1988 PLP (C (PLC(CS))

CH. A RAHMAN KHAN MEMBER--The appellant, Mr. G. Ahmed, Chief Superintendent (formerly Principal Technical Executive), POFs, Wah Cantt., has come in appeal against the impugned order dated 9-5-1977 which is reproduced below:- Dated 9-5-1977 Mr. G. AHMED, OSD/POF Board (Grade 20) On the basis of the charge-sheet served upon him under the Ministry of Defence (DPD) u.o. No.Pt/7521/75-DP-2 of Feb. 14, 1977 the Authority has approved the imposition of the following penalties on Mr. G. Ahmad: - (i) Reversion to his original Grade 19 and withholding of his promotion to Grade 20 for a period of 3 years beginning from August, 1976. (ii) Declaring him as ineligible for foreign assignment in future.

2. Reversion to Grade 19 will take effect from 9-5-1977." His departmental appeal was rejected on 3-1-1978. Hence this appeal before the Tribunal.

3. It was contended by the learned counsel for the appellant that while serving as Principal Technical Executive in Grade 20 in POFs, Wah Cantt., he was directed by the Government of Pakistan to proceed to Libya in March, 1976 on temporary duty for a period of three months vide letter dated 8th March, 1976. It was submitted that before leaving for Libya the appellant had an attack of appendicitis on 21-1-1976. He was hospitalised till 25-1-1976 and was to be operated upon in the mid of March 1976. However, in view of the Government instructions, he was instructed to proceed immediately to Libya with the express understanding that he could come back for medical care whenever necessary. The appellant left for Libya as head of the delegation on 17-3-1976. While in Tripoli, the appellant had two attacks of appendicitis on 21-3-1976 and the other one in the middle of April, 1976.

4. It was contended that in view of the state of health of the appellant he was sent back by the Libyan Government for necessary appendicitis operation for a period of two weeks or so. He was also required to undertake some official work with regard to the protocol and selection of additional contingent of experts and staff. The extracts of the letter addressed to Mr. Masood Hassan, Secretary Defence, Defence Production Division is appended below: - "My dear Mr. Hassan, Tripoli 17 29 April, 1976 We have indeed been very happy to have the Pakistan Advisory Group, led by Mr. G. Ahmed. They arrived in Tripoli on the 17th of March while I myself had been away. Mr. Ahmed has conveyed your warm greetings to me and I reciprocate them most sincerely. I am Looking forward to my visit to Pakistan but, just at present, I am very heavily pre-occupied and as such it does not seem likely in the near future. However, as soon as I can manage I shall communicate with you on the possibility of my visit. I a m grateful for the cooperation and prompt and competent help being provided to us. I hope that this cooperation will, Inshallah, grow with the passage of time. I have seen the text of the proposed protocol agreement concerning the Advisory Group. I am giving my views separately. We are of course very keen to have it finalized at an early date to avoid any delays in payment of dues. On completion of the immediate task in hand Mr. Ahmed is returning to Pakistan for two weeks or so. He was not well also and I hope and pray that everything goes well and we can welcome him in Tripoli very soon. With kind regards, Yours sincerely, Sd. H.E. Mr. Masood Hassan, Lt.-Col. Hamid Bel Kassem Secretary Defence, Director, Military Contracting Defence Production and Procurement. Division, Rawalpindi. Government of Libyan Arab Republic." Extract of another letter addressed to the Chairman, POF, Wah Cantt. is also reproduced below: xxx xxx xxx xxx "

4. After completing the immediate task in hand Mr. G. Ahmed, Chief of the Advisory Group, is returning to Pakistan for a period of two weeks or so. He has not been well recently and we wish and pray that all goes satisfactorily. We shall look forward to welcome him, alongwith his family members, additional experts and staff members. Necessary air tickets have been provided to Mr. Ahmed for his family members, but for the experts and staff members necessary arrangements will be made by our Embassy in Islamabad. They are being advised separately to issue air tickets and two weeks advance money to each pe (Sd.) (Lt.-Col. Hamid Abul Kassem) Director, MC&P, Government of the Libyan Arab Republic."

