1988 PLP (C (PLC(CS))

The charge‑sheet was accompanied by statement of allegations. The appellant submitted reply thereto and Respondent No.l after considering the explanation rendered by the appellant proceeded to appoint Mr. Hamid Asghar, Supdt. Central Jail, Rawalpindi as Enquiry Officer. The Enquiry Officer after holding necessary proceedings submitted his report on 14‑12‑1985 and made the following recommendations: "I, therefore, propose that Mr. Asad Mehmood, Asstt. Supdt. may lie punished with stoppage of increments for three years without future effect for his indecent behaviour towards the Supdt. Jail and non‑compliance of his verbal orders. His suspension period is now for eight months, which itself is a punishment in its own way. During suspension he will get 1/2 of his pay plus other usual allowances as admissible under the rules. The suspension period may count towards, his pay, pension etc. " The Respondent No.l after the receipt of the enquiry report proceeded to dismiss the appellant from service vide order dated 19‑1‑1986. The present appeal is directed against this order. The appellant filed the representation against the order of dismissal on 7th of February, 1986 but as the same was not decided within 90 days as per proviso (a) of Section 4 of the Tribunal Act, therefore, the appellant proceeded to file the present appeal on 3‑6‑1986 i.e. within next 30 days. The arguments were partly heard on 21‑6‑1987 at Rawalpindi Circuit and the remaining arguments were heard on 27‑6‑1987 at Lahore. I sent for Mr. Abdul Samad the then Superintendent Jail, Rawalpindi to seek clarification of his conduct. The learned counsel for the appellant submitted that the Respondent No.l illegally and without justification ignored the report of the Enquiry Officer. The learned counsel for the appellant in this context referred to portion at page 15 of this Paper Book which reads as under:‑ "Here one factor is again note able that the Superintendent District Jail, Attock did not inform Mr. Asad Mehmood that he is to join at Sub‑Jail, Attock Fort immediately and that he is not to avail the joining time. From the above it was presumed by the said Assistant Supdt. that he is to avail the normal joining time and then join at District Jail, Rawalpindi." Here one factor is clear that the Superintendent, District Jail, Attock did not inform Mr. Asad Mehmood that he has joined Sub‑Jail, Attock Fort immediately. While the other portion at page 16 reads as under:‑ "It is also worth noting that no written orders for joining at Sub‑Jail Attock Fort were given to Mr. Asad Mehmood, Assistant Superintendent by the Supdt. District Jail, Rawalpindi when he reported to him for duty on 16‑4‑1985." It is also worth noting that no written order of transfer to Sub‑Jail, Attock Fort were ever given to Mr. Asad Mehmood, Assistant Supdt. by the Superintendent, District Jail, Rawalpindi, when he reported to him for duty on 16‑4‑1985. On the other hand, the Respondent No.l held in his order at page 6 as under:‑ "He, however, was informed by the Supdt. District Jail, Attock, verbally that he had been posted to Camp Jail, Attock Fort, on temporary duty under the jurisdiction of Supdt. Distt., Attock. No doubt the orders so conveyed were verbal but were conveyed to him by a senior officer." The Respondent No.l has dealt with the report of the Enquiry Officer in a very cursory manner and not given serious consideration to the same. The above observation of the Respondent No.l are contradicted by the Supdt. Jail, Attock in his letter dated 2‑5‑1985 addressed to his counterpart at Rawalpindi, which says that the appellant was directed to join at Sub‑Jail, Attock Fort vide Memo. No.1007 dated 8th of April, 1985. This is the endorsement on the original transfer order dated 1‑4‑1985, relevant portion of the same reads as under:‑ "Copy of the above is made over to Mr. Asad Mahmood, Assistant Supdt. Jail, District Jail, Attock for compliance. He has been relieved of his duties on 8‑4‑1985 A.N." There is absolutely no mention of direction to the appellant to join Sub‑Jail, Attock Fort. Even otherwise this contention is without any merit for the simple reason that if the appellant was to report to Supdt. Jail, District Attock for onward duty at Sub‑Jail, Attock Fort, then there was no fun in relieving specially when no joining time was allowed under, rules as per the stand of the Respondent No.

