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Petitioner: MUHAMMAD RAFIQ AKHTAR VS Respondent: CHAIRMAN, AREA ELECTRICITY BOARD WAPDA, ISLAMABAD
1990 P L C (C
1990 P L C (C.S.) 191
[Federal Service Tribunal]
Before Rasheed‑ud‑Din Arshad Kh. Abdul Jalil and Ch. Hasan Nawaz Members
MUHAMMAD RAFIQ AKHTAR
versus
CHAIRMAN, AREA ELECTRICITY BOARD WAPDA,
ISLAMABAD and another
Appeal No. 113(L) of 1985, decided on 19th October, 1989.
(a) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑R. 5‑‑‑Disciplinary proceedings‑‑‑Initiation of‑‑‑Employee's absence from duty for a period of over two years‑‑‑Employee's request for medical leave was turned down with the direction that he should get himself examined by the Establishment's Medical Officer‑‑‑Employee's failure to comply with such direction and his absence from duty was apparently in disregard of office discipline, justifying initiation of disciplinary proceedings.
(b) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑Rr.‑5 & 6‑A‑‑‑Letter communicating charges to accused‑‑‑Mode of service‑‑ Letter calling for explanation of accused or letter communicating charges to accused, was required to be sent to him at the last known address under registered cover acknowledgment due‑‑‑Where such letter had been received back with a report of refusal, or with a report that it had been received by a member of the family or it was not returned within a period of ten days from the date of its issue, presumption would be that the notice had been duly served on the accused.
(c) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑R. 5(v)(b)‑‑‑Final show‑cause notice, service of‑‑‑Employee having failed to respond to the letter of explanation, a show‑cause notice was published in Establishment s "khabernama" where it was announced that employee, being absent without permission or intimation since specified date, was finally directed to appear within fourteen days of the publication of notice and explain why proceedings against him should not be taken in accordance with the relevant provisions of taw, and that in case of his failure to appear, presumption would be that he had nothing to say in his defence and then proceedings against him would be taken ex parse‑‑‑Such publication amounted to final show‑cause notice in compliance with R. 5(v)(b) of Efficiency and Discipline Rules, 1978.
Muhammad Hameed Dervaish v. The Chairman WAPDA, Lahore and 2 others 1989 S C M R 617 and Chairman Employees Old‑Age Benefit Institution and others v. Muhammad Ismail Munawar 1984 S C M R 143 ref.
(d) West Pakistan Water and Power Development Authority (Power Wing) Technical Subordinates (Line Staff) Service/Recruitment Rules, 1971‑‑‑
‑‑‑Rr. 18(2) & 21‑‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, R. 5‑‑‑Provisions of R. 18(2), Recruitment Rules, 1971 do not exclude the procedure laid down in Rr. 5 & 6, Efficiency and Discipline Rules, 1978‑‑‑Similarity and points of difference between two sets of Rules stated‑‑
Rule 21(2), Recruitment Rules, 1971, says that in matters relating to discipline,. punishments and appeals, directly recruited members of the service, shall be governed by Efficiency and Discipline Rules, 1966 as amended from time to time. This being so, the Efficiency and Discipline Rules, 1978 being an amended form of 1966 Rules, will be equally applicable to the members of the service in other matters relating to discipline, punishments and appeals. Therefore, reference to sufficiency and Discipline Rules in Rule 18(2) can as well be taken to have been made to those made in 1978. In this view of the matter, it is not possible to agree that the provisions of Rule 18(2) excluded the procedure laid down in‑Rules 5 & 6 of 1978 Rules. They are rather suggestive of the fact that these rules are applicable to the disciplinary proceedings, because the formalities mentioned in this sub‑rule are the same as prescribed in Efficiency and Discipline Rules of 1978. Both provide for communication of the charge‑sheet, along with statement of allegations to the accused, reasonable opportunity for being heard in person in connection with the charge‑sheet served on him and his explanation thereto, holding of a proper and independent inquiry and service of final show -cause notice along with the inquiry report indicating the grounds on which the .penalty is proposed to be imposed against him. The