1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHARY (CHAIRMAN).‑‑The relevant facts for the decision of the present appeal are that the appellant was working as Incharge Nurse in BS‑14 and was posted in Mayo Hospital, Lahore. The Hospital authorities received an information to the effect that the appellant is present in the battery room of the telephone exchange for sinister motive. Dr. Muhammad Rafiud Din, Additional Medical Superintendent of the Hospital accordingly conducted the raid. The room was found bolted from inside and lights off. It was with great difficulty that the appellant and her co‑accused were made to open the door. The Additional Medical Superintendent on examination found that sheet, pillow cover etc. were stained with semen. The Hospital authorities accordingly reported the matter to the local police, which registered a case against the appellant and others under Hudood Ordinance., The authorities, after the receipt of result of the chemical examiner and medico‑legal report of the appellant, decided to take disciplinary proceedings against the appellant on the charges of mis‑conduct. The respondent No.3, therefore, served the appellant with a show‑cause notice dated 21‑7‑1986. The relevant portion of the show‑cause notice reads as under:‑ (i) That on 27‑6‑1986 at midnight you were found present in the Battery Room of Telephone Exchange, Mayo Hospital, Lahore, alongwith Kanwar Muhammad Haroon, Telephone Supervisor and Muhammad Naeem, Sub‑Engineer Telephone. The room was bolted from inside and the lights were found put off by the surprise raid conducted by Additional Medical Superintendent, Mayo Hospital Dr. Muhammad Raft‑ud‑Din. Your presence in the Battery Room was a criminal act alongwith Mr. Muhammad Haroon. (ii) Local Police recovered a fresh semen stained chadar, pillow and pillow cover from the place of occurrence. The clothes stained wet and giving semen smell. (iii) The report of the Chemical Examiner regarding the above mentioned clothes is: "Stained with semen." (iv) The Medical Examination and the Chemical Examination Reports of the vaginal swabs taken after medico‑legal examination read as follows: ‑ "Hymen torn. Torn edges healed. Tear is complete one, vagina is lax and admits two fingers easily. She has been subjected to sexual intercourse."

2. The appellant submitted reply to the show‑cause notice and denied the allegations of misconduct. However it was admitted that at the time of raid by the Additional Medical Superintendent, the appellant was present in the Telephone Exchange. The respondent No.3 went through the explanation rendered by the appellant and found the same unsatisfactory. Therefore, she called upon the appellant to show cause why her case should not be recommended to the authority for imposition of major penalty. The appellant submitted a brief reply thereto and informed the respondent that she can only reiterate her previous stand. It was, however, added that the action of imposing penalty will be illegal, extremely cruel and unfair. The respondent No.3 thereafter formulated the report and submitted the same to the authority i.e. respondent No.2 who after affording the opportunity to the appellant to defend herself proceeded to impose the penalty cf dismissal from service. The order is dated 19th of May, 1987.

3. The appellant assailed the order of her dismissal from service through departmental appeal before the respondent No.l. Since that appeal was not decided within statutory period of 90 days, therefore, appellant proceeded to file the present appeal under section 4 of the Punjab Service Tribunal Act, 1974.

4. We heard Mr. Muhammad Rashid Malik, Advocate for the appellant on 29th cf September, 1987 and the appeal was posted to 7th of October, 1987 for orders when appellant through Mr. Muhammad Rashid Malik, Advocate made an application that Mr. Maqbool Elahi is the senior Counsel in this appeal and he wants to argue the appeal once again. Although arguments were heard and there was no occasion to grant the application yet in the interest of justice, we allowed the other Counsel, also, to argue the appeal. The appeal could not be decided because on subsequent dates the learned Senior Counsel was not available. It was ultimately on 11‑1‑1988 that the appeal was argued by him. We have gone through the record and heard the learned Counsel for the appellant, who in support of the appeal has raised the following points: ‑ (i) Firstly, that the respondent could have only imposed the penalty as prescribed in rule 3 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 and since the allegations of immorality are not covered by rule 3, therefore, whole proceedings are void ab initio; (ii) Secondly, that since the respondents Nos. 2 to 4 were biased on account of union activities of the appellant, therefore, she moved the respondent No.l for appointment of somebody else as authority and as authorised officer instead. But this application was not decided and instead the respondents continued with the proceedings and ultimately proceeded to dismiss her from service; (iii) Thirdly, it is argued that the case of the appellant at most had been covered by rule 9 but under this rule action could only be taken after the conclusion of the "Hudood" case, The action before the decision of the criminal case is illegal; and (iv) Lastly, it was argued that it was case of enquiry and the same could not have been dispensed with.

