1999 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER)‑‑‑‑This judgment will also dispose of the connected appeal No. 149(K)/96 filed by Mr. M. Inamul Haq, as most of the facts in both the cases are identical.

2. In brief, both the appellants were working as Operational Pilots in the Department of Plant Protection. Vide show‑cause notices issued separately, but on 4‑9‑1995, both the appellants were charged for inefficiency for not having a valid Commercial Pilot Licence and after receipt of their reply, both the appellants were removed from service vide orders dated 8‑7‑1996. After seeking the departmental remedy, these service appeals have been filed. 3.The respondent department has filed comments and we have listened to the arguments of the learned counsel for the parties.

4. The record shows that the appellant Mr. Jamil Akhtar was reportedly suffering from malignant hypertension and he was directed to appear before the Civil Aviation Medical Board and to get the Commercial Pilot Licence renewed but on his failure to appear before the Board and to get the expired Licence renewed, proceedings were initiated against him. In reply to the show‑cause notice dated 4‑9‑1995, he stated on 16‑9‑1995 that he was not at fault and that he had consulted the specified Cardiologist eleven times and had also appeared before the Medical Board but every time he was advised to undergo certain more tests to arrive at a conclusive opinion and, therefore, he explained his position of being vigilant. The record further shows that on the date when the show‑cause notice was being issued, i.e. 4‑9‑1995 the said appellant was medically examined and found fit for the renewal of the licence which was, subsequently, issued on 28‑9‑1995. The same was operative from September, 1995 to September, 1996. However, on the date he submitted his reply i.e. 16‑9‑1995, the renewed licence was not in his possession and, therefore, he could not refer the same in his reply. However, admittedly the appellant transmitted the copy of the licence by Fax to the department on its receipt. The final order of removal from service of the appellant Mr. Jamil Akhtar was passed on 8‑7‑1996 and on that date he was neither medically unfit to perform his duties nor could he be charged for not possessing a valid licence. Even otherwise, prior to 4‑9‑1995, the appellant was admittedly under medical treatment and this would never amount to inefficiency to justify the action for misconduct. Physical disability may lead to retirement from service on medical grounds but it cannot operate as a justification for imposing the penalty. Punishment is always awarded for any intentional omission or commission based on guilty mind. In the case of the appellant, there is neither any proof of guilty mindedness nor did he perform any functions to the prejudice of the interest of the respondent department. Sickness is an act of God and nobody can be held responsible for any misconduct on the ground of sickness only. The appellant has been charged for inefficiency which is a positive term indicating lack of competence or lack of interest. Instead thereof, the appellant could be said to have been ceased to be efficient on the ground of his physical disability but in such a case, he could not have been penalised by the imposition of punishment of removal from service, more particularly when the appellant had been declared to be fit by a competent Medical Board and had been allowed the facility of renewal of licence. 'The disciplinary proceedings should have been terminated as he was not found responsible for any fault of non‑appearance before any Medical Board or lack of interest to get the licence renewed. In any case, the appellant duly possessed a valid licence on the date when the impugned order was passed and admittedly this was within the knowledge of the respondent department. We, therefore, accept the appeal No. 143(K)/96 filed by Mr. Jamil Akhtar, set aside the impugned order dated 8‑7‑1996 and direct that the appellant may be reinstated in service on production of a valid licence, with all consequential benefits.

5. So far as the appeal of Mr. M. Inamul Haq is concerned, we did not get any appropriate assistance from both sides to arrive at a concrete conclusion. The said appellant has filed a reply on 3‑10‑1995 in response to the show‑cause notice dated 4‑9‑1995 but he does not mention whether he has consulted any Physician to probe about the abnormality of the ECG nor does he mention that he was declared medically fit by the concerned Board. There is no mention by the said appellant about the existence of a valid Commercial Pilot Licence on the date of reply i.e. 3‑10‑1995, nor has he submitted a copy of such licence till today. The learned counsel for the appellant has referred to a letter dated 12‑1‑1995 (annexed to the objections filed by the respondent‑department) wherein it has been stated that the appellant Mr Inamul Haq was in possession of a valid licence and the learned counsel also stated that the said appellant was in possession of such a licence from 1995 till date. However, a copy of such licence/s was not available to be placed on file. In the reply and the departmental appeal, the said appellant has, instead of explaining his position, mainly stressed the non‑availability of fuel with the department whereby he was unable to complete the required flying hours to become eligible for the revalidation of licence. To this allegation, the representative of the respondent department stated that fuel was certainly available and the department was in need of services of the Operational Pilots but whenever he was asked to perform duties, he preferred to abstain on various pretexts. It was also stated that completion of the flying hours was not the obligation of the respondent department and the appellant or any candidate for Commercial Pilot Licence has to complete the said required hours of flying independently from other personal sources. As stated earlier, in this judgment, the said appellant was also charged for inefficiency, which is an intentional omission or commission with mens rea, and so he could not have been charged on this account. At the most, he "ceased to be inefficient due to non‑availability of the renewed licence. This was an infirmity or disability and not an offence. So punishment was not justified, however, the services of the said appellant could have been dispensed with as retirement in accordance with the police instructions in this regard. Thus, we are of the opinion that the punishment of removal from service was too excessive and uncalled for. However, due to the non‑availability of the required record and the contradictor, statements, we do not think it appropriate to give a final adjudication Consequently we remand this case to the Authority for examining the entire record and to pass appropriate order as stated above and after providing opportunity of being heard to the appellant. No order is made for costs. H.B.T./199/ST/F. Order accordingly.