only difference made by subsequent 1978 Rules is that this elaborate and self‑sufficient procedure is to be applied only in cases where the competent authority decides that an inquiry is necessary either in the interests of justice or in the light of the facts of the case. This being the situation, the formalities mentioned in sub‑rule (2) of Rule 18 of the Recruitment Rules, will have to be observed only in those cases where the competent authority had decided under Rule 5(iii) of 1978 Rules that an inquiry need be conducted under the circumstances of a particular case or in the interests of justice, particularly when those formalities are the same as prescribed in t Efficiency and Discipline Rules, and moreso when there seems to be no logic behind the assertion that service of charge‑sheet and holding of inquiry is unavoidable in every case regardless of its facts. The emphasis is on the fact that sub‑rule (2) of Rule 18 of 1971 Rules does not have, even by implication, the effect of ousting or overriding the provisions of Efficiency and Discipline Rules, 1978, partly because of exactly identical nature of those provisions and in particular because those of 1978 Rules are later in date. The cumulative effect of these provisions is that identical procedure laid down in Rule 18(2) of the Recruitment Rules and Rules 5(iii) and 6 of 1978 shall be observed in appropriate cases where an inquiry is necessary in the interests of justice or under the circumstances of a case. In this manner, the provisions of relevant Rules of 1971 and Disciplinary Rules, 1978 can be harmonised and made effective; which must have been the intention of the Rule‑making Authority. We hold that there is no inconsistency in these rules and they can simultaneously be carried into effect.
Disciplinary Rules 1978 shall stay in the field to the extent of repugnancy in disregard of the procedural provisions of Rule 18(2) of the Recruitment Rules, especially when they are primarily concerned with matters of recruitment.
Chairman Employees Old‑Age Benefit Institution and others v, Muhammad Ismail Munawar 1984 S C M R 143 ref.
(e) Interpretation of statutes‑‑
‑‑‑ Court is to construe the provisions of a statute in such a manner as to forbid one provision to stultify the other, and if possible the provisions in one section should be read as qualification of others, so that same effect could be given to both in furtherance of the intention of the legislature.
Muhammad Hameed Dervaish v. The Chairman VAPDA, Lahore and 2 others 1989 S C M R 617 ref.
(f) Interpretation of statutes---
‑‑‑ Different provisions of law should be interpreted in such a manner that they were saved rather than destroyed.
(g) Service Tribunals Act (LXX of 1973)----
‑‑‑S. 4‑‑‑Dismissal from service‑‑Employee having no case on merits, his appeal was liable to dismissal‑‑‑Service Tribunal found that while awarding punishment, lenient view of the matter should have been taken in consideration of the fact that employee had got twenty‑one years service to his credit and that he had stood in good stead to the Authority during the course of his employment, coupled with the circumstance that the charge of misconduct emanated not from any malpractice but from un‑authorised absence‑‑‑Order of dismissal was thus substituted by an order of compulsory retirement with consequential benefits under the rules.
Mian Mahmood Hussain for Appellant.
S. Mozammal Ali Akram and Amjad Zaman, D.R. for Respondents.
Date of hearing: 26th September, 1989.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed by the appellant to challenge the validity of order of his dismissal from service passed by respondent No. 1 on 29‑2‑1984 and order dated 7‑4‑1985 made by respondent No. 2 rejecting his departmental appeal.
2. The order of dismissal from service dated 29‑2‑1984 reads that "as a result of service of show‑cause notice upon the accused Muhammad Rafiq Akhtar Bhatti, Line Superintendent‑I, Talagang Sub‑Division, which was not responded to by him, the undersigned (respondent No. 1) in the capacity of competent authority under Pakistan WAPDA (Efficiency & Discipline) Rules, 1978 is satisfied that it is not reasonably practicable to give him an opportunity to show -cause in terms of Rule 5 of the aforesaid rules" and that he is, therefore, dismissed from service with immediate effect under Rule 8(b) of the Rules.
