2004 PLP (C (PLC(CS))

NAZAR MUHAMMAD SHAIKH (MEMBER). ‑‑‑Facts of the case are that the appellant inducted in Watch and Ward Department of Karachi Port Trust (KPT) through normal drill of selection and was promoted to the post of Superintendent, Watch and Ward in B-19. He was subsequently confirmed on the said post. KPT Board vide its Resolution No. 479 decided to initiate disciplinary proceedings against the appellant who was issued a charge‑sheet on 12‑11‑1998 wherein he was charged for misconduct for the following allegations detailed in the statement of allegations which reads as under:‑‑ "STATEMENT OF ALLEGATIONS The Board vide its Resolution No.87 dated 30‑7‑1998 sanctioned transfer/posting of Maj. (Retd.) Sultan Sikandar Noon, OSD (BPS‑19) as Manager Personnel (PBS‑19) with immediate effect. Necessary Office order was issued vide GM(A)'s No. GM(A)/PS/96/131 dated 30‑7‑1998. Copy was endorsed to Maj. (Retd.) Sultan Sikandar Noon for compliance by Courier Service which was acknowledged on 31‑7‑1998 but he did not comply with and did not report for duty even on 1‑8‑1998. He was again directed vide GM(A)'s letter No. MP/E/48/2088 dated 11‑8‑1998 to assume the charge of the post of Manager Personnel immediately failing which disciplinary action would be initiated against him as per E&D Rules. He has not yet reported for duty. He is thus absenting himself from his duty unauthorisedly. His act of unauthorized absence from duty w.e.f. 1‑8‑1998 and non‑compliance of lawful orders contained in General Manager (A)'s Office order No.GM(A)/PS/96/131 dated 30‑7‑1998 and letter No.MP/E/48/2088 dated 11‑8‑1998 constitute `Misconduct' and he is, therefore, charged for the same." Appellant in response to the charge‑sheet denied the allegations and stated that since he was inducted specially for Watch and Ward Department and had acquired long experience in that department and, as such, he was substantive holder of the post of Superintendent Watch and Ward therefore that he should be used only there. He was also transferred and .posted as Manager Personnel on 30‑7‑1998 which order he did not comply. Chief Engineer (Elect. and Mech.), KPT was appointed Inquiry Officer vide KPT's letter dated 15‑4‑1999 to investigate the charges levelled against the appellant. Appellant was advised by the KPT through various written communications to record his statement before the Inquiry Officer but he failed to do so. These communications asking him to appear before the Inquiry Officer are dated 10‑6‑1999, 28‑10‑1999, 17‑12‑1999, 23‑12‑1999, 29‑12‑1999 and it was in April, 2000 i.e. after a delay of almost one year before the appellant could be persuaded to appear before the Inquiry Officer and record his statement. The Inquiry Officer after considering all the record and statement of the appellant, gave his conclusion as under:‑‑ "CONCLUSION In view of the above, following conclusion is offered: (a) That charge 'a' for unauthorized absence w.e.f. 1‑8‑1998 has been investigated and substantiated with evidences produced during enquiry. The charge that he remained absent from duty has been checked thoroughly and found that the officer left Karachi (his station of duty) without permission. This clearly proves that he remained absent from his place of duty from 31‑7‑1998 to 5‑10‑1998 therefore, the charge `a' is proved. (b) The charge `b' of non‑compliance of lawful orders has also been investigated and it is found that the order has been complied by Maj (Recd.) Sultan Sikandar Noon but late i.e. on 5‑10‑1998 instead of 1‑8‑1998. Appellant was finally served with a Show‑Cause Notice vide KPT's letter No. IRE&W/G‑I/PO(VI)/2424, dated 12‑6‑2000 which reads:‑‑ "KARACHI PORT TRUST No. IRE&W/G‑I/PA(VI) 2424 Dated‑12th June, 2000. From Chairman Karachi Port Trust To Maj (Retd) Sultan Sikandar Noon Manager Personnel (Now O.S.D.) K.P.T. Sub: SHOW‑CAUSE NOTICE Under the office letter (REW/G/‑I/PO(IV) 7841 dated 12‑11‑1998 you were charge sheeted for the following charges: "Misconduct for your:‑‑ (a) Continued unauthorized absence from duty with effect from 1‑8‑1998. (b) Non‑compliance of lawful orders contained in Office order No.GM(A)/PS/96/131, dated 30‑7‑1998 and letter No.MP/E/48/2088, dated 11‑8‑1998." ' The enquiry proceedings were conducted in accordance with the provision of the KPT Officers and Servant (Efficiency and Discipline) Rules and the Inquiry Officer has found you guilty of the above charges. You are hereby required to SHOW CAUSE within seven days from the receipt of this notice why you should not be dismissed from KPT service. A copy of the enquiry report is enclosed. Please acknowledge receipt and take notice, that if no reply is received, action will be taken ex parte. SIGNATURE DESIGNATION CHAIRMAN KARACHI PORT TRUST" Appellant in response to the show‑cause notice denied the allegations and alleged that the Chairman, KPT had turned against him because of personal grudge and also made unfounded allegations against other officers i.e. General Manager (Operation) and Rear Admiral Mumtaz Wali. After considering inquiry proceedings and reply of the appellant to the show‑cause notice respondents imposed major penalty of compulsory retirement. He filed Departmental Appeal dated 2‑7‑2000 which was not responded and consequently he has filed this appeal before the Tribunal on 17‑11‑2000 under section 4 read with section 2‑A of the Service Tribunals Act, 1973.

