1988 PLP (C (PLC(CS))

Ch. A. RAHMAN KHAN (MEMBER)‑‑The appellant, Mr. Muhammad Ijazul Haque Malik, ex‑Senior Auditor, Office of the Accountant‑General Punjab, Lahore, has come in appeal against the impugned order of his removal from service dated 1‑12‑1986.

2. The facts of the case are that the appellant joined the service in the year 1976 as Junior Auditor in the Office of the Accountant General, Punjab. He was promoted later as Senior Auditor with effect from 1‑7‑1983.

3. It was contended by the learned counsel for the appellant that on 3rd April, 1986, the appellant was transferred to J.M. Section in the same office but fell seriously ill. He joined his new office on 12th April, 1986 and submitted a medical certificate. His leave was later sanctioned by the appropriate authority for the duration of his sickness. He was issued a show‑cause notice No. Discipline/10‑939/ 1965, dated 4‑6‑1986 under Rule 5(1)(iii) of the Government Servants (Efficiency & Discipline) Rules, 1973, the extracts of which are given below: ‑ You were posted in J.M. Section vide office order No. Admn‑I/ P&T/3754, dated 3‑4‑1986 and these orders were got noted by you on 3‑4‑1986. You were required to join J.M. Section the next day i.e. 4‑4‑1986 but you joined that section on 12‑4‑1986 after 8 days. At that time the monthly account for 3/1986 was in hand. All the concerned auditors were directed to prepare the Classified Abstract, but you did not complete any of the following items of work of 3/1986, despite verbal and written direction of the Superintendent /J. M. Section. (1) Supply of G.O. vouchers to GAD Section. (2) Appropriation Audit Register. (3) Classified/ consolidated Abstract (16 Abstracts). (4) Post‑ Audit of pre‑audit bills. (5) Issue of expenditure statements. (6) Post audit of bills passed through computer cell. Resultantly incomplete Debt Head Abstract for 3/1986 was submitted to the TDH Section. (2) You were directed vide Memo. No.JM/965, dated 6‑6‑1986 to complete/clear the outstanding work relating to your seat but you flatly refused to receive the memo and used un-parliamentary language against the Superintendent /J. M. Section. You oftenly attended the office late and after marking your attendance in the attendance register slipped away from the office. You were directed to improve yourself and behave with your superiors politely, but you did not mend yourself. (3) Thus in view of the above, you are, therefore, charged with "Inefficiency" and "Misconduct" under Rule 3(c) and 3(b) of the Government Servants (E&D) Rules, 1973. You are, liable to the imposition of penalty of dismissal from service under Rule 4 (i) (b) (iv) ibid. In terms of Rule 5 (iii) ibid, it is not necessary to have an inquiry conducted through an Inquiry Officer or inquiry Committee. (4) Through this notice, you are directed to show cause within 14 days of receipt of this notice, under Rule (iii)(a) and (b) as to why the penalty specified above should not be imposed upon you. (5) In case you fail to show‑cause as directed above, action against you, will be taken ex parte. (6) You should also state whether you wish to be heard in person."

4. The appellant submitted his reply to the show‑cause notice dated 16‑6‑1986 and was also granted personal hearing by the Authorised Officer. He was finally removed from service vide the impugned order dated 1‑12‑1986.

5. The learned counsel for the appellant argued that the charges framed against the appellant as given in the show cause notice were rather vague and no details were provided. Although the appellant refuted all the charges but efforts were made by the competent authority to inquire into the circumstances of the case before taking his decision to proceed under Rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973. It was stressed by the learned counsel that the appellant had more than 11 years service and it was strange that on his transfer to J.M. Section he was found guilty on charges given out in the show‑cause notice without holding a formal enquiry. These charges were framed against him within a period of 50 days from the date of joining his new job whereas vide section 2.29 of "A Guide to performance Evaluation" of ACR the minimum period laid down to report on the efficiency/ suitability of a new incumbent is 90 days. It is a pity that he was not afforded the opportunity to prove his worth even for the minimum period laid down.

