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Petitioner: M. SHAFI KHALIQUE VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN
1984 P L C (C
1984 P L C (C. S.) 30
[Federal Service Tribunal]
Present: Mr. Justice Shah Abdur Rashid, Chairman and A. O. Raziur Rahman, Member
M. SHAFI KHALIQUE
Versus
SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN AND ANOTHER
Appeal No. 103(R) of 1982, decided on 5th October, 1983.
(a) Service Tribunals Act (LXX of 1973)‑ ‑‑‑ S. 4 ‑Appeal before Tribunal‑Limitation‑Accused serving in Pakistan Embassy abroad‑No legal advice available there and accused remained in correspondence with counsel in Pakistan- Delay of about six months in filing appeal, in circumstances, condoned.
(b) Civil service‑
--Disciplinary action‑Bias‑Accused charged for disobedience of transfer order while serving in Pakistan mission abroad‑Request for deferment of transfer on grounds of continuity of education of child not accepted‑Service of show‑cause notice straightaway proposing dismissal from service without considering possibility of existence of any extenuating factors or giving heed to compassionate aspect of accused's circumstances, held, indicative of bias on part of competent authority.
(c) Government Servants (Efficiency and Discipline) Rules, 1973‑
---R. 5(1)(iii)‑Show‑cause notice procedure‑Dispensing with enquiry‑‑No formal decision for dispensing with enquiry and resorting to show‑cause notice procedure with recording reasons -Irregularity‑Case against accused clear and apparent from record and not calling for examination of any witness‑Allegations (overstay in disobedience of transfer order) such as could either be admitted or denied‑Accused not prejudiced in his defence‑Contention that irregularity of resorting to show' cause notice without recording 'reasons and formal decision vitiated‑proceedings, in circumstances, rejected.
(d) Civil service‑
‑‑ Disciplinary action‑Penal action‑May be both punitive and deterrent‑Cannot however be justified if discriminates between offenders of same category‑Discriminative action in administrative field would be subversive of good order and discipline ‑ Allowing employees of Government to harbour grievance of being discriminat ed against ‑Not in public interest.
(e) Government Servants (Efficiency and Discipline) Rules, 1973‑
‑ R. 4‑Punishment‑Quantum‑Accused after having stayed in Pakistan Embassy abroad for a period of more than 7 years issued with a notice for readiness to move back to Pakistan, making request for deferment of transfer for 3 years on grounds of continuity of education of daughter, the only child and such request strongly recommended by Ambassador‑Request turned down‑‑Accused thereafter applying for leave for 6 months enabling him to make arrangements for his daughter's stay for prosecuting her studies but only 30 days leave on leave‑cum‑transfer basis sanctioned‑Accused reiterating his request for 6 months' leave‑Request not granted and accused relieved of duties in Embassy Office‑Accused persisting in his request for more leave‑Show‑cause notice proposing dismissal from service served in reply whereof accused again repeating his request but impugned dismissal passed by competent authority with out considering possibility of existence of extenuating factors or heed to compassionate‑Accused after his request for deferment of his transfer and before final order directing him to report back in Pakistan reporting certain malpractices on part of superior officers and helping Inspection Party in verifying truth of such malpractices and allegations‑Such action of accused causing displeasure and hostility of superior who once having supported requests of accused turned hostile and took determined steps to ensure early return of accused to Pakistan‑Such fact, in circumstances, held, must weigh in determining appropriateness or otherwise of punishment and its quantum because fact remains that he by over‑staying was able to promote public interest in detecting alleged irregularities‑Instances of employees serving abroad and even in same Embassy dealt with leniently in similar circumstances available on record‑Accused, in circumstances, held, though infringed rule of discipline by not returning to Pakistan for duty when directed did not deserve extreme punishment of dismissal‑Penalty of dismissal altered to that of censure and stoppage of increments for three years and no arrears on re‑instatement for intervening period‑Service Tribunals Act (LXX of 1973),
G. S. Khan for Appellant.
Syed M. Shahudul Huque for Respondents.
Date of hearing: 13th September, 1983.