2. The learned counsel for appellant strenuously argued the appeal and stated that the proceedings against the appellant were void and unlawful as the proceedings suffer from many defects. The learned counsel stated that there were two allegations levelled against the appellant i.e. first relating to his unauthorized absence, and second relating to non‑compliance of respondents' order whereby he was transferred from the post of Superintendent Watch and Ward to that of Manager Personnel. As regards first charge he stated that the inquiry conducted was defective and in violation of the prescribed rules and that it was full of deficiencies as it was conducted in question‑answer form and formal statement was not recorded and no witness was examined in' appellant's presence and, therefore, the impugned order was void and in support he cited‑ ruling reported in 1993 PLC (C.S.) 1140. He further stated that the appellant finally complied with the transfer order in October, 1998. He further stated‑ that appellant's statement regarding allegations against other officers were not contested or challenged by the respondents. Learned counsel continuing his arguments stated that the impugned order whereby appellant has been compulsorily retired from service makes reference to advance entries in his ACR Record which was also one of the cause of his compulsory retirement from service. He stated that question of adverse ACRs has not been included in the charge‑sheet and, as such, it cannot be made as one of the basis for imposing major penalty of compulsory retirement. Learned counsel for the appellant also referred to the Prime Minister's Secretariat (Public Wing) U.O. No. 103896/3307 dated 28‑7‑1998 whereby compliance of PM's directive" dated 16‑5‑1998 were sought from the Ministry of Communication regarding posting of the appellant against substantive post i.e. Superintendent Watch and Ward. PM's Secretariat said letter is reproduced as under:‑‑ "MOST IMMEDIATE Prime Minister's Secretariat (Public) Islamabad SUB: REQUEST OF MAJOR (RETD.) SULTAN SIKANDAR NOON, OSD, KPT, FOR POSTING AGAINST SUBSTANTIAL POST I.E. SUPERINTENDENT WATCH .AND WARD. Reference this Secretariat U.O. of even number dated 16‑5‑1998 and Ministry of Communication's letter No.4(1)/98‑P&S.I dated 23‑5‑1998 on the subject noted above.

2. It will be appreciated that a period of more that two months has since passed but so far implementation report on the above referred directive has not been received. The competent authority has therefore taken a serious view of this situation and directed that Maj. (Retd.) Sultan Sikandar Noon, may immediately be reinstated and posted against his original post, without any further delay.

3. It is requested that the above orders of the competent authority may please be implemented and report furnished to this Secretariat within a week positively. (Sd.) Abdur Rauf Chaudhry Joint Secretary (PM) Secretary, Ministry of Communications, Islamabad. PM's Sectt: (Public) UO No.103896/3307 dated 28‑7‑1998 Copy forwarded for information/ similar action to: Chairman, Karachi Post Trust, Karachi Major (Retd) Sultan Sikandar Noon Supdt. Watch and Ward. KPT, Karachi." Learned counsel for the appellant further stated that the appellant was not afforded personal hearing and summed up his arguments by stating that the imposition of major penalty of compulsory retirement on the appellant was too harsh and not commensurate with the gravity of the allegations levelled against him.

3. The learned counsel for appellant also relied on EST's judgment passed in Appeal No.1157(K)1997 in case of Tajuddin v. Chairman, Pakistan Insurance Co. and others where the impugned dismissal order, from service was held as illegal in view of absence of inquiry and non- affording personal hearing.

