1998 PLP 741 (SCMR)

CH. MUHAMMAD ARIF, J.

This petition under clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment dated 7-3-1996 made by the Federal Service Tribunal dismissing petitioner's appeal challenging order dated 29-10-1995 whereby the Appellate Authority had converted the major penalty of dismissal from service imposed on the petitioner vide order dated 9-6-1991 into that of removal from service.

2. The 'petitioner was working as Field Investigating Officer of the Narcotics Control Board at Attock in 1990. He received some information from Interpole Police against M/s. Mumtaz Abbasi and Afrahim Abbasi about their involvement in contraband drugs. They were kept under strict surveillance to the annoyance of Ch. Muhammad Afzal, S.H.O. Police Station Waris Khan, Rawalpindi who was friend of the said two agents. The said S.H.O. succeeded in the registration of a case against the petitioner at the instance of these persons under section 382/365, P.P.C. allegedly for snatching Rs.12 lac from Ashfaq Abbasi, an employee of Ehsanul Haq Abbasi. Petitioner was arrested in the case on 27-9-1990. Initially he was granted bail by the Illaqa Magistrate but later on the same was cancelled by the next higher forum. On appeal, the High Court again released him on bail on 26-1-1991. During the period of his incarceration in Jail, a show-cause notice was also issued to the petitioner on 7-11-1990. This notice was subsequently substituted with a charge-sheet dated 7-2-1991. Petitioner denied the charges contending that since the entire matter was pending consideration before the Civil and Criminal Courts, the departmental proceedings merit to be held in abeyance. However, the department proceeded with the case, appointed Mr. Mahmood Ahmad Butt, Group Leader, as Inquiry Officer who continued with the same and submitted report on 22-4-1991 holding him guilty of the charges. The Authorised Officer recommended his dismissal from service and accordingly the Competent Authority dismissed him from service on 9-6-1991. Petitioner's departmental appeal against this order of dismissal was disposed by the Appellate Authority vide letter dated 6-7-1992. He approached the Tribunal in appeal which was decided on 5-1-1993 when request for withdrawal was made reserving his right to move the competent Authority at appropriate time after disposal of the cases against him.

3. Subsequently, the petitioner was acquitted in the Criminal case and he made an appeal to the Secretary, Pakistan Narcotics Control Board, P.N.C.B. for short, seeking his reinstatement in service but the same was rejected on 5-4-1995. He again approached the Federal Service Tribunal and on 11-6-1995 the matter was remanded to the Appellate Authority to pass fresh orders after providing him an opportunity of hearing in person. It was after the remand that the Secretary, P.N.C.B. disposed it of on 29-10-1995 by converting the penalty of dismissal into one of removal from service. This order dated 29-10-1995 was made the subject-matter of the appeal before the Federal Service Tribunal which was dismissed vide the impugned order dated 7-3-1996 (incorrectly described as dated 18-3-1996). Para. 6 of the judgment, impugned in this petition, is couched in the following terms:-- "