JUDGMENT
A. O. RAZIUR RAAMAN (MEMBER).‑The appellant formally Accountant in the Embassy of Pakistan at Hague, was dismissed from service by an order, dated 27th July, 1981 passed by the Secretary, Ministry of Foreign Affairs, under rule 4(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973. Prior to that, he had been served with a show -cause notice, on 15th April, 1981 under rule 5(1)(ii) of the Efficiency and Discipline Rules, 1973. He replied to the show‑cause notice on 24th April, 1981 in response to which he was directed by a Memo dated 13th May, 1981 issued by the Embassy of Pakistan at the' Hague to join duties in the Ministry by 1st June, 1981 failing which the major penalty of dismissal from service was to be imposed on him under the Efficiency and Discipline Rules, 1973. The appellant did not report for duty in Ministry by the due date but addressed a letter to the Director‑General (Missions) in the Ministry of Foreign Affairs, requesting for 6 months' leave, with effect from 8th April, 1981 in order to enable him to arrange for the stay of his daughter at the Hague for prosecuting her studies till the end of her Pre‑University education, for which he had already made application. No response seems to have been made by the Director‑General (Missions) to this request, but, by the order referred to above, which was received by the appellant through the Embassy, on 23rd August, 1981 he was dismissed from service.
2. The appellant made a departmental representation against the above order to the President of Pakistan, in reply to which he was informed that the competent authority had turned down the same. Subsequently, after some time, he filed this appeal.
3. A preliminary objection was raised on behalf of the respondent -department on the ground that the appeal was barred by limitation, as it had not been preferred within 30 days of the date of the communication of the order of rejection of the departmental appeal, on 6th March, 1982. This objection was taken up first and, after hearing the parties, disposed of by an earlier order, whereby the objection was overruled and the delay in the filing of the appeal condoned on the ground, among others, that there was no legal advice available to the appellant at the Hague and he had been, corresponding with his lawyer stationed in Pakistan.
4. We have heard the parties in great detail and perused the relevant record. .
5. The genesis of the action taken against the appellant is that, after he bad stayed in the Pakistan Embassy at the Hague for a period of more than 7 years and a half, he was issued a notice for readiness to move back to Pakistan in the beginning of the financial year (1980‑81), whereupon he made a request for deferment of his return by 3 years. The basis of the request was that his daughter, his only child, was a brilliant student in a prestigious Dutch language school (Gymnasium) and she needed this much time to complete her pre‑University education, which, according to the appellant, would receive a great set‑back, if she were to come back to Pakistan at that stage and re‑start her schooling, since, having been educated through the medium of the Dutch language, she would not only take a long time to adjust to English or Urdu but also find it extremely difficult to do so. For this reason the Ambassador recommended the deferment of the appellant's recall to Pakistan. While doing so, he observed:‑‑
"I would like to state that the problems pointed out by the Accountant are genuine and deserve to be considered sympathetically. The education of our children is a matter of primary concern to all of us in the field. Though for the last 33 years the Ministry has been raising this question and inviting suggestions no practical steps have been taken for its resolution. For this reason the least Ministry can do is to lend a helping hand to the initiative of the individuals, who have devised ways and means on their own to overcome the problem. In this particular case this can be a deferment of the recall as requested by the Accountant."
