1996 PLP (C (PLC(CS))

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑Petitioner seeks leave to appeal against the order dated 6‑12‑1994 passed by the N.‑W.F.P: Service Tribunal, Peshawar, whereby the appeal filed by him for the annulment of orders of respondent No. 1, dated 30‑3‑1993 and 28‑12‑1993 was dismissed.

2. The petitioner, who was working as Chief Inspector, Government Technical Training Centre, Peshawar, was transferred vide order dated 30‑5‑1992 as Chief Instructor, Technical Training Centre, Mansehra. On the representation of the petitioner to respondent No. 2 for cancellation of his transfer orders partially on the ground that his parents and wife were away to perform Hajj and that being none else to look after his children, the orders were held in abeyance till 30‑6‑1992. Thereafter, he applied for Medical Leave on the ground that "during the period of petitioner's deferment of ‑transfer he met with an accident receiving serious injuries on his legs and chest and remained as anti outdoor patient in the Lady Reading Hospital, Peshawar, (underlining is ours for the sake of emphasis). Thereupon, the respondent called for his explanation for having ignored to join at his new place of posting which was furnished by him. The explanation furnished by the petitioner was not found satisfactory, therefore, respondent No. 1 suspended him from service vide his orders dated 30‑9‑1992 whereas respondent No. 2 charge‑sheeted him on 5‑10‑1992 on the ground of misconduct for his negligence to report at the place of his new posting. Firstly, Syed Halim Shah, Principal, Women Technical Training Centre, Peshawar and then Arbab Shah Rukh, the then Deputy Secretary (Industries, Commerce, Mineral Development Labour and Transport) were appointed by respondent No. 2 as Enquiry Officers. On receipt of Enquiry Report of Arbab Shah Rukh, the petitioner was served with a show‑cause notice. The grievance of the petitioner expressed before the Service Tribunal and reiterated before us by Mr. Shahzad Akbar, learned counsel appearing on his behalf is that in order to furnish reply to the show‑cause notice the petitioner "requested for supply of some documents" which was, however, turned down and that the petitioner was constrained to put in his reply without the perusal of aid of those documents on account of which he had been prejudiced in his defence. After considering his reply the petitioner was ultimately "re‑instated but was simultaneously punished by stoppage of his two annual increments vide order dated 30‑3‑1993". He represented against his punishment, which was also rejected on 28‑12‑1993. The petitioner challenged the aforesaid two orders before the Service Tribunal on the grounds, firstly, that he was not provided with the requisite documents to enable him to meet the case against him and, secondly, that respondent No. 2 had been acting mala fide in the petitioner's case.

3. While conceding to the submission made before the Tribunal that if the respondent had any doubt qua the authenticity of his illness they could have referred him for medical examination by the Standing Medical Board, it was observed that the petitioner had not been able to account for the period of his absence from 7‑7‑1992 to 30‑9‑1992 barring the period from 12‑9‑1992 to 25‑9‑1992. The assertion of lack of bona fides was repelled on the ground that had the respondents been acting mala fide they would not have imposed minor penalty Besides, the Tribunal also noted that the petitioner in the course of personal hearing had accepted "the advertent or inadvertent omission and had pleaded for lenient view due to which the Authorised Officer taking the view had decided to impose minor penalty of stoppage of two annual increments". The Tribunal further held the appeal to be incompetent with reference to section 4(b)(ii) of the N.‑W.F.P. Service Tribunals Act (I of 1.974) and noticed no legal infirmity in the conduct of inquiry proceedings under the N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, against the petitioner and resultantly dismissed his appeal.

4. The learned counsel for the petitioner had reiterated before us the contentions, firstly, that the petitioner had been treated in the proceedings in violation of Article 4 of the Constitution; secondly, that the respondents had been acting mala fide while proceeding against him; and, thirdly, that the Tribunal had erred to hold that appeal against minor penalty of stoppage of two increments was not competent.

5. The plea of mala fide taken up before the Service Tribunal was duly considered and was repelled. We find that no material was either urged of substantiated before the Tribunal in support of the plea of mala fides. In Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151) it has been observed that allegations of mala fide though easy to level are difficult to prove and the onus lay heavily on the petitioner. In the instant case, petitioner has utterly failed to discharge this burden.

6. Undoubtedly proviso (b)(ii) to section 4 of the N.‑W.F.P. Service Tribunals Act (I of 1974) (hereinafter called as the Act) places a bar on the right of appeal in the event of imposition of penalty on a civil servant. A closer reading of the proviso would, however, reveal that such a bar would not be operative on a ground other than the one having reference to quantum of punishment determined by the departmental authority. Such an order would be appealable before the Tribunal for being illegal or without jurisdiction.

7. We have, however, decided to defer the proposition for a closer scrutiny to another appropriate occasion, in that, this petition can be disposed of on merits. The grievance of the petitioner, as stated earlier, was that he had not been provided with copies of certain requisite documents before putting in reply to the show‑cause notice, which had vitiated the impugned order. The words "give him a reasonable opportunity of showing cause. against that action" occurring in rule 5(3)(b) of the North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, .1973, or similar phraseology employed in the context of inquiries in disciplinary matters have been analysed by this Court, inter alia, in the case of Dawood Cotton Mills Limited v. Guftar Shah and another (PLD 1981 SC 225). After a great deal of discussion and making reference to the law laid down in The High Commissioner for India and another v. I.M. Lall (PLD 1948 PC 150) it was concluded thus‑‑ "In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is: firstly, an opportunity to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegations on which such charges are based and secondly, an opportunity to defend himself by cross‑examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed to the extent to which such rules are incorporated in the statutes. Thus, the second requirement of the provision does not travel beyond what is secondly stated. " It would thus be seen that reasonable opportunity of showing cause in the proceedings and findings of an inquiry has only been contemplated. But nothing is to be read into the rules, which by itself does not provide for its operation. The principle of natural justice is, therefore, sufficiently incorporated in rule 5 of the N.W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, to the extent of providing the civil servant with opportunity of showing cause in the disciplinary matter but it cannot be stretched as to turn it into a criminal trial. The failure of the Authorised Officer to provide the petitioner with copies of certain documents in the inquiry culminating in imposition of minor penalty is, therefore, not enough of a reason to vitiate the whole disciplinary proceedings. The whole procedure in the disciplinary matters is in effect not a trial, but is a process with a view to arriving at reasonable conclusion of a prudent man qua the guilt or otherwise of a civil servant on the allegations levelled against him.

8. Applying the aforementioned principle to the case in hand and having regard to the minor penalty of stoppage of two increments, the omission on the part of the Authorised Officer to furnish to the petitioner the requisite documents before putting in reply to the show‑cause notice would be inconsequential.

9. In so far as the merits of the case are concerned, besides the reasoning that weighed with the Tribunal, the petitioner would be estopped to challenge the propriety or legality of the impugned order, in that, the petitioner had, while explaining the mitigating circumstances to the Authorised Officer during the personal hearing, accepted an "inadvertent or advertent omission and had pleaded for a lenient view".

10. For the foregoing reasons, this petition for leave to appeal has no substance which is accordingly dismissed. A.A./M‑3221/S ????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.