2005 PLP (C (PLC(CS))

Mr. Rizwan Mustafa, S/o Ahmed Mujtaba Khan, (OG-2433-E), Cementation Technician, R-339, Block 4-A Gulshan-e-Iqbal, Karachi." Thereafter, vide letter dated 23-11-1999, it was written to the appellant to appear before Mr. Muzaffar Ali Khan, who was appointed as Enquiry Officer at Islamabad. The charge-sheet issued to the appellant was accompanied with the statement of allegations containing only one, sentence viz. "You were unauthorisedly and wilfully absent from your duty since 19th October, 1999". The appellant replied to the charge-sheet and this reply is available with the memo. of appeal, denying all the allegations against him. The respondents, through an Enquiry, claimed to have been conducted by the Inquiry Officer against the appellant, was admittedly held in his absence and the inquiry report is appended with the memo. of appeal as well. Thereafter, on 15-12-1999, the final show cause notice was issued against the appellant to explain as to why he may not be dismissed from service of the Company on account of misconduct involving unauthorised and wilful absence from duty since 19-10-1999. The appellant has also replied to this final show-cause notice on 23-12-1999.

3. The respondents so-called inquiry into the alleged absence from duty constituting misconduct, as claimed by the respondents, finally culminated into the dismissal of appellant from service and the order of dismissal dated 9-2-2000 is reproduced hereunder:-- "No. AP0306-646-D/OG-2433-E OIL & GAS DEVELOPMENT COMPANY LTD. (PERSONNEL DEPARTMENT) HEAD OFFICE ISLAMABAD Dated: 9-2-2000 Mr. Rizwan Mustafa (OG-2433-E), Cementation Technician is hereby dismissed from the service of OGDCL, w.e.f 19-10-1999 on account of unauthorised absent from duty. He ceases to be on the rolls of the Company from the date of dismissal i.e. 19-10-1999. He is not entitled to any dues/benefits. This issues with the approval of the competent authority. (Sd.) (ISHAQ RASHEED ROOMI) CHIEF PERSONNEL OFFICER (D) Mr. Rizwan Mustafa, S/o Ahmed Mujtaba Khan, (OG-2433-E), Ex, Cementation Technician R-339, Block 4-A, Gulshan-e-Iqbal, Karachi."

4. The appellant challenged his dismissal from service through a departmental appeal dated 13-3-2000, which was not responded and hence the appellant filed this appeal on 30-6-2000 before this Tribunal with a prayer that the dismissal order dated 9-2-2000 passed by the respondents against the appellant may be set aside and that the appellant may be reinstated in service with all consequential benefits.

5. We, have heard the learned counsel for the appellant at length and learned counsel for the respondents. We have perused the appeal file containing all the documents including the memo. of appeal and the comments, filed by the respondents Nos.1 and 2 only one day earlier to the final date of arguments viz: 20-3-2003, which were received despite the fact that on account of failure of the respondents to file comments, their side was closed. Resultantly, coupled with the filing of the comments, the respondents have failed to produce any documents in support of their bare comments. It has been vehemently contended on behalf of the appellant that despite applications for casual leave followed by application for leave on medical grounds, the same were not heeded to by the respondents in spite of the fact that earned leave was available to the credit of appellant. It is further added that initially, the appellant was allowed casual leave, but his application for extension of the same was not heeded to and the letter dated 11-12-1999 shows that Chief Personnel Officer had received both leave applications dated 10-11-1999 and 30-11-1999 yet, no decision was taken in respect of both these leave applications by the Chief Personnel Officer. The learned counsel has further contended that the Chief Personnel Officer could forward these leave applications of the appellant to the concerned department if he was not competent to take action, but this has not been done. Finally, it has been contended by the learned counsel for the appellant that it was incumbent upon the respondents, in the first instance, to make a decision in respect of the extension of leave of the appellant having applied on medical grounds and thereafter they could decide about initiating an inquiry against, the appellant. So far the conduct of the inquiry is concerned, the learned counsel has vehemently attached the same by raising initial objection that an ex parte inquiry has been conducted against the, appellant at Islamabad, when the appellant was himself lying sick at Karachi and admittedly no decision had been taken in respect of leave applications of the appellant. It has further been asserted that neither any witness was examined during the course of inquiry nor inquiry was conducted in proper and legal manner. The learned counsel has relied upon the following case-law:-- (1) PLD 1979 Lahore 690, (2) PLD 1973 Supreme Court 236; (3) PLD 1987 Supreme Court 447, (4) 1985 SCMR 1178 and (5) 1986 SCMR 962.

