1981 PLP (C (PLC(CS))

N. A. CHOUDHURY (MEMBER).‑The appellant, Dr. Rab. Nawaz Khan, was recruited in the Health Department of Government of N. W. F. P., with effect from 19‑7‑1954. He was confirmed as Medical Officer in the former senior scale with effect from 1‑7‑1979. On 18‑1‑1975, his services were placed at the disposal of the Federal Government in the Ministry of Health for appointment as Associate Physician/Civil Surgeon. For this post, the appellant had been selected by the Federal Public Service Commission in accordance with the prescribed rules. In the orders issued by the Provincial Government, it was clarified that the appellant still retained his lien on his post in the Provincial Government till his confirmation in the Federal Govern ment is ordered. In the notification issued by the Federal Government on 27th February, 1975, the appellant was notified as having been appointed as Associate Physician/Civil Surgeon in Grade 18 in the Central Government Polyclinic, on ad hoc basis with effect from 4‑2‑1975 until further orders. The appellant was transferred from the Polyclinic to a dispensary in Sector G‑7/3‑4. which is a very junior assignment. On his representation, the transfer to this assignment was cancelled under the orders of the concerned Minister, and he was transferred back to the Polyclinic to hold acting charge of the Medical Superintendent. The appellant with the approval of the Health Minister, requested the A.G.P.R. to conduct a special audit of the accounts of the Polyclinic as he apprehended certain irregularities in those accounts. On 4‑2‑1976, instead of the special audit of the A. G. P. R. the Deputy Secretary (Admn.) and Section Officer (Budget) of the Ministry of Health, carried out a surprise check of the Polyclinic accounts. During the check, they found that the cash book was incomplete. The next day, the Accountant and the Cashier were suspended. At this stage, orders were issued to appoint Dr. Mohsin Ali as Medical Superin tendent, and the appellant was also suspended from service. On 25‑3‑1976, he was charge‑sheeted for (i) certain irregularities in the accounts; (u) for taking unauthorised advances of various amounts at different times from the office cash for his personal use and getting some temporary receipts signed in this connection from the Cashier; and (ii) he threatened the Cashier with serious consequences if he demanded the refund of the advances. This chase‑sheet was issued on 25‑3‑1976. An Inquiry Officer was appointed. As a result of the recommendations of the Inquiry Officer, an order was passed on 4‑4‑1978 retiring the appellant compulsorily from service. The appellant filed a Review Petition on 30‑6‑1978, which was rejected on 19‑7‑1979. This appeal to the Service Tribunal dated 18‑8‑1979 is against the above final order of the Administration. After hearing both the parties today, in detail, we also examined the papers relating to inquiry. The following points emerged as a result of the examination "(1) Two witnesses, namely Dr. M. A. Naubahar and Dr. Mohsin Ali were examined as prosecution witnesses in the absence of the accused officer in connection with the charge relating to his acceptance of practising fee, denying him an important right of cross‑examination of the witnesses. Since the officer has been ultimately punished entirely on this very charge, the examination of these two witnesses attains a major importance as well as the cross‑examination by the accused officer. (2) The appellant cited a list of seven defence witnesses, but the Inquiry Officer did not call any one of these defence witnesses for examination and concluded his inquiry without them. (3) The precedents of Dr. Shaukat and Dr. Sarfaraz Ahmad were already on record, who, while holding the charge of one practising and one non‑practising post received their share of the practising fees in the identical circumstances as those of the appellant. The former had drawn Rs. 22,000 and the latter Rs. 21,000. (4) Dr. Sirajul Haq and Dr. Shamsul Arifin had drawn their share of fees for the private practice while they were holding the regular charge of non‑practising post of the Medical Superintendent in the Central Government Polyclinic. They were freely practising while holding the charge of non‑practising post and were receiving their share of the practising fees. (5) Dr. Rab Nawaz Khan had drawn only Rs. 6,G00 as his share of practising fee while holding the dual charge of the Associate Physician and Medical Superintendent, Polyclinic. This amount was ultimately recovered from him." The learned State counsel, while replying to the above points, admitted that Dr. Naubahar and Dr. Mohsin Ali were examined in the absence of the appellant on the charge on which the appellant has been punished, but they were not examined as formal witnesses. As to the crucial question whether or not their names were included in the list of prosecution witnesses, there was no reply from the learned State counsel. As regards the point that none of the defence witnesses cited by the appellant was examined in the inquiry, the learned State counsel made a vague reply that it was not necessary for the Inquiry Officer to call all the witnesses. When he was confronted as to under which law or rule all the defence witnesses named by the appellant can be excluded for the purpose of inquiry, the learned State counsel had no legal explanation to this point. As