3. As we see from the record, the appellant's dismissal from service came about on account of misconduct resulting from his long unauthorised absence from duty for the period from 6‑3‑1982 to the date of dismissal from service. He was on casual leave from 1‑3‑1982 to 5‑3‑1982, but he failed to join his office on the expiry of leave and remained continuously absent without leave during the ensuing period till 29‑2‑1984. His case in support of the relief sought by him i~ that he could not attend the office because of prolonged serious illness and that the medical certificates issued by th;: competent "medical practitioner" regularly despatched through registered cover by him to the Sub‑Divisional Officer, Talagang went without any response; which justified the inference that leave applied for on medical ground had not been refused by the competent authority. He reported for duty on 5‑6‑1954 to the Sub‑Divisional Officer, who directed him to the Area Electricity Board, Islamabad, whence he came to know that he had already been dismissed from service.
4. The receipt of medical certificates has not been denied and the defence in the main is that the certificates received from time to time were returned to the appellant for counter‑signatures of WAPDA Medical Officer, because they had been issued by a private practitioner and that he was directed to appear before WAPDA Medical Officer, Sunny View, Lahore for medical examination. He failed to comply with this direction and the respondents were within authority to disbelieve the certificates issued by the private practitioner. The appellant's long absence without leave, under the circumstances, amounted to misconduct warranting his dismissal from service.
5. Reliance in support of their case has been placed by the respondents on Rule 21 of the Pakistan WAPDA Leave Rules for WAPDA Employees, 1982 which makes the following reading:
Leave on medical certificate.‑‑‑
(a) Leave applied for on medical certificate upto 30 days shall not ordinarily be refused provided the medical certificate is signed by one of the following:
(i) WAPDA Medical Officer;
(ii) Medical Officer authorised by WAPDA as Medical Attendant on part time basis; and
(iii) Medical Officer of Government Hospital/Dispensary/C.M.H.
(b) In cases involving leave on medical certificate exceeding 30 days, the competent authority may refer the employee to a WAPDA Medical Board comprising three Medical Officers or where such Medical Board cannot be constituted, to Civil Surgeon/Medical Superintendent of District Hospital or Medical Specialist/Officer Commanding of C.M.H. as the case may be, for opinion/recommendation. Orders for the sanction of leave exceeding 30 days on medical certificates or otherwise will be passed by the competent authority in the light of the opinion/recommendations referred to above.
(c) No WAPDA employee who has been granted leave on medical certificate may return to duty without first producing a‑ medical certificate of fitness in the form attached to these Rules as Annexures VI and VII as the case may be.
Note:‑ Medical Officer/Board as mentioned in (a) and (b) above shall issue medical certificate on the Proforma Annexures VI and VII to these Rules:"
6. There is no dispute about the fact that the medical certificates despatched by the appellant had been issued by a private practitioner. The respondents had, therefore, every justification for disregarding those certificates on the ground that they had not been signed either by WAPDA Medical Officer or a Medical Officer authorised by WAPDA as Medical Attendant on part‑time basis or Medical Officer of a Government Hospital/Dispensary/C.M.H. The respondents have placed on record letter No. 10610‑13.EP, dated 25‑5‑1983 addressed to the appellant by the Executive Engineer, WAPDA Operation Division, Pindigheb. It made a reference to his letter dated 30‑4‑1983 and directed him to appear before Director, Medical Services, WAPDA, Sunny View, Lahore for medical check‑up and then submit a report to the Executive Engineer's office through S.D.O. (E) Talagang so that his case for leave on medical ground may be considered. He was told in very clear terms that no medical certificate was acceptable unless it was countersigned by the WAPDA's authorised Medical Officer.
7. An endorsement on the face of this letter bears out that it was sent by registered post, with 705 as number, on 25‑5‑1983. This is supported by the relevant entries of 25‑5‑1983 made in Register of Services Postage maintained in the office, a Photostat copy whereof has been placed by the respondents on the record. They bear out that letter No. 10610‑13.EP, dated 25‑5‑1983 was sent to the appellant by registered post on his address furnished by him to the office. In addition, we find a Photostat copy of Receipt No. 705 issued by the Postal Authorities pasted on the face of aforementioned entries of the register. This receipt also shows that the letter was despatched to him by registered post. We feel no hesitation in holding that in the presence of these documents, nothing more is required to establish that the appellant was directed to appear before the Director, Medical Services, WAPDA, Sunny View, Lahore for examination and submit a report to the office to enable them to consider his request for leave on medical ground. As already noticed before, he was informed by this letter that no medical certificate without the counter‑signatures of WAPDA's authorised Medical Officer was acceptable. This evidence incidentally falsifies the assertion that the appellant did not receive any "communication about the rejection of his medical certificates". It also belies the claim made in paragraph No. 2 of the appeal that leave on medical ground had not been refused by the respondents. Letter dated 25‑5‑1983 proves beyond all reasonable doubt that the leave requested by him had not been granted by the respondents and that he remained absent irrespective of the awareness that the veracity of medical certificates despatched by him in support of his illness remained a matter of doubt. He even did not care to appear before WAPDA's Medical Officer as directed by the office.