6. We have also heard the learned counsel for the respondents who has tried to defend the action taken against the appellant by the respondents. It has been contended by the learned counsel for the respondents that in the event of non-acceptance of leave, the absence of the appellant for the period was wilful and unjustified. The learned counsel has further added that the appellant, despite having knowledge about holding of inquiry against him and receipt of the notice in this respect, did not participate in the inquiry wilfully. It has been further stressed by the learned counsel for the respondents that the report of Enquiry Officer is correct and thereby, as per contentions of the learned counsel, the action taken against the appellant is roper and according to law.

7. We have considered the arguments advanced on behalf of parties and perused the appeal file. We have also considered the authorities, produced by learned counsel for the appellant in support of his arguments. The main and the only ground, mentioned in the order of dismissal from service passed against, the appellant is on account of his unauthorized absence from duty. This order of dismissal was issued on. 9-2-2000, but it has been put into effect from back date viz. 19-10-1999 thereby giving retrospective effect the dismissal order. The other facts of the appeal show that in the first instance, 'vide order dated 9-8-1999, available at page 25 of the appeal file, the appellant under the cover of "Movement Order" was placed on tour duty w.e.f. 10-8-1999 till completion of his assignment at UCH Gas Field; where after the appellant was posted as Assistant Marketing Officer in the Regional Office, Karachi. The next order dated 9-9-1999. available at page 27, shows that the posting of the appellant as Assistant Marketing Officer (RG-1) was re-designated, without his notice as Cementation Technician in Well Services Department with immediate effect, without change in his pay and pay scale and at the same time, the appellant was ordered to be transferred from Marketing Cell, Karachi to Rig-307 Burzi Well No. 1 along with the post. The appellant, thus, was put manifestly in discriminatory position by re-designing his post of Assistant Marketing Officer to that of Cementation Technician, without proper process and after his field assignment on tour at UCH Gas Field, he was immediately transferred to Burzi Well No. 1 also a field duty in far flung area. The leave applications of the appellant dated 10-I1-1999 and 30-11-1999 duly supported by medical certificates, did not bear any fruit despite availability of leave to the credit of appellant. Even an express telegram, sent by the wife of appellant that the appellant was lying sick in the bed, failed to move the respondents. Instead of making any decision in respect of repeated leave applications of the appellant and a telegram from his wife, the respondents retaliated by way of framing a charge-sheet dated 13-11-1999 against the appellant and ordering an inquiry against the appellant. The appellant, who was admittedly available at Karachi claiming to be sick, was ordered to face an inquiry before the Enquiry Officer at Islamabad: The charge-sheet issued against the appellant contains a warning to the appellant to submit his defence statement within seven days from the date of the receipt of charge-sheet failing which further disciplinary proceedings were threatened to be initiated against the appellant. Likewise, the final show-cause notice also contains a direction to the appellant to reply the same within seven days from the date of the receipt of the notice. The appellant, vide his reply dated 23-12-1999, has forwarded his response to the final show-cause notice wherein he has raised number of objections and apprehensions in respect of the proposed inquiry against him. The above narration of facts would reflect the discriminatory approach against the appellant even before conducting disciplinary proceedings.

8. Prior to this, the Enquiry Officer completed the inquiry and formulated his report, which is available with the appeal file. In para 6 of the enquiry report, it is admitted that five days causal leave w.e.f. 13-10-1999 to 17-10-1999 was granted in favour of the appellant on account of illness of his wife. In the next para. No.7 of the inquiry report it is admitted that immediately after expiry of casual leave on 17-10-1999, the appellant was relieved from Marketing Division, Regional Office, Karachi to Rig-307 on 18-10-1999 with advice to report to Operation Manager of Burzi Well No.1. This shows that despite the knowledge about the illness of the wife of appellant for which casual leave was allowed to him from 13-10-1999 to 17-10-1999, the respondents relieved the appellant from Karachi by transferring him to Burzi well No.1 on 18-10-1999. Para. 9 of the inquiry report admits that although the appellant was relieved from Karachi on 18-10-1999 thereafter a telegram dated 27-10-1999 was received from the wife of appellant stating that the appellant was confined to bed and sick. The same para of the inquiry report viz: 9(b) further admits that receipt of a fax message from the appellant dated 22-9-1999 requesting the Field Manager, UCH Gas Field in respect of amending the relieving order as he was availing joining period at Karachi. Thus it is proved that appellant had applied for extension of leave and then applied for medical leave, but yet no decision was taken in respect of the leave application and instead he was served with a charge-sheet for having remained absent wilfully since 19-10-1999. Para 10(a) of the inquiry report shows that the respondent immediately retaliated against the appellant by stopping his salary vide order dated 5-11-1999. Para 10(b) of the inquiry report contains the fact that an express telegram was sent to the appellant to report at Burzi Well No.1 forthwith, but not later than three days else disciplinary proceedings would be initiated against him. All these facts admitted by the Enquiry Officer in his inquiry report show that instead of a decision in respect of the leave applications of the appellant, he was firstly meted out with harsh treatment of stoppage of his salary and then he was threatened through express telegram that in the event of his not reaching the place of duty, the appellant would face disciplinary proceedings. This attitude of the respondents show that they were pre determined to take action against the appellant and in fact, the appellant has been punished by stoppage of his salary before even holding the inquiry or deciding the fate of his leave applications. It will be further worthwhile to reproduce the concluding paras of the inquiry report viz: paras 13, 14, 15, 16, 17 and 18 as under:-- "