regards the precedents quoted by the appellant of two identical cases of Doctors, who bad drawn share of the fees of the private practice on the same basis in the identical circumstances, the learned State counsel evaded the answer on the grounds that the issue was not relevant because the facts and merits of those cases were not being examined in the court at the present moment. He made a reference to page 10 of the inquiry report, which refers to the procedure laid down, under para. 651, section VII of the Central Treasury Rules (Vol. I). This part of the inquiry also mentions that the accused officer did not follow the procedure to obtain his share of the practising fees apart from the fact that he was not entitled to receive these fees under the rules. As regards the case of Dr. Sirajul Haq and Dr. Shamsul Arifin, who held the regular charge of the Medical Superintendent, and received share of the fees of private knowing fully well that the post was a non‑practising one, the learned State counsel had again no reply, except that these cases were not being discussed in this Tribunal. After considering the points which emerged as examination of the inquiry record and pleading of the learned counsel for both the parties, we have also examined the provisions of the Central Treasury Rules, para.

651. The following provision of sub‑rule (ii)(a) is relevant "If the exact amount of the fees and the distribution of shares between the Government and the Government servant are known beforehand, the share due to the Government should be credited as miscellaneous receipt of the department to which the Government servant belongs and the rest should be collected by the Government servant himself. The Government shale should be paid into the treasury as far as possible, by the body or person paying the fee . . . ." It is clear from the above provision which has been fortunately quoted by the learned State counsel that the officer could outright collect his share of practising fee and was liable to deposit only the Government share to the Government account, because his share of the fees under the operative rules was known to him. He had done nothing more and nothing less than the above. No irregularity of procedure as contemplated in the Treasury Rules or any other rules cited by the respondent's counsel has been com mitted. We are also not convinced with the explanation of learned State counsel that under any law or procedure, two witnesses who have been examined by the Inquiry Officer on the charge on which the accused officer has been punished could be examined in his absence even as informal witnesses. Since these witnesses were included in the list of prosecution witnesses and specifically called for examination, the point half‑heartedly made by the learned State counsel, does not make any impression. The fact is establishes that two important witnesses whose statements verbally made, have been used for ultimate punishment were examined in the absence of the accused officer, thus denying to him the vital right of cross‑examination of these twos witnesses. Similarly, we are not at all impressed with the arguments of the learned State counsel that all the witnesses cited by the appellant as defence witnesses could be eliminated under any law or procedure. Serious violation/denial/ of vital right of producing certain defence witnesses has taken place according to the admitted position. We are also surprised at the arguments of the learned State counsel that the action of two Doctors receiving their share of fees of much larger amount in identical circumstances has not been called into question, while serious discrimination has been made against the appellant. The argument of the respondent Department about Dr. Sirajul Haq and Dr. Shamsul Arifin who have drawn their share of the practising fees while holding regular charge of the post of Medical Superintendent, which is admittedly a non‑practising post, also lacks all grace. The Government has failed to take action against them for serious violation of the rules, and have chosen to pick up only the appellant for this punishment of so‑called irregularity. We also do not agree with the Government that the Doctors while holding charge of one non‑practising post in additions to their regular charge of a practising post can be prevented from receiving their share of fees for private practice. This would be against the norms of dual charge arrangement and no orders or rule have been cited to support this decision of the Government. In the above circumstances, we hold that defence of the Government is not pertinent and graceful to go to the extent of supporting other two irregular action of the Doctors in the identical circumstances and not feeling the necessity of taking action against them even now. The circumstances under which this discrimination has been made against one of the officers is extremely unforunate and unusual and to say the least, lacks all administrative grace. We accept the appeal of Dr. Rab Nawaz Khan. He is ordered to be re‑instated onto his post under the Federal Government with effect from the date he was retired with all the consequential benefits of seniority, promotion, accruing to him under the rules. We also direct the refund of Rs. 6,000 which was recovered from the appellant on account of fees for private practice in which he engaged himself during his dual charge arrange ment.