1. When I look at the whole affair then the picture which emerges before me is that the Respondent No.l issued the transfer order on 1‑4‑1985 whereby the appellant was posted at Rawalpindi. However, it is an admitted position that the Respondent No. land his subordinates were treating the place of posting of the appellant at Sub‑Jail, Attack Fort. But there was no order to that effect. Therefore, this object was tried to be achieved through the letter of Superintendent Jail, Rawalpindi dated 7th of April, 1985 addressed to his counterpart at' Attock. But it seems that before this letter could reach at Attock, the appellant had already been relieved of his duties for reporting at Rawalpindi as per transfer order as it stood. The statement of the Supdt. Jail, Attock inspires no confidence and he is making contradictory statements as pointed out above; may be in order to please his colleagues or somebody else. This impression of mine is further fortified by the fact that Supdt. Jail, Attock did not inform the appellant as to the subsequent development in the matter. This is why that appellant reported for duty to Supdt. District Jail, Rawalpindi. The Department if not wholly then at least mainly responsible for this whole affair. The transfer order was being supplemented by oral order. I have asked Mr. Samad Khan as to the sanctity of such oral orders. He admitted that orders should have been in writing but unfortunately everybody tried to run the affairs of the state in the manner, he liked and thought it convenient. The letter written by Supdt. Jail, Rawalpindi to his counterpart at Attock incorporating the variation in the transfer order is without reference to the telephonic orders of the Respondent No.l. Everybody would be justified to refuse to accept the same from a person having no authority to pass transfer orders. Therefore, allegations of deliberately disobeying the "lawful orders" of his superiors falls to the ground. Neither the orders were lawful nor conveyed. There is no question of punishing the appellant on that account. As far the other charge of wilful absence from 8‑4‑1985 to 30‑5‑1985 is concerned suffice it is to say that here the Department was again at least partially if not wholly responsible. The Supdt. District Jail, Rawalpindi refused to let him join the duty and on the other hand told him to report for duty to Supdt. Jail, Attack. Mr. Samad Khan had explained that actually Mr. Kiani in whose place the appellant was transferred was at his strength but temporarily posted under the Supdt. District Jail, Attock. Therefore, similarly appellant was to remain on his strength for pay etc. while he was to perform his duty under the supervision of District Jail, Attock. He has, also, produced letter dated 7‑4‑1985 to which I have already referred. The last line of the letter is relevant on the present issue and reads that service book and LPC be sent to him for pay purpose etc. In this view of the matter and clearcut order of the Respondent No‑1 how the Supdt., District Jail, Rawalpindi, could have refused to allow the appellant to report for duty. The conduct of the Superintendent, District Jail, Rawalpindi is clearly contradictory. On the one hand, he represented that the appellant will be on his strength and this position was maintained by him before me. On the other hand, he told the appellant to report for duty to Superintendent, District Jail, Attock. This way it was he who violated the order of Respondent No.l. There is still another contradiction i.e. on the one hand, he refused him to allow to join District Jail, Rawalpindi. On the other hand, he proceeded to suspend him and also attached the statement of allegations. This was all done without authority and jurisdiction. The proper and legal course for the Superintendent, District Jail, Rawalpindi was to allow the appellant to resume duty at Rawalpindi as per transfer order of Respondent No.1 and then to instruct him to proceed to Sub‑Jail, Attock. This was admittedly not done. I am, therefore, clear in my mind that basis or starting point of whole trouble is the verbal transfer order which is neither recognised by law nor is valid. The question is who exceeded the limits? Whether it was Supdt. District Jail, Rawalpindi or the appellant? These are subsequent happenings and not the root cause. Therefore, I am not inclined to adjudicate this aspect of the matter. Now as for the absence is concerned, we may say that the appellant was responsible for the same to some extent but not wholly responsible. Therefore, the penalty imposed by the Enquiry Officer was, also, little harsh and the order of the Respondent No.1 cannot be justified at all. The upshot of the discussion is that I accept this appeal, set aside the order of dismissal passed by Respondent being too harsh in the circumstances of the case, and convert the penalty of dismissal to that of stoppage of increments for two years without future effect. The appellant to be treated in service throughout. The period from 20‑1‑1986 to 30‑6‑1987, shall be treated as leave without pay. No order as to costs. M. Y. H/135/Sr.P Appeal accepted.