6. It was further submitted by the learned counsel for the appellant that it was indeed strange that when his leave of absence was sanctioned on the authority of the medical certificate, (a copy of which is available on record), why a charge was at all framed against the appellant. It clearly shows mala fides on the part of his superior officers particularly the Superintendent, J.M. Section. Secondly, in the show‑cause notice he was not provided the details of his absence or late arrival in the office so that the appellant could give his detailed reply in this respect. There were also no details provided when the appellant ever left the office without the information of the Section Incharge. He had never been either warned verbally or given a written warning in this respect.

7. As regards the charge of not preparing the Classified Abstract for the month of March, 1986, it was contended that this fact was brought to the notice of the Superintendent, J. M. Section on more than one occasion by the appellant personally that the related documents were found missing in the accounts in question about which he was never given clarification except to get annoyed on him unreasonably. It was further brought out by the learned counsel that it was indeed wrong that the Section Incharge ever gave the appellant any direction in writing in this respect. All this could be a subject of a full‑fledged inquiry which has not been held in this case. Furthermore, it was submitted that the work of completion of the Classified Abstract relating to the seat of the appellant had been lying in arrears for the last 4/5 months. It was not understood as to why this point was so much stressed as regards its clearance for the month of March, 1986 only.

8. It was submitted by the learned counsel for the appellant that in view of the rather shady way of handling this case which involved the career of the appellant, it would have been only appropriate to hold a full‑fledged enquiry so that the charges could be proved against him beyond any shadow of doubt. The appellant had a fairly long service of about 11 years to his credit and it was against the principle of natural justice that his case was dealt with under Rule 5(1)(iii) of the Government Servants (E&D) Rules, 1973. It was indeed a only sided story in which the version of the Superintendent, J. M. Section was accepted as a gospel truth. It was, therefore, strongly contended that the impugned order of removal from service be set aside.

9. The learned counsel for the State argued that it was the discretion of the competent authority to exercise his option whether to proceed against a civil servant under Rule 5(1)(iii) of the Government Servants (E&D) Rules, 1973 or not. In this case the competent authority decided to proceed under the relevant rules and found the appellant guilty of the charges levelled against him. It was mainly a matter of record that the charges against the appellant could be proved and, therefore, it was not considered necessary to hold an inquiry. The explanation given by the appellant in reply to the show‑cause notice was not accepted and, therefore, the competent authority decided to issue the impugned order after having given the opportunity of personal hearing. It is true that the appellant had about 11 years service but his misconduct and inefficiency in the new job in J.M. Section was so serious that action had to be taken against him. In fact the competent authority had shown leniency in his case and only ordered him to be removed from service rather than awarding the penalty of dismissal. The impugned order, therefore, is legal and may not be set aside.

10. We have heard both the parties and also perused the record carefully with the help of the learned counsel for the State. We are of the considered view that the appellant deserved a better deal in this case. The mere fact that a charge framed against the appellant for not joining his duty on transfer on the due date was false, goes to prove that everything was not right, to say the least. It was in the knowledge of the Superintendent, J. M. Section that the leave of the appellant was sanctioned on the basis of his illness for which a medical certificate was also produced. This attitude of the Superintendent, J.M. Section is unacceptable to us because he should not have hidden this fact at any cost. Also, in our opinion it would have been only fair that the appellant was given sufficient time to adjust himself in the new environment because this happened to be his first posting after his initial induction in the service. It would have been appropriate if his work was seen for a minimum period of 90 days vide Section 2.28 of "A Guide to Performance Evaluation: Besides, no details were provided in the show‑cause notice against the charge of attending the office late and slipping away without informing the Section In charge. The appellant did not have a reasonable chance to defend himself. All this betrays the state of unnecessary hurry on the part of the concerned officers to proceed against the appellant without a full‑fledged inquiry.

11. The upshot of the above discussion is that we accept the appeal and reinstate the appellant into service with full benefits but with no order as to costs. Ordered accordingly.

12. Parties to be informed. SYED ALLY MADAD SHAH, CHAIRMAN:‑‑I agree that the appeal be allowed with no order as to costs and the appellant be reinstated in service with full benefits. A.A. /392/Sr.F Appeal accepted.