The request for the deferment was turned down, whereupon the appellant addressed a petition to the President of Pakistan on 28th July, 1980 which, however, was not forwarded by the concerned authorities. Subsequently, he submitted his resignation but was persuaded by the Ambassador to withdraw the same. After this, on 26th November, 1980 he made an application for leave on leave‑cum‑transfer basis for 6 months, in order to enable him to make arrangements for his daughter's stay at the Hague, for prosecuting her studies, before returning to Pakistan. This application was also strongly recommended by the Embassy and then Charge d' Affaires wrote as follows:‑
"The reasons as stated therein are factual and deserve sympathetic con sideration by the Ministry. In the considered opinion of this Mission, his leave application may please be acceded to--------"
7.This recommendation also was not accepted by the Ministry and they sanctioned his leave on leave‑cum‑transfer basis for only 30 days, vide their memo dated 6th December, 1980. Not satisfied with this order, the appellant put another application, dated 16th January, 1981 reiterating his request for grant of leave on leave‑cum‑transfer basis for 6 months and also requesting for deferment of the arrival of his substitute by 4 months. . In this application, which was also supported by the Embassy, he had given an additional ground for leave, namely, his wife's ailment from Tuber culosis, supported by medical certificate. This application was rejected telegraphically on 20th January, 1981 and the appellant was relieved of his duties on 2nd February, 1981. Nevertheless, persisting in his efforts to get leave he made another application on 27th February, 1981 asking for leave cum‑transfer for a period of 2 months, in order to enable him to arrange for his daughter's residential accommodation before leaving for Pakistan. This application was also rejected and the fact conveyed to the appellant on 16th March, 1981. He was also informed that, if he had not yet reported for duties at Headquarters, by 15th March, 1981 disciplinary action would be taken against him. Simultaneously, certain drastic actions were taken by the Charge d' Affaires of the Embassy, in order to force the ‑appellant to leave the Hague and return to Pakistan. The Netherlands authorities were requested to: ‑
(a) withdraw the identity cards issued to the appellant and his family ;
(b) withdraw the work permit issued to his wife ; and
(c) cancel the stay authorisation issued to him and his family.
8. All these developments did not deter the appellant from making still one more effort. On 23rd March, 1981 he wrote directly to the Ministry requesting for leave upto 31st June, 1981 to enable him to make suitable arrangements for his daughter's 'accommodation for enabling her to continue her studies after his departure for Pakistan. This application did not evoke any response from the Ministry. But, on 16th April, 1981 he was served the show-cause notice, already referred to. He submitted his reply in due course. But,, the Ministry ordered him to return to Pakistan by 1st June, 1981 on pain of dismissal from service. However, on 29th May, 1981 he again repeated his former grounds against the show‑cause notice. In response to this, the impugned order was passed on 27th July, 1981 and communicated to the appellant on 23rd August, 1981.
9. From the above narration of events, the following broad facts emerge: ‑
(i) The appellant had already stayed on an assignment abroad for a considerably longer, period of time than the maximum permissible under the relevant instructions of Government.
(ii) This overstayal was not at the request of the official, but in the interest of public service.
(iii) When the official was warned to be in readiness for his return to Pakistan, he made a request for deferment by as much as three years.
(iv)This request was made by the official in his own interest on personal and domestic grounds, which, prima facie, appear to be both genuine and valid.
(v) His request was strongly supported by the then Ambassador and, later, by the Charge d' Affaires.
(vi) The request for deferment of the transfer and, subsequently, for leave was turned down more than once and official directed to return to Pakistan latest by 1st June, 1981. In this manner, he was allowed about one year's time between the approximate date mentioned in the readiness notice and the actual deadline fixed for his movement.
(vii) The purpose for which the official wanted to stay at the Hague being the requirement of time for making arrangements for his daughter's residence for her continued stay there to complete her education up to the pre‑University level, the above period of time should have sufficed for this purpose and he could have returned to Pakistan by the deadline fixed‑or, at the best shortly thereafter.
(viii) Since the official failed to report for duty by stipulated time, or soon thereafter, he could not legitimately claim immunity from disciplinary action on the ground, adduced by him, that he had not defied Government orders, but only put in applications for consideration on compassionate grounds.
(ix) The only points, therefore, left for determination are whether
(a) the offence committed by the appellant was of such gravity as to attract the punishment meted out to him, that is, "dismissal from service".
(b) whether there were any extenuating circumstances and factors which mitigated the offence ; and
(c) if so, to what extent ?
10. Before we attempt to answer the questions raised at serial (ix) above, reference to certain other events and circumstances, not mentioned earlier, seems necessary. After the appellant's requests for deferment of transfer and for grant of leave on leave‑cum‑transfer basis, but before the final order directing him to report at the headquarters, an enquiry into certain financial transactions at the Embassy was ordered by Government. The appellant, as the Accountant of the Embassy, not only reported certain malpractices alleged to have been indulged in by the Charge d' Affaires, but also helped a high level Inspection Party to verify the truth of these allegations. This caused the displeasure and hostility of the Charged' Affairs, who after having supported the appellant's requests for deferment of transfer and grant of leave completely turned hostile and took determined step to ensure an early return of the appellant to Pakistan. There are also indications that the Ministry took an unnecessarily stern view of the delay made by the appellant in returning to Pakistan. In fact, the show‑cause notice served on the appel lant, without considering the possibility of the existence of any extenuating factors or giving heed to the compassionate aspect of the appellant's circumstances, straightaway proposed his dismissal from service. This was clearly indicative of a bias on the part of the concerned authorities. This facts must, therefore, weigh in determining the appropriateness, or otherwise, of) the punishment.