13. The inquiry proceedings were held in absence of Mr. Rizwan Mustafa, (OG-2433-E) Cementation Technician. I have gone the relevant records provided by the Production Department. From the perusal of the records, I have come to the conclusion that the charge levelled against Mr. Rizwan Mustafa (OG-2433-E) Cementation Technician are correct and duly supported with documentary evidences.

14. Mr. Rizwan Mustafa, (OG-2433-E) Cementation Technician has not appeared before the undersigned for the purpose inquiry on his due date and uptill now. He has however, sent defense statement dated 25-11-1999 (Flag "M").

15. The undersigned has also examined his defence statement.

16. The charge of his unauthorized/wilfull absence from duty since 19-10-1999 is proved.

17. For the foregoing examination and analysis of the case, the undersigned see no weightage in his defense statement and therefore, found him guilty of the charge.

18. Submitted to the AGM (Production)/Authorised Officer for his perusal and further disposal at his end as per ODGCL Service (E&D) Regulations, 1994, please."

9. It is crystal clear from the perusal of the inquiry report that it held in absence of the appellant and in an ex parte manner. It is also further evident that no witness was examined by the Enquiry Officer. Despite these lacunas the respondents have proceeded to dismiss the appellant from service, which is against the principles of law, justice and fair play as no major penalty or punishment can be awarded, without holding an independent inquiry with proper opportunity of defence to the accused officer. It is also mandatory that during the inquiry, the accused officer must be given a proper and full chance for his defence. We find that none of these mandatory conditions have been observed by the respondents before passing the dismissal order. We are constrained to observe that the respondents have not treated the appellant in humane manner much less in the legal manner. The appellant, who himself and also his wife had been admittedly craving for grant of leave to the appellant but instead of deciding the leave applications, the same were returned unceremoniously and without any decision to the appellant. This shows that the appellant, who had rendered more than ten years service with the respondents was meted out with manifestly harsh and unjust treatment. There are no other allegations of lack of efficiency, negligence or lack of performance on the part of the appellant. The only guilt of the appellant for suffering such harsh treatment is stated to be his applications for leave, which was a right, as admittedly the appellant was having earned leave at his credit. Besides, medical leave cannot be refused unless there are sound and valid grounds for rejecting the same. But in the instant case, we find that the appellant, who was initially "railed casual leave for five days and was refused extension despite the tact that his wife was ailing in the first instance and .thereafter, the appellant was confronted with sickness of his child for which he forwarded number of certificates to the respondents. Even the medical certificates in support of the permanent sickness of the appellant filed to move the respondents and quite contrary to the established norms of justice and fair play, the respondents proceeded to charge-sheet the appellant and then through an ex parte inquiry, inflicted the most harsh and cruel punishment of dismissal from service. Looking to the above facts and circumstances of the case, we are not inclined to subscribe to such treatment, as has been meted out to the appellant by the respondents.

10. Hence for all the above discussions and for the reasons given above, we find that the inquiry against the appellant has not been held in just and proper manner inasmuch as the same has been held in an ex parte manner, without affording any opportunity of defence to the appellant. Consequently, any punishment inflicted upon the appellant as a consequence of such unfair, irregular and ex parte manner, cannot be defended at any cost. As such, we allow this appeal and set aside the order of dismissal of the appellant dated 9-2-2000 and further order that the appellant be reinstated in his service forthwith with all the consequential benefits, provided the appellant has not gainfully served elsewhere during the period he was out of job, for which the appellant will have to satisfy the respondents through proper proof. We further order that decision must be taken in respect of the leave applications of the appellant, which may be treated and decided as per leave rules, considering the availability of the leave to the credit of the appellant, without prejudicing the other conclusions of this appeal.

11. The appeal is allowed with costs, which will be borne by the respondents. Copy of this judgment be forwarded to all the concerned forthwith. H.B.T./57/FST Appeal allowed.