5. The argument of the learned counsel of the appellant is that since allegations against the appellant are not covered by any of the provisions of rule 3, therefore, the whole action is without jurisdiction. We would, therefore, first of all refer to rule 3 of the Efficiency and Discipline Rules before proceeding any further. The rule reads as under:‑ "

3. Grounds for penalty.‑‑A civil servant, who, (a) is inefficient or has ceased to be efficient; or (b) is guilty of misconduct; or (c) is corrupt, or may reasonably be considered corrupt because:‑ (i) he is, or any of his dependents or any other person through him or on his behalf, is in possession of pecuniary resources or of property disproportionate to his known sources of income, which he cannot reasonably account for; or (ii) he has assumed a style of living beyond his ostensible means; or (iii) he has a persistent reputation of being corrupt; or (d) is engaged, or is reasonably suspected of being engaged in subversive activities or is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorised person and his retention in service is, prejudicial to national security; shall be liable to be proceeded against under these rules and one or more of the penalties hereinafter mentioned may be imposed on him."

6. We have asked the learned counsel whether the term 'misconduct' is comprehensive to cover the immoral conduct of the appellant or not. The precise submission of the learned Counsel for the appellant was that the term 'misconduct' used in the Efficiency and Discipline Rules only relates to duties of public servant. The private or personal activities or actions cannot be deemed to have been covered by 'misconduct'. The term 'misconduct' has been defined in rule 2(1)(d) of the Efficiency and Discipline Rules, 1975 and the same reads as under:‑ "(d) 'Misconduct' means conduct prejudicial to good order or service discipline or contrary to the West Pakistan Government Servants (Conduct) Rules, 1966, as applicable to the Province of the Punjab or conduct unbecoming of an officer and a gentleman and includes any act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Governor, the Chief Minister, a Minister or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Civil Servant."

7. It is clear from the bare reading of this definition of term misconduct' that the arguments on behalf of the appellant are superficial and devoid of any merit. The charges against the appellant very much covered by the term 'misconduct'. The immoral act committed in the premises of the Hospital, therefore, the authorities rightly took cognisance of the matter. Even otherwise it is difficult to accept the interpretation of the learned Counsel for the appellant because it will amount to given a free licence to public servants to do whatever they liking and indulge in anti‑religious and immoral activities after the duties hours. The public servant is supposed to conduct himself properly all the time and wherever he is. The words 'conduct unbecoming of an officer and a Gentleman' are wide any comprehensive to cover all official and social activities of a public servant,

8. The accusations against the appellant are fully covered by rule 3 of the Efficiency and Discipline Rules, 1975. The arguments or the leaned counsel for the appellant if accepted will demolish the whole structure of civil service and shall also defeat the purpose of Civil Servants Act and Efficiency and Discipline Rules. The result will be that Civil Servant will be free to commit dacoities, run brothal houses and gambling dens, indulge in black marketing and smuggling. This obviously could not have been intention of the legislature. The civil servant cannot be heard to say that these are his private affair and not covered by the mischief of the word 'misconduct'. We hold that immoral conduct of the appellant is fully covered by 'misconduct',

9. Now we take up the arguments of the learned Counsel for the appellant that tile action against the appellant is male fide and oh account of she being office bearer of the union and remained on forefront in the agitation which was going few months back. We are least impressed by the arguments for the reasons:‑ , (i) Firstly, this was not the case of the appellant in reply to show‑cause notice and even the mala fides was not alleged in reply to show‑cause notice issued to her by the authorised officer. (ii) Secondly, the appellant was not the only office‑bearer of the union. There were many more and as is clear from press clipping attached by the appellant as Annexure 'D', the name of the appellant in this news item appeared at the end. It is not the case of the appellant that the respondents victimized members of the Action Committee. It is very convenient to allege mala fides but very difficult to prove the same. We find that there is no link between the union activities of the appellant and the present disciplinary proceedings. (iii) Thirdly, the nature of the allegations, which are fully supported by report of the Chemical Examiner and medical examination of the appellant; (iv) Fourthly, the presence of the appellant in the Battery Room of the Telephone Exchange at midnight with the male officials with whom she does not fall within the prohibited degree and who are 'Ghair Mehram' for her; and (v) Lastly, the medical report proves that the appellant is a woman of easy virtues.