4. Learned counsel for the respondent opposed the appeal and stated that the appellant had been afforded full opportunity to defend the allegations before the Inquiry Officer and his final reply to the show- cause notice. He further stated that appellant had only wilfully disobeyed a lawful order of his transfer from one position to another and that on this ground also his appeal is liable to be dismissed. He further stated that the appellant remained absent unauthorisedly which also deserves punishment and in support cited the case of Sikandar Ali v. Sindh Service Tribunal and others reported in 1981 SCMR 263 where petitioner was dismissed from service for unauthorized absence. He also cited rulings reported in 1996 SCMR 230, 1997 SCMR 1543 and 1981 SCMR

81. He further contended that the allegations against the appellant had been proved through due prescribed process where appellant was afforded full opportunity to vindicate his position. He further stated that the appellant did not want to leave the post of Superintendent Watch and Ward despite many complaints against him for corruption and other misdeeds. He stated that his ACRs Record was full of adverse entries which had been followed with warnings but the appellant had shown no improvement in his performance. He further stated that the appellant demonstrated total lack of discipline and made baseless allegations against the Chairman and his other colleagues.

5. We have carefully considered the arguments submitted by the learned counsel from both sides and also scanned the record and the citations presented by the parties.

6. The proceedings against the appellant started as a result of non compliance of transfer order of the appellant from the post of Superintendent Watch and Ward to the post of Manager Personnel through KPT's order dated 30‑7‑1998. Appellant neither reported for duty at his new place of posting i.e. Manager Personnel and also did not attend to his duty as Superintendent Watch and Ward which tantamounts to his unauthorized absence from duties. He was repeatedly asked in writing to report for duty as Manager Personnel but he did not comply. Respondents issued appropriate charge‑sheet and appointed Chief Engineer, Mechanical and Electrical as Inquiry Officer. It took Inquiry Officer almost one year to force the appellant to appear for the inquiry. Inquiry Officer partially exonerated him from the charge of non compliance of lawful order of his transfer but he remarked that this transfer order was complied belatedly i.e. after a delay of two months. In fact it is partial exoneration from this allegation because as it is with a rider that the appellant delayed the implementation of his transfer order. Appellant was, however, held guilty for his unauthorized absence.

7. Appellant is a retired officer of Pakistan Army and being an ex- senior officer of the disciplined force as Pakistan Army he should have shown exemplary conduct by his behaviour, demeanor and actions. The wilful disregard of his transfer is absolutely not in conformity with the teachings and parameters which are synonymous of Pakistan Army and such exhibition of indiscipline does not speak very meritoriously of the appellant's conduct as an ex‑Army Officer. Belonging once to the Army, he should have not wasted a single day in complying with the transfers order. Under rules, a civil servant is bound to serve anywhere posted. Had he been in Army he would not dared to delay compliance of his transfer from one unit to another and if he had done so he would have been court-martialed and would have been disgracefully removed from service. We do not see any reason why such disciplined conduct should not be demonstrated by the appellant while working in the civilian side. It appears that he has total contempt and disdain for civilian administrative set up which attitude is highly condemanable and cannot be condoned in any way. We consider that both these charges have fully been established by the Inquiry Report. The other demonstration of the Appellant's ill‑behaviour and ill‑discipline is evident from the repeated communications to appear before the Inquiry Officer. There is another example of grave misconduct which also deserves to be taken serious notice of i.e. appellant managed to secure Prime Minister's directive for his posting as Superintendent Watch & Ward (reproduced earlier) which clearly testifies to the fact that the appellant had political affiliations and he exerted political pressure and influence and got the directive from the Prime Minister for his posting which in itself is a gross misconduct under rules.

8. As regards, appellant's objections to the inquiry proceedings do not hold any good in view of undeniable fact of delayed compliance of his transfer orders and unauthorized absence which hardly warranted any inquiry. If inquiry proceedings suffered from any minor technicalities it did not cause any prejudice to the appellant's case though the Inquiry Officer has submitted a detailed and exhaustive report which meets the requirements of ends of justice. There are also numerous rulings of the Hon'ble Supreme Court that minor technicalities shall not affect the outcome of the E&D proceedings.

9. We however, do not subscribe to the respondent's contention that his ACR Record was very adverse and full of warnings and that he enjoyed a reputation of being corrupt officer. Since these allegations were not mentioned in the charge‑sheet or show‑cause notice it may and should not form part of the impugned order.

10. However, keeping in view the report of the Inquiry Officer we find no merit in the appeal. In fact in exercise of powers conferred under section 5(1) of the Service Tribunals Act, 1973, we would have, much like to modify the impugned order and convert it into dismissal from service but are restrained by Hon'ble Supreme Court's ruling reported in 1999 SCMR

122. The appeal is dismissed and impugned order is upheld.

11. No order as to costs. Parties be informed accordingly. M.H./226/FST Appeal dismissed.