1988 PLP (C (PLC(CS))

Abdul Saeed Khan Ghori, Government Counsel for Respondents. Date of hearing: 12th April, 1988. DR. A.Q.QAZI (MEMBER).‑‑This appeal is directed against the final appellate order of Chief Secretary who has rejected the departmental appeal of the appellant against the order of the Secretary, Health by which he had imposed the minor penalty of withholding of two annual increments with cumulative effect. The original order of the Secretary, Health has been however modified by the Chief Secretary to the extent that the `cumulative effect' has been converted with ordinary punishment of stoppage of two annual increments. 2. 1n order to understand this case it shall be instructive to briefly narrate the history and the facts of the case. Appellant Dr. Abdul Salam Memon was working as Resident Medical Officer Dadu in the year 1980 and by that time he has put in 20 years of active service. It is the plea of the appellant that while he was posted as R.M.O. Dadu his brother‑in‑law expired on 18th June, 1986 and that the appellant's sister (wife of the deceased) who was an old patient of Bronchial Asthma also fell seriously ill.

3. The appellant on receiving the message of serious illness of the sister requested the Civil Surgeon Dadu for permission to leave the Headquarter w.e.f. 10th July, 1986 and for casual leave for one day. This request of the appellant was refused by the Civil Surgeon verbally on the ground that since he (Civil Surgeon) had to go to Hyderabad on 11‑7‑1986 to attend the marriage ceremony of a relative of the Deputy Commissioner, Dadu, the leave of the appellant could not be granted. It is further complained by the appellant that since his sister (wife of the deceased Mr. Fateh Muhammad Memon) was seriously ill and he had no other option but to leave the Headquarter, he therefore, on the ground of her sister's ailment had to leave the Headquarter and from there he requested for extension of his casual leave for five days more. This leave which was requested on 10th July, 1986 was not granted and he was directed by a telegram dated 15‑7 1986 by Civil Surgeon, Dadu to return immediately.

4. It is further plea of the appellant that as the condition of his sister was precarious and bad and there was nobody (male) to look after her, so the appellant, who was the only brother was to look after her and her ailment during her period of `Iddat'. The appellant therefore chose and requested for four months earned leave w.e.f. 18‑7‑1986 on the said ground.

5. While he was on said unauthorised leave respondent No.3 (Civil Surgeon, Dadu) asked the appellant to submit his formal application for further necessary action. This was complied with by the appellant Appellant appears to have stayed on the leave and while he continued to do so, he received a first show cause notice dated 7th August, 1986 (Annexure‑I of the main appeal) in which he was called upon to show‑cause as to `why he proceeded on unauthorised leave for a period of five days'. It appears from the record that he replied the show‑cause notice which he claims to have received on 2nd September, 1986. Since his reply was a little belated and his application for four months leave was in pendency and there was a confusion he received a 2nd show‑cause notice dated 17‑9‑1986. The detail of that misconduct is reproduced to read as that "you applied for 120 days earned leave on private affairs and proceeded on the said leave in anticipation of its sanction w.e.f. 12‑7‑1986 and have been absconding since then". The second show‑cause notice, as per the statement of the appellant was received on 23rd September, 1986 at his residential address and which was also replied accordingly and is on record. Replies to both the show‑cause notices (issued on 7‑8‑1986 and 17‑9‑1986) do not bear any date. It appears from the record and the order dated 20‑9‑1986 which is an original impugned order that Dr. Abdul Salam Memon has been personally heard and his replies to the said show‑cause notices of 7‑8‑1986 and 17‑9‑1986 have been duly considered and that penalty of "withholding of two increments with cumulative effect, was imposed upon him accordingly". The appellant not satisfied with the original punitive order, filed an appeal against this order which was rejected by the appellate authority though the words `cumulative effect' were replaced with `immediate effect', and the appellant has sought a recourse to this Tribunal for redress of his grievance.

6. We have heard in great length appellant Dr. Abdul Salam Memon, who was present in person to Advocate his case. We have also heard the arguments of learned Advocate Mr. Abdul Saeed Khan Ghori and Assistant Advocate‑General Mr. Abdul Ghafoor Mangi on behalf of the official respondents. We have also perused the record that we have found necessary in order to reach factual and judicial conclusions in this case. We shall now discuss the merits of the case in respect of the facts and law.

7. It is an admitted position that Dr. Abdul Salam Memon the appellant did proceed on one day casual leave on 10‑7‑1986 which was without permission, whatever be the circumstances, this leave was further extended firstly by 5 days of casual leave and then leave of four months on private affairs. This fact is not denied by the respondents that the appellant's request for a four months leave was processed for sanction to the appropriate authority. In fact it is evident from the record of the Accountant‑General, Sind (Annexure‑I of the departmental appeal) that his application was properly processed for sanction of leave on private affairs on full pay for 120 days w.e.f. 12‑7‑1986 to 8‑11‑1986 or from the date of availing of the leave It cannot be proved from the record made available to us, nor do the counsel for respondents insist on the plea that the leave on private affairs was specifically denied to him. We are, therefore, led to believe from the arguments advanced at the Bar and the record put before us that the appellant did proceed on earned leave which was properly processed by the Health Department and through the Accountant‑General, Surd but which was awaiting a proper sanction. However, he did proceed on `unsanctioned' leave in the meantime. This is our first conclusion.

8. Now we come to the aspect of law. The appellant has drawn our attention to the grounds of appeal. He has drawn our attention to item No.6 of the check list of requirements circulated by the regulation wing by the S&GAD under cover No.SOI (S&GAD) 216/85, dated 9‑6‑1985. We have read this instruction and item No.6 of the check list of the memorandum of Establishment Division No.IV of 20/82‑R.I., requires that the decision not to hold an enquiry had to be taken judiciously and not arbitrarily. This is the view held by all superior Courts in the past and we too bow before this view. We only observe that in this particular case it was a question of proceeding either on earned leave `authorisedly' or `unauthorisedly'. It is a finding of mere `fact' and `record' that the appellant did proceed on earned leave without legal sanction and hence in our opinion enquiry was not necessary.

9. We now come to the final point for determination i.e. the quantum of the punishment. It has not been denied in the proceedings that Abdul Salam Memori has had an unblemished service record. It has also been affirmed in proceedings that the officer is honest. While we decide this we shall not lose sight of the fact that this was a case of first lapse on the part of officer if at all and under verb compelling circumstances. In view of law and facts advanced in our earlier paras, we are inclined to take a lenient view of this appellant who did proceed on `unauthorised leave' under very difficult and pressing circumstances'. We also do believe that he could have been granted leave under such circumstances extraordinary. We, therefore, substitute the penalty of withholding of two increments with a simple censure or reprimand to the officer. This appeal is accordingly allowed in the above terms. There will be no order as to costs. Ordered accordingly. . A.A./173/Sr.S Appeal partly allowed.