
Consequently the appellant was awarded a major penalty by the Collector of Customs, Rawalpindi vide impugned order, dated 10‑6‑1982.
3. The learned counsel for the appellant contended that on 21‑6‑1981 when the appellant reached his place of duty at Jutana Salt; Mines which was incidentally the first day of his reporting, he felt an acute stomach plain alongwith the feeling of uneasiness and nausia. He, therefore, rushed to Mandi Bahauddin, the nearest place to get the medical aid. A medical certificate by a registered Medical Practitioner, Mandi Bahauddin was submitted advising him rest from 22‑6‑1981 to 28‑6‑1981. The appellant denied having signed any blank Gate Pass form but contended that he did inform the clerk on duty at Jutana Salt Mines to inform the Deputy Superintendent at Khewra about his illness. Since Sepoy Mushtaq Ahmad had not arrived at the time of his leaving the place of duty, he could, not. inform him about his illness. An argument between Sepoy Mushtaq Ahmad and Contractor Zafar Ahmad Rehan on the question of weightment of salt in the absence of the Inspector developed into a serious altercation. Both the parties in this case alleged that they were beaten by the others.
4. It was contended by the learned counsel for the appellant that in view of the seriousness of a stomach illness, it was not possible for the appellant to stay at the place of duty and also because there was no medical aid available at Jutana Salt Mines he had to leave the place of duty. It was an act of God which was beyond the control of the appellant. This fact is borne out from a medical certificate issued by the Medical Practitioner. Therefore, this forced absence on the part of the appellant cannot be held against him and the punishment awarded is out of proportion and is untenable in the eyes of law.
5. It was further contended by the learned counsel for the appellant that a copy of the enquiry report was not supplied to the appellant.
Since the facts of the case were very simple and the fact about the absence of the appellant is admitted by him, in our opinion, non-supply A of a copy of enquiry report is not considered material in this case.
6. The learned counsel for the State, however, contended that the absence of the appellant from duty was cot due to any serious illness but he was alleged to have left for Rawalpindi for some personal work. He left the blank Gate Pass forms duly signed so that the work at the Mines does not suffer. It was further contended that the medical certificate submitted is, dated 22‑‑6‑1981. to 28‑6‑1981 whereas the appellant actually left the place of duty on 21‑6‑1981. Also the appellant according to him stayed for all these days at Mandi Bahauddin but did not make any effort to inform the Deputy Superintendent at Khewra about his illness and absence. This could have been done by various means e.g. a telegram could be sent, a telephone call could be made and a special messenger could have been sent to Khewra. The illness of the appellant was not so serious that he was forced not to take any action in this regard. That being the case, it was asserted that it is very difficult to believe the cause of appellant's absence. Although it was not taken into consideration yet the signatures of the appellant on the blank Gate Pass forms were also authenticated to be that of the appellant vide Memo. No.42/T8/FIA/82, dated 8th February, 1982 by an Handwriting Expert.
7. It view of the foregoing, we are of the opinion that the question of absence from duty of the appellant is established beyond any shado of doubt. He could have easily arranged to inform the Deput Superintendent at Khewra to avoid further complications.
8. For the reasons stated above, the appeal is dismissed with no order as to costs. Parties to be informed.
A.B. Appeal dismissed.
1986 P L C (C.S.) 719
[Service Tribunal Punjab]
Present: S. Abdul Jabbar Khan, Chairman,
MUHAMMAD ILYAS
Versus
CHIEF CONSERVATOR OF FORESTS, SOUTHERN .20NE, MULTAN and another
Case No. 85/45 of 1985, decided on 26th March, 1986.
(a) Punjab Service Tribunals Act (IX of 1974)‑‑
‑‑‑S. 4‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr.2 (3) 3 6‑‑Show‑cause notice‑‑Issuance of‑‑Requirement‑‑Show‑cause notice, held, was required to be issued not by Authority but by Authorised Officer‑‑Show‑cause notice neither issued by Authority nor by Authorized Officer would render entire proceeding taken against civil servant to be illegal, without jurisdiction and not sustainable‑‑Case remanded to competent authority to proceed afresh strictly in accordance with Rules.
(b) Civil service‑‑
‑‑‑ Removal from service‑‑Order purporting to give retrospective effect to order of removal from service, held, would be patently unlawful, void and could not be given effect tip
1985 S C M R 1178 rel.
Muhammad Iqbal Chaudhry for Appellant.
Ghulam‑us‑Sayyadain, Deputy District Attorney for Respondent.