5. It was further submitted that while in Pakistan the appellant was operated upon for appendicitis on 16-5-1976 and remained in hospital for 19 days which is unusual time for appendicitis operation to-recover. This unusual delay in the healing process of the wounds occurred because it had become septic. An extract from the discharge certificate by Dr. S. D. Asif, Surgical Specialist is reproduced below: - "I examined Mr. G. Ahmed, Principal Technical Executive, Pakistan Ordnance Factories, on 5th May, 1976. He had had an appendicitis attack in Tripoli about three weeks earlier and as such could not be operated upon till 4 to 6 weeks had elapsed after the attack. He was operated upon on 16-5-1976 and was discharged from the Hospital on 2-6-1976. His wound had become sceptic and thus took much longer for healing. He has been under regular observation. I have again examined him today and I now find him fit for international travel and performance of routine official duties. (Sd.) Dr. S.D. Asif. 4th August, 1976. Surgeon POF Hospital, Wah Cantt."

6. It was submitted that the appellant's state of health was well known to the authorities in POFs. He was granted leave on average pay, for the period from, 7-5-76 to 30-6-76 and thereafter during the recouperating stage the appellant was attached to the POFs Board to perform light duty by way of assisting the Board in the selection of experts and staff. During this period the appellant was asked to work on the protocol in the absence of which the Libyan Government decided to stop the payment to the other members of his delegation. Relevant extracts from the statement of ex-Chairman, POF Board are appended below to clarify the situation: - xxx xxx xxx "

2. Mr. G. Ahmad was considered fit for duty by doctors on 1-7-1976. On the same day a meeting was being held in the D.P. Division for Libyan protocol. Mr. G. Ahmed was asked by me to attend that meeting, so that benefit of his experience of Libyan conditions and his discussions there was available. Settling of terms and conditions was essential and we expected that it could be done in a few days, hence I authorised his attachment to POF WAH for that purpose and he worked with D.P. Division and POF for its finalisation. We never expected that processing of protocol would take such a long time as it did.

3. During the period of his stay in Pakistan we did not receive any communication from Libyan authorities showing urgency for his return to Libya. xxx xxx xxx xxx (b) He was physically present in POF WAH in the first week of August and was working on the drafting of the protocol Agreement when on 1 Aug the approval of Prime Minister was received for the promotion of a number of Grade 20 officers including him. 10 February, 1977."

7. It was strongly contended by the learned counsel for the appellant that it was on the express instructions of the Secretary, Defence Production Division and Chairman, POFs Wah that the appellant stayed back in Pakistan. The situation was very much in the knowledge of the authorities concerned. He was then particularly asked by the' Secretary, Defence Production Division to take back with him a copy' of the protocol which was finalized but he could not do so because' the approval by the Minister of State for Defence was not accorded' due to his other engagements. He, therefore, left for- Libya on 13-8-1976. On reaching Libya the appellant was enquired about the protocol agreement and the additional contingent of experts. Since, his reply was not in accordance with their desire, the Libyan Government informed the appellant that they did not need his services: The matter was communicated to the Secretary, Defence Production", Division whereupon the appellant was signalled to return to Pakistan on 28-8-1976.

8. It was submitted that although the facts of the case were well-known to all concerned but in view of this mishap the appellant was made scapegoat and he was issued a charge-sheet dated 27-12-1976 signed by Mr. Muhammad Masood, OSD (Joint Secretary) who was not the Authorised Officer. The enquiry was conducted by the Enquiry Officer. The appellant submitted his reply in detail and also objected to the appointment of the Authorised Officer, which was illegal. Therefore, another charge-sheet dated 14-2-1977 signed by the then Secretary, Defence Production Division as Authorised Officer was, served on him. During the enquiry which was actually conducted on the first charge-sheet signed by illegal Authorised Officer, the appellant was not permitted to cross-examine any witness in spite of his request. There was no enquiry held after the second charge-sheet was served. The appellant was punished by order dated 9-5-1977 reducing him from Grade 20 to Grade 19 for a period of three years and declaring him ineligible for any foreign assignment.