11. In addition we have also to take account of the fact that the appel lant rendered valuable assistance to the Inspection Party and this fact has been acknowledged in the Ministry of Foreign Affairs nothings on the official file. Had he not stayed back at the Hague, in spite of orders to the con trary, he would not have been able to render the assistance. Whether he did so for purely personal and selfish motives or out of patriotic considerations, the fact remains that he was able to promote the public interest. This fact must also not be lost sight of in determining the quantum of punishment that should be adjudged as justified.
12. During the course of the hearing, two points of legal nature were made out by the appellant. It was contended that rule 5(l)(xiii) was wrongly resorted to and without proper application of mind. It was also maintained that the action taken against him was discriminatory, inasmch as, while in similar other cases of overstay, such drastic action was not resorted to against the dilinquents, a departure was made in this case without justification, which could not be legally upheld.
13. So far as the first point is concerned, we have examined the relevant departmental file and we are in a position to confirm that actually, there is no formal decision thereon for dispensing with the enquiry pres cribed in rule 5(l)(ii) and resorting to the summary procedure under rule 5(I)(iii). There is consequently, no statement of the reasons for doing so. However, we do not think that this irregularity has, in any way, prejudiced the appellant in his defence. The facts and circumstances of the case were clear and apparent from the record and did not call for the examination of any witnesses. Therefore, calling of witnesses, recording of their evidence and subjecting them to cross‑examination was out of the question. The allegations being clear and unambiguous, they could either be admitted or denied. Hence, the short‑cut procedure adopted by the Department. Accordingly, are unable to uphold the contention that the irregularity in the proceedings has vitiated the impugned order.
14. As regards the second point, we do see some force in it. Instances were mentioned before us, and not denied by the respondent‑department, of employees of the Ministry of Foreign Affairs, even in the Embassy at the Hague, dealt with much more leniently in similar circumstances. In the face of these instances, we are unable to see any justification for the attitude adopted in the case of the appellant. Penal action may be both punitive and deterrent, but, it cannot be justified if it discriminates between offenders of the same category. Specialty in the administrative field, it would be subversive of good order and discipline and, therefore, net in the public interest to allow any employees of Government to harbour a grievance of being discriminated against. We, therefore, uphold the appellant's conten tion on this point.
15. Viewing the case in its totality, we are of the view that, although the appellant did infringe the rules of discipline by not returning to Pakistan for duty when asked to, he had, for a considerable part of the timer an execuse for not doing so, as he was trying, at first, to get the transfer deferred and, later, to obtain leave to attend to his problems. His interest in, and help to the authorities in connection with the inspection of the financial affairs of the Embassy was also a factor in his favour. We were informed that the 'inspection Party was able to collect evidence, of huge mis appropriation of funds, which led to the dismissal of the former Charge d' Affairs of the Embassy. Since the appellant was greatly helpful in this, he would deserve to be rewarded for this by taking a less severe view of his delinquency. Moreover, as the facts of the case show, the entire series of developments culminating in the appellant's dismissal from service have emanated from his keenness to fulfil his paternal responsibility of giving a good education to his only child, which was supported by the Embassy, but, not, unfortunately, considered sympathetically by the Ministry of Foreign Affair. This should, therefore, constitute, an added ground for taking a lenient view of the cases
16. In the light of the above, we holy that the appellant did not deserve the punishment inflicted on him. We, therefore, modify the punishment from dismissal to censure and stoppage of increments for three years. We, further order that the appellant be re‑instated in service forth‑with, with effect from the date of his dismissal, but that he shall not be Paid any arrears for the intervening period.
17. With the above orders, the appeal is partially allowed.
18. No order as to costs.
A. E. Appeal partly allowed.