8. The evidence produced by the respondents in support of their case is sufficient and convincing enough to give a lie to the appellant's case to the effect that he was not aware of the fate of medical certificates despatched by him and that his request for leave on medical ground had not been refused. The record A provides us with every reason to believe that he knew that his request for leave on medical ground had not found favour with the respondents and that he had been directed to get himself examined by the WAPDA's Medical Officer. His absence in the presence of these circumstances, therefore, was apparently in disregard of office discipline justifying the initiation of disciplinary proceedings.
9. We might as well make a reference to the appellant's pleadings on this point with some advantage. As already noticed before, he pleaded that while being on casual leave, he fell seriously ill on 5‑3‑1982. The nature of ailment has not been mentioned and we feel no hesitation in observing that the pleadings are rather evasive, considering that he remained absent for about two years and the description of ailment would certainly have been a material factor to give a colour of genuineness to his case. His failure to do so would lead a person of an ordinary prudence that his illness was not of a serious nature, as could have been sufficient to prevent him from attending his duties, and this too only if it be presumed that he in fact had been suffering from any ailment; which conclusion is also supported by medical certificates placed by him on the record stating that he was "suffering from PUO and Lumbago".
10. This was regarding merits of the case. As for objections of legal character against the impugned order, one of the grounds in support of the appellant's case is that he was not given an opportunity to explain the circumstances under which he was prevented from performing his duties. 1t was averred that necessary requirements of the WAPDA Efficiency and Discipline Rules, 1978 were not fulfilled before awarding extreme penalty of dismissal from service and that the impugned order was arbitrary in the absence of an opportunity to defend against the proposed action.
11. On the basis of certain documents produced by the respondents, however, we are constrained to hold that even this ground is not available to the appellant. It is factually incorrect that he was not served with any show‑cause notice as alleged by him in paragraph No. 4 of the appeal. Letter No. 4342 44/18cQ‑710, dated 13‑12‑1983, placed on the record by the respondents bears out that a show‑cause notice (in duplicate) was sent alongwith it to the appellant by the Director (Admn.) Electricity Board, Islamabad with the request that he should return one copy to the office with his signatures in token of having received the notice. He was informed that he should submit his explanation within fourteen days of the receipt of the notice, failing which ex parte action will be taken against him. It was alleged in the show‑cause notice that while serving as Line Superintendent‑I in Talagang Sub‑Division, during the year 1982, he absented himself from duty from 5‑3‑1982 without any intimation to his immediate officer. There is an endorsement on the face of this letter, like in the case of other mentioned before, indicating that it was sent to he appellant by registered post acknowledgment due. A Photostat copy of relevant entries of Despatch Register also bears out that the letter along with the notice was despatched by registered post acknowledgment due, with 491 as registration number. Further, we find a Photostat copy of relevant receipt issued by the Postal authorities pasted on the leaf of the register bearing out that letter dated 13‑12‑1983, accompanied by the show‑cause notice (in duplicate) was sent to the appellant at his home address.