9. It was strongly contended by the learned counsel for the, appellant that the charges contained in the charge-sheet were not based on factual position. The extracts of the charge-sheet are given below: - "(1)Having been deputed to Libya by Ministry of Defence for a period of 3 months (vide their letter No.7/521/75-DP-2, dated 8-3-1976), which period was later on extended to 6 months, you left for Pakistan on April 30, 1976 without prior approval of the Ministry of Defence. (2) You stayed in Pakistan till August 13, 1976 without approval of Ministry of Defence or LAR authorities. (3) You suppressed information that you were required to return to L AR immediately and that you had later been instructed not to return to Libya." It was argued that in view of the documentary evidence reproduced in the preceding paras. it is more than evident that all the three charges stand 'not proved' without any shadow of doubt. The evidence is not challenged by Respondents in any way. If anything, the fault lies elsewhere which is obvious.

10. It was further argued that in spite of the repeated requests the appellant was not provided a copy of the enquiry report at any stage. Although the supply of a copy of enquiry report was not incumbent upon the respondent-department but in view of the judgment contained in P L D 1981 S C 176 (S. Mir Muhammad v. Govt. of NWFP), the Respondents had to supply a copy which has not been done so far. In addition, in spite of the fact that the appellant requested for 'personal hearing' in his reply to the charge-sheet specifically, he was not afforded this opportunity to avail of this privilege. (PLD 1963 S C 460 refers).

11. It was strongly contended by the learned counsel for the appellant that under rule 5(1)(iii) of the Govt. Servants (E&D) Rules, 1973 a show-cause notice providing a reasonable opportunity to the appellant to defend himself should have been provided and he should have been informed about the action proposed to be taken against him. No show-cause notice in this case was served and there was no indication of the punishment to be awarded was given. The charge -sheet which is obviously baseless in this case was not accompanied by any statement of allegations. In view of the above, it was contended that the impugned order may be set aside being illegal and void in the interest of fairplay and justice.

12. It was contended by the learned Deputy Attorney General assisted by the learned counsel for the State and the representatives for Respondents that although no show-cause notice was issued but the charge-sheet served on the appellant contained all necessary details as required under rule 5(1)(iii) of the Govt. Servants (E&D) Rules. The lacuna initially created with regard to the Authorised Officer was also removed later vide order dated 14-2-1977. It was further submitted that a copy of the enquiry report-was not provided to the appellant because under the then existing rules it was not to be given to him. The appellant, however, went to the Federal Service Tribunal on the subject who also vide order dated 4-7-1977 rejected his request for the supply of a copy of the enquiry report. However, the appellant never approached the Respondent for supply of a copy of the enquiry- report after the judgment in P L D 1981 S C 176 (S. Mir Muhammad v. Govt. of NWFP). If the appellant had done so, a copy of the enquiry report could be provided without any delay. As regards his request for personal hearing, in view of his explanation to the charge-sheet and finding of the enquiry report, it was not considered necessary to accede to his request because the facts of the case were clearly against him.

13. We have given our considered thoughts to the facts submitted in the preceding paras. but we cannot escape the conclusion that in this case the Authorised Officer failed to gauge the gravity of the situation and was not able to conduct the proceedings in the prescribed manner. The enquiry was also conducted in an judicious and slipshod method in which the obvious facts which speak quite otherwise in favour of the appellant were ignored. Under the circumstances we are of the view that no charge is proved against the appellant and in fact the learned counsels for the Respondents have also failed to make out a case with any reasonable conviction. In fact the Respondents had no case to argue.

14. On the legal plain the Respondents failed to convince the Tribunal on all three counts i.e. for non-supply of a copy of the enquiry report, for not serving a proper show-cause notice and not affording the opportunity of personal hearing as requested by the appellant. It is a settled law that these three steps cannot be ignored by the Respondents under any circumstances. To say the least, all this gave the Tribunal a very poor view of state and the manner of the conduct of this disciplinary case against the appellant.

15. The upshot of the above discussion is that we accept the appeal both on the legal plane as well as on facts and merits. We, therefore, set aside the impugned order dated 9-5-1977 with all consequential benefits. Ordered accordingly.

16. No order as to costs. S. Q./400/Sr.F Appeal accepted.