1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑This case began with initiation of disciplinary action against the appellant who was then working as Unani Hakim of Sind Government at Garhi Mori, District Khairpur. Based on audit report pinpointing the loss of medicines during the years 1975‑76 to 1978‑79, show‑cause notice dated 20‑11‑1982 was served on the appellant. The show‑cause notice contained the following allegations: (1) Spoiled the stock register of medicines thus, making the entries recorded therein to be illegible. (2) Failed to bring the available stock of medicines in store on a new register immediately after the incidence which was avoided intentionally to shield your ulterior motive. (3) Failed to bring the Government loss immediately to the notice of higher authorities. (4) Failed to satisfy the audit on the above points. The appellant submitted his reply dated 2‑12‑1982, categorically denying the aforesaid allegations. Somehow the explanation furnished by him was found unsatisfactory by the Director, Health Services who, therefore, by his order dated 2‑11‑1983 imposed two penalties upon the appellant; namely major penalty of dismissal from Government Service and recovery of Rs.11,475 owing to the alleged loss caused to the Government. The appellant challenged the above order in departmental appeal preferred to the Secretary, Health Department who, by his order dated 4‑11‑1984, rejected the same. As the appellant received the appellate order of rejection of his appeal by ordinary post on 8‑5‑1985, he filed the present service appeal before this Tribunal on 27‑5‑1985. After hearing the learned counsel for the appellant and the learned State counsel the appeal was disposed of, by short order dated 14‑7‑1987 which is to the following effect. "Appellant and his counsel Mr. Aftab Alvi present. Mr. Abdul Saeed Khan Ghori, State counsel present. Heard arguments of the learned counsel for the parties. For reasons to be recorded separately, the appeal is allowed and the impugned order is set aside and the case is remanded back to the Authorised Officer concerned with direction to proceed afresh after serving charge‑sheet and statement of allegations on the appellant, in accordance with the relevant rules. During the pendency of the disciplinary proceedings against the appellant, he will remain under suspension." Following are the reasons in support of the above short order. The learned State counsel raised an initial objection that the appeal was hit by limitation. Apparently the appellate order was passed on 4‑11‑1984 whereas the present appeal was filed before the Service Tribunal on 27‑5‑1985 (i.e. about six months after the passing of the appellate order). As provided in section 4 of the Sind Service Tribunal Act, 1973, appeal was to be filed within 30 days of the communication of the final order, whether original or appellate. In view of this legal requirement the appeal was to be filed before the Service Tribunal within 30 days of the communication of the appellate order passed on 4‑11‑1984, to the appellant. However, the plea taken by the appellant in para. 5 of the memo. of his appeal is that he received the said order by ordinary post on 8‑5‑1985. In support of his plea he has produced the original postal envelope in which the appellate order was received by him and also the said appellate order: On examination of both these documents we found that the number under which the order was issued tallied with the number indicated on the envelope. However, the date of the said order was not shown alongwith the number on the envelope. Nevertheless, envelope carried two postal stamps, one of Karachi bearing the date of 6‑11‑1984 and another of Bahawalpur bearing date of 8th May, 1985. From these dates we are convinced that the appellate order which was issued on 4‑11‑1984 was seemingly despatched to the appellant by ordinary post, two days later (i.e. on 6‑11‑1984) and on account of usual postal delays it was received by the appellant at Bhawalpur on 8‑5‑1985. Thus, for computing the period of limitation, the date on which the appellant received the order was to be taken into consideration and as such his appeal was obviously in time. In view of the position stated above even the learned State counsel realized that his objection with regard to limitation was without force and, therefore, he did not press the same. Coming to the merits of the case, it would appear from the show‑cause notice that four charges reproduced hereinabove have been levelled against the appellant. On perusal of the detailed reply submitted by the appellant, it is found that appellant has denied all the said charges. .As regards charge No.l, that he had spoiled the stock register of medicines, his contention was that it was damaged and the entries therein were washed off on account of rain. So far the second charge is concerned that the appellant failed to bring the available stock of medicines on new register, the appellant's explanation was that on permission of the State Hakim, Khairpur, another register was prepared and necessary entries were made therein. The third charge against the appellant was that he failed to bring the Government loss immediately to the notice of higher authorities. As regards this charge the appellant had explained in para 3 of his reply that the intimation in writing was already sent to the State Hakim, Khairpur as per Letter No.130, dated 22‑9‑1979. The fourth charge with regard to appellant's failure to satisfy the audit objection was also denied by the appellant, by furnishing explanation in para 1 of his reply. The appellant's reply also indicated that he was not given personal hearing. The order of punishment dated 2‑11‑1983 passed by the Director, Health Services, clearly shows that the impugned punishment was awarded to the appellant as the said Director in the capacity of "Authority" observed in the order; "and whereas after taking into consideration his reply, the authority is satisfied that the charge of misconduct is proved". There is no elaboration in the impugned order if the Director had before him any other material besides the appellant's reply for coming to the conclusion that the charges against the appellant were proved. On the contrary even the appellant's reply instead of making any admission contained his categorical denial of the charges. Obviously there was no evidence to warrant the conclusion of the Director that the charges against the appellant were proved. Assuming for the sake of argument that any such evidence was available to the Director, yet there is no indication on record that the appellant was afforded opportunity to explain or challenge the same. It is true that the audit report was sent to the appellant for his comments but that too was sent to him much before the service of the show‑cause notice on him. Furthermore, only one charge related to the audit objection. In view of the appellant's reply controverting the audit objection, even that charge required further probe. The other three charges, apart from the charge relating to the audit objection had to be proved by tangible evidence particularly when they were denied by the appellant. We are of the view that no such evidence was available on record to hold the said charges as proved. In a case like the present one, since the charges made against the appellant were of factual nature and were denied by the appellant, the Authorised Officer had no alternative but to order detailed enquiry through Enquiry Officer or Enquiry Committee, instead of having recourse to short cut method that he actually adopted in this case by serving a show‑cause notice on the appellant. There can be no two opinions on the point that appellant could be punished only after the charges made against him were duly proved. As pointed out in foregoing paragraphs the learned Director had erroneously held the charges as proved without any such evidence before him. As per his order the only document that he considered before awarding punishment to the appellant was the appellant's own reply which rather refuted the charges. In view of his denial full‑dress enquiry was the only way. In this connection the procedure envisaged in rule 5(2) read with rule 6 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, was to be followed. Accordingly the appellant was to be served with charge‑sheet together with statement of allegations and further Enquiry Officer or Enquiry Committee was to be appointed to hold a detailed enquiry into the charges made against the appellant who in course of such enquiry was to be afforded sin opportunity of cross‑examining the witnesses examined by the Department and also examining his own witnesses, if any, in his defence, if he so chose. For the above reasons it was difficult to hold that the charges levelled against the appellant were proved. Consequently the impugned order could not be sustained. As stated in the short order appeal was allowed and the impugned order was set aside. By the said order the case was remanded back to the "Authorised Officer" with a direction that he shall proceed against the appellant afresh in accordance with the aforesaid rules. S.Q./148/Sr.S????????????????????????????????????????????????????????????????????????????????????? Case remanded.