10. The third contention of the appellant that allegations against the appellant are not covered by rule 9 of the Efficiency and Discipline Rules. We fail to understand how the learned Counsel has introduced rule 9 in this matter, as neither there is any reference nor the respondent has relied on this rule. It is the mere misapprehension of the learned counsel, otherwise it is not the case in which respondent had proceeded against the appellant under rule

9. The respondent proceeded against the appellant under rule 6 and dispensed with the enquiry under sub‑rule (3). The argument is, therefore, irrelevant.

11. As for the last ground in support of the appeal that it was the case of detailed enquiry is concerned, we have given our anxious consideration to the arguments of the learned Counsel but find ourselves unable to be persuaded by the same in view of the documentary evidence coupled with the admissions of the appellant herself. In the first instance we refer to the admissions of the appellant which are as under:‑ (a) The appellant was present with Mr. Muhammad Haroon, Telephone Supervisor and Muhammad Naeem, Sub‑Engineer at midnight on 27‑6‑1986 in the Telephone Exchange. (b) The door was closed. (c) That they were made to come out in the presence of many persons. (d) Appellant has not denied result of her medical examination. (e) The result of her medical examination as quoted in para 4 of the show‑cause notice.

12. When these admissions are read with the result of medical examination of the appellant as well as report of the Chemical Examiner, no scope is left for any detailed enquiry. We have asked Malik Muhammad Rashid one of the learned counsel for the appellant as to the marital status of the appellant. The reply was that the appellant was unmarried at the time of occurrence but now she has contracted marriage with her co‑accused i.e. Muhammad Haroon. The appellant has not challenged the result of her medical examination which itself is sufficient to prove the character of the appellant. We cannot even conceive that the respondents Nos.2 and 4, who belong to a noble profession will stoop so low as to victimize the appellant. There is not the slight evidence to suggest any such motive.

13. Now assuming for argument sake that the respondents Nos.2 to 3 wanted to punish the appellant for her union activities, the question will arise why they should have involved Miss Shagufta Yasmin and two male accused. The allegations against the appellant are further proved by her presence in the Battery Room of Telephone Exchange at midnight. The contention of the appellant that the door was chained from outside is sufficient to prove the allegations against her. It means that the people around were aware of her illicit relation with the Exchange officials and they were looking for an opportunity to get hold of them red handed. This knocks out the bottom of her defence that she had per chance gone to the Telephone Exchange to make a call. If it was so, then there was no question of any body chaining Telephone Exchange from outside. The defence version does not inspire any confidence and bristles with inherent weaknesses.

14. She has taken up the position that when she went there the doors of the Telephone Exchange were open but subsequently the same were closed on the pretext that the air‑conditioning is ineffective due to the doors remaining opened. This is clearly afterthought and introduced with the purpose to justify the closing of the door.

15. The authorities have absolute discretion to dispense with the enquiry and that discretion cannot be interfered. We are fortified in our view by the decision of the Supreme Court in the D.‑I. G. and another v. Anis‑ur‑Rehman reported as P L D 1985 S C page 134. the relevant portion of which reads as under:‑ "A discretion has, therefore, been conferred on the competent authority to decide whether a departmental inquiry through an Inquiry Officer is not necessary. The exercise of this discretion is not controlled by any pre‑requisite or guidelines. All the same as held by the Tribunal, it should appear ex facie from the record to have been resorted to fairly and justly and not oppressively and perversely. In the case in hand there was ample justification for dispensing with the inquiry through an Inquiry Officer. A superior officer of the appellants had conducted the raid in the company of another functionary of the Martial Law Headquarters. The things appearing before the superior officer itself established that there was laxity in observing the discipline and there was breach of it. On the facts, therefore, where a superior who has even otherwise the authority to control and supervise the functioning of his subordinate conducted such a raid, the results whereof were accepted by the appellants themselves, the resort to the show cause procedure without appointing any inquiry Officer cannot on any principle be objected to as abuse of the discretion or unjustified in law."

16. The result is that we do not find any merit in the appeal and the same is dismissed in limine. S. Q. /187/Sr.P Appeal dismissed.