12. Procedure for service of show‑cause notice or charge‑sheet in certain eventualities has been laid down. in Rule 6‑A of the WAPDA Efficiency and Discipline Rules, 1978. It provides that the letter calling for explanation of the accused under Rule 5 or the letter communicating the charges to the accused under Rule 6, shall be sent to him at the last known address under registered cover acknowledgment due and that in case the letter is received back with a report of refusal, or with a report that it has been received by a member of the B family or it is not returned within a period of ten days from the date of its issue, it shall be presumed that the notice has been duly served on the accused. Ir the present case, as we have it from reliable documentary evidence produced by the respondents, the letter of explanation under Rule 5(iv) of the Rules was sent to him by registered post acknowledgment due .and it shall be presumed to have been served on the appellant because it was not received back in the office with any report. This notice shows that he was informed of the action proposed to be taken in regard to him alongwith the grounds of action and that he was given an opportunity to submit a written explanation against the proposed action within a period of not more than fourteen days from the date of communication of explanation letter. 1t further shows that he was required to state at the same time in his written explanation whether he desired to be heard in person. In the presence of this documentary evidence, we are convinced that the requirements of Rule 5(iv) of the Rules were fulfilled in this case and that the appellant was given full opportunity to defend himself against the proposed action. The service of show‑cause notice and compliance with the requirements of rules is a very material factor in this case; in the context of the allegation that he was not served with any show‑cause notice and that opportunity of defence contemplated by the relevant provisions of the rules had been denied to him. The appellant's pleadings cause an impression and if his entire case is built on the allegation that he was not served with any show‑cause notice and that an opportunity of defence was denied, thereby making the impugned order an arbitrary exercise of powers. Since this is convincingly proved to have been factually incorrect, we feel inclined to hold that nothing remains to be dealt with in his case, in so far as the facts are concerned.
13. It was contended by his learned counsel that even final show‑cause notice in terms of Rule 5(v)(b) of the Rules had not been served in this case. This rule provides that the procedure regarding provisional determination of penalty to be imposed, asking the accused to show cause and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued explanation letter under Rule 5(iv) and the explanation submitted by him was found unsatisfactory. In this case, after he failed to respond to the letter of explanation, a show‑cause notice was published in WAPDA `Khaabernama' where it was announced that he was absent without permission or intimation since 5‑3‑1982 and that he was finally directed to appear within fourteen days of C the publication of the notice and explain why proceedings against him should not be carried out in accordance with the relevant provisions of WAPDA Efficiency and Discipline Rules, 1978. This notice further said that in case he failed to appear, it shall be presumed that he has got nothing to say in his defence and then proceedings against him will be taken ex parte. We are of the opinion that 'this publication, under the circumstances of the case, amounted to service of final show‑cause notice in compliance with the Rule 5(v)(b) of the Rules.
14. In expressing any opinion about this aspect of the matter, we must not lose sight of the fact that he had been served with a letter of explanation under Rule 5(iv) of the Rules and that he failed to submit any written explanation. Whether requirements of Rule 5(v)(b) of the Rules were duly fulfilled, has to be seen and determined in the light of the fact that he failed to explain his long absence from duty and that he was an absconder, a circumstance which obliged the respondents to have recourse to constructive service of notice by publication. 1n any case, we would not hesitate to say that under the aforementioned circumstances, the appellant was given full opportunity to defend and that there has been no miscarriage of justice, as would persuade us to strike down the impugned order. Reliance may be placed on the case of Muhammad Hameed Dervaish v. The Chairman WAPDA, Lahore and two others 1989 S C M R 617 where it was held by the Supreme Court that there could possibly be no vested right in second show‑cause notice and that the case of Syed Mir Muhammad had peculiar features of his own and unless actual prejudice is shown, the benefit of second show‑cause notice cannot be claimed, as was held in the case of Chairman Employees Old Age Benefit Institution and others v. Muhammad Ismail Munawar 1984 S C M R 143.
15. Another ground on which validity of the impugned order has been challenged is that "the service of the appellant is governed by the West Pakistan WAPDA (Power Wing) Technical Subordinates (Line Staff) Service/ Recruitment Rules, 1971 (hereinafter called the Recruitment Rules) and that according to the provisions of Rule 18 of these Rules, the appellant could not be dismissed from service without service of proper charge‑sheet, giving reasonable opportunity of hearing, holding a proper and independent inquiry and service of show‑cause notice along with a copy of inquiry report. It was contended that since these requirements had not been fulfilled before dismissing the appellant from service, the impugned order was ab initio void.
16. Importance of the question…
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