6. As discussed in para. 3 above, the reduced penalty of removal from service has been imposed upon the appellant for absence from duty. Therefore, the only question for determination by us is whether the appellant was absent from the office and why? It is said that the appellant was not well and left the office on 29-8-1990. He was thereafter, advised bed rest by the doctor from 29-8-1990 to 4-9-1990, again from 5-9-1990 to 18-9-1990 and further from 19-9-1990 to 27-y-1990 or. account of suffering from illness. In support of his contention, the appellant has filed photocopy of three outdoor tickets of District Headquarters Hospital, Rawalpindi. The appellant who was present in the Court admitted that he did not submit these chits/so called medical certificates to the office immediately and submitted the same to the office alongwith an application for leave only after the issuance of charge-sheet, dated 7-2-1991. No such application is available on record and the department has categorically denied to have received any such application. However, a day after the close of arguments on 15th January, 1996 the appellant sent by registered post photo copy of his application dated 27-2-1991 said to have been submitted with the Secretary, P.N.C.B., Islamabad. The medical certificates are also said to have been sent to the office alongwith this petition. Though the department has denied to have received this application but this amounts to admission by the appellant that he remained absent from the office from 29-8-1990 till the date of application i.e. 27-2-1991. Therefore, the question whether the appellant was absent from the office stands proved by admission of the appellant himself. Now the second question is what were the circumstances which prevented him from attending the office and why could not he submit leave application or alleged medical chits to the office before. The foremost excuse for remaining absent from the office is the illness of the appellant for which first medical chit is shown to have been issued on 29-8-1990. These medical chits too so-called medical certificates apparently were issued by the Medical Officer, District Headquarters Hospital, Rawalpindi whereas the appellant was admittedly posted at Attock. Why such a certificate was not obtained from the doctor available at the place of posting and why this certificate was not submitted "to the office immediately" - why the appellant had been keeping this chit with him for more than 5 months? There was no explanation to it. These certificates appear to have been manoeuvered and do not inspire any confidence in us. The second excuse for remaining absent from the office is the arrest by Police on 27-9-1990. It is, however, admitted that the appellant was granted bail on 1-12-1990 which was later cancelled by the Additional District Judge on 7-1-1991. He was on bail from 1-12-1990 to 7-1-1991, why he did not report to the office during this period? Similarly on release by -the order of the High Court on 26-1-1991, he did not report for duty even thereafter or bother to make application for leave. The appellant moved application for leave for the first time on 27-2-1991 i.e. after about six months of his absence from the office. Narration of all these facts show that the appellant left the place of duty on 29-8-1990 without prior sanction of leave and did not make any application for leave etc. upto 27-2-1991 without any reasonable excuse. Though the admission of unauthorised absence did not require any further inquiry, the Department was fair enough to hold an inquiry into the charge of absence etc. for which a formal charge-sheet was served on the appellant on 7-2-1991. The appellant did not join the inquiry proceedings despite repeated notices from the Inquiry Officer on the plea that civil/criminal proceedings were going on and, therefore, the departmental proceedings should have been postponed. We do not find any substance in this contention of the appellant. The appellant should have joined the inquiry and adduced proper defence evidence in support of his plea. Is failure to join the inquiry proceedings supports the departmental stand that he was involved in litigation with the Police and others on his own and that the department had nothing to do with his arrest or any other civil/criminal proceedings that were initiated/conducted by or against the appellant. . He had been admittedly absent from a sensitive assignment for a long time and such an absence cannot be tolerated on capricious grounds."

4. Mr. Shah Abdur Rashid, Advocate Supreme Court has simply reiterated the same objections as were attended to by the Federal Service Tribunal in para. 6 of the impugned judgment, reproduced in the preceding paragraph. According to him, nothing would turn on the absence of the petitioner between 29-8-1990 and 27-9-1990 in that he was advised bed rest by the Doctor. However, he was not in a position to state that his absence as above was either preceded by appropriate order of the Competent Authority or succeeded by such order. Even the reasons detailed in para. 6 by the Federal Service Tribunal in relation to the failure on the part of the petitioner to obtain the requisite certificate from the Doctor available at the place of posting as also non- submission of the some other 'certificate' to the office immediately", have not been shown to be suffering from any factual inaccuracy whatsoever. The further observation that the petitioner applied for leave for the first time on 27-2-1991 i.e. after six months of his absence from office, was also not controverted by the learned counsel.

5. Learned counsel was of the view that in the presence of the observation by the Federal Service Tribunal that the penalty of removal from service "appears to be little excessive" and, therefore, the impugned order cannot be sustained. We are afraid even this argument does not advance petitioner's case a wee bit. It was at the appellate stage that petitioner's conduct in relation to his own involvement in unauthorised litigation with the Police was noticed resulting into bringing bad name to the Department as justification for the substitution of the penalty of dismissal from service with removal from service.

6. No other point was raised.

7. Not fining any force in this petition, the same is dismissed. A.A./A-34/S Leave refused.