JUDGMENT
Muhammad Ilyas, ex‑Forest Ranger, Southern Zone, Multan, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Chief Conservator of Forests, Punjab, Southern Zone, Multan (which is successor office to the defunct office of the Chief Conservator of Forests, Punjab) and Secretary. Government of the Punjab, Forestry Department, Lahore, as respondents.
2. By virtue of this appeal, he has prayed that the impugned orders, dated 26‑12‑1984 as well as, dated 2‑9‑1980 whereby he was removed from service w.e.f. 18‑12‑1979, be set aside, and he be re‑instated in service with full back benefits.
3. Brief facts of the case are that the appellant joined Forest Department as Forest Ranger on 1‑10‑1970. While serving, as Forest Ranger in Muzaffargarh the appellant proceeded on leave sanctioned by Divisional Forest Officer, Muzaffargarh, for four days w.e.f. 14‑12‑1979.The appellant and his wife seriously fell ill during the leave period, therefore, he telegraphically requested for grant/extension of leave, as per Annexures 'A/1' to 'A/10'. The health of the appellant seriously deteriorated thereafter and he submitted leave applications duly supported by Medical Certificates through postal service, copies of which have also been placed with the appeal. However, he did not receive any intimation from the Department either about acceptance or rejection of his leave and ultimately he was served with a show‑cause notice issued by the Chief Conservator of Forests Punjab, in daily Nawa‑i‑Waqt, dated 12‑8‑1980. The appellant appeared before the Authority on 16‑8‑1980, and again produced copies of Medical Certificates and postal service in support of the said leave applied for, and sought permission to join duty after obtaining fitness certificate from the authorised Medical Attendant but the respondent did not accept his plea and straightaway passed the impugned order, dated 2‑9‑1980, whereby the appellant was removed from service w.e.f. 18‑12‑1979. The appellant preferred departmental appeal on 1‑10‑1980, but the same was also rejected by respondent No,2 by his order, dated 26‑12‑1984. Hence this appeal.
4. 1 have heard the learned counsel for the appellant as well as learned Deputy District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has argued that it was not disputed that the appellant remained on leave duly supported by medical certificates issued by Registered Medical Practitioner and under the leave Rules also the leave applied on medical ground could not be refused. However, the Authority was empowered to secure a second medical opinion, which was never done therefore, the first opinion given by the Registered Medical Practitioner was binding on the respondents. The shrew‑cause notice referred to above was issued by the Authority whereas under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the show‑cause notice was required to be served by the Authorised Officer according to the Delegation of Powers Rules of the Department. Learned counsel for the appellant has argued that the impugned order sustained. He has placed reliance on 1985 SCMR 1178. Learned counsel for the appellant has also pointed out that the factum of Medical Certificates was never made a 'subject of enquiry and the Authority did not deny this fact also. Learned counsel for the appellant has further argued that the Appellate Authority while passing the impugned order did not afford opportunity of personal hearing as required under Rule .16 of the (END) Rules, which was incumbent upon the Appellate Authority to hear the appellant before disposing of his appeal, therefore, the appellate order was vitiated on this ground.
6. On the other hand learned Deputy District Attorney has adopted the comments of the Department and vehemently resisted the appeal and prayed that the impugned orders being justified be maintained.
7. I have given my anxious thought to the arguments advanced by the parties and find lot of force in the argument of learned counsel for the appellant that the show‑cause notice was required to be served by the Authorised Officer and not by the Authority as clarified in the Delegation of Powers Rules, 1962, as amended by Government Notification No. SORI (S&GAD) 15‑6/73, dated 25‑9‑1975, according to which Conservator of Forest is 'Authority' and Divisional Forest Officer is the 'Authorised Officer' for Forest Rangers, as defined in Rule 2 sub‑rule (3) Chapter I of the Punjab Civil Servants (E&D) Rules, 1975. Thus the respondent No.1 was neither Authority nor Authorised Officer to initiate any action against the appellant and to pass any order thereon, the entire proceedings become illegal, without jurisdiction and cannot) be confirmed, and the impugned orders are liable to be set aside on this score alone. Similarly the impugned order, dated 2‑9‑1980 giving retrospective effect from 18‑12‑1979, cannot be permitted to stand in view of the judgments of .this Tribunal as well as ruling of their Lordships of the Supreme Court of Pakistan reported as 1985 S C M R 1178. In the light of the above, this Tribunal has no alternative but to accept the appeal, therefore, proceed to accept the appeal, set aside the impugned orders and remand the case to the Competent Authority to proceed afresh against the appellant if he so desires strictly in accordance with the rules. The appellant is re‑instated in service in order to clothe him a civil servant for the purpose. The fate of the period of his remaining out of service shall also be decided by the Authority itself. There will be no order as to costs.
A.A. Appeal accepted.