1991 PLP (C (PLC(CS))

"Whereas, Mr. Hashmat N. Oad, Assistant Engineer, was issued a charge-?sheet under Rule 5(2) of the Sindh Civil Servants (E&D) Rules, 1973 for certain acts of omission, commission, misconduct, and inefficiency allegedly committed by him while posted as Assistant Engineer, Highways Division, Kambar (defunct): And whereas Mr. Arif Ali, the then Superintending Engineer, Highways Circle-I, Hyderabad, was appointed as Enquiry Officer to hold enquiry against the said Mr. Hashmat N.Oad in accordance with the provisions of Rule 5(3) of the Sindh Civil Servants (E&D) Rules, 1973: And Whereas, the said Enquiry Officer has submitted his report; And Whereas, with the approval of competent Authority Mr.Hashmat N.Oad was dismissed from service on 12-5-1980. And Whereas, Mr. Hashmat N.Oad preferred as appeal before Sindh Service Tribunal and the orders were set aside but left it open to the Authority to proceed against appellant from the stage from which the error could be corrected. And Whereas, the said officer was issued final show-cause notice indicating major penalty prescribed under Rule 5 of the Sindh Civil Servants (E&D) Rules, 1973 and the accused submitted his explanation to the show-cause notice and whereas, on his suspension he did not join his Headquarter fixed at Sukkur, as Superintending Engineer, Highways Circle with effect from 18-4-1985 to date. And Whereas he was provided 3 opportunities of personal hearing fixed on various dates i.e. 22-12-1987, 20-1-1989 and 17-6-1989, but the accused could not substantiate his explanations to prove his innocence, which were found unsatisfactory. And Whereas, after taking into consideration the facts of the case and recommendation of the Authorised Officer, the Authority has decided that a major penalty of removal from service be imposed on Mr. Hashmat N. Oad. Now, Therefore, in exercise of powers conferred by sub-rule (4) of Rule 5 of the Sindh Civil Servants (E&D) Rules, 1973, the author is pleased to order the removal of Mr. Hashmat N. Oad, Assistant Engineer (under suspension) from service with immediate effect, and treat his period of suspension with effect from 18-4-1985 to date. as extraordinary leave without pay." It is clear from the above order that it disposed of two departmental proceedings: one the proceeding originating from six charge-sheets relating to appellant committing of financial irregularities and two, the proceeding with regard to his failure to report in the S.E. Sukkur's Office, his headquarter during the suspension period. As for the first proceeding, it has resulted in the appellant's dismissal from service, which was challenged in Appeal No. 51/1980 before this Tribunal. By its judgment dated 30th March, 1982, while setting aside the appellant's dismissal order, our predecessor Tribunal made the following observations: "We accordingly allow the appeal and set aside the order of dismissal passed against the appellant, leaving it open to the authority to proceed against the appellant from the stage from which the error could be corrected, namely, by supplying a copy of the findings of the Enquiry Officer to the appellant to enable him to submit his explanation in regard to the material brought against him during the proceedings and the opinion formed by the Enquiry Officer as well as the action proposed to be recommended by the Authorised Officer. The appeal is allowed in the above terms with no order as to costs."

4. The above order shows that the appellant's dismissal was set aside on technical grounds namely that neither a copy of enquiry report was supplied to the appellant nor he was given final notice indicating the action proposed to be taken against him. As such it was left open to the departmental authorities to proceed against the appellant from the stage where the said error could be rectified. In other words the said authorities were required to furnish the appellant a copy of the enquiry report and the final notice indicating therein the penalty proposed to be imposed upon him. As against this, all that was done was that two months after announcement of the judgment of the Service Tribunal, the appellant was reinstated in service by order dated 3-6-1982 but on the same day he was placed under suspension by a separate order. Thereafter no action was taken for nearly three years until 18th April, 1985 when by order the appellant's headquarter was fixed for the period of suspension. Again the authorities obviously forgot about the compliance of the judgment of the Service Tribunal. Instead the appellant was given show-cause notice for his failure to report at his headquarter fixed in the office of the S.E. Sukkur. Although he submitted his reply within 14 days after the notice was published in the Daily `Jang', yet no further action was taken against him. Even the authorities remained mum, continuing to maintain their ominous silence as regards the compliance of the Service Tribunal's judgment. Tired of unending waiting for conclusion of the departmental proceedings against him, the appellant was constrained to take the matter in the High Court in the writ petition. It was there that the Government counsel made a statement that "the Department will finally decide the matter in question in accordance with law within three months from today". On the strength of that statement the appellants' petition was disposed of by the High Court vide its judgment dated 30th May, 1989. Thus the departmental authority gave undertaking to take final action in implementation of the judgment of the Service Tribunal delivered about seven years ago in 1982. At last the impugned order dated 31st July, 1989 was issued, whereby the appellant was removed from service. 5.? The question arose if the impugned order follows the due compliance of the Service Tribunal's judgment. The learned counsel for the appellant replied this question in the negative. He complained that as required by the judgment of the Service Tribunal, neither copy of enquiry report was furnished to the appellant nor he was given final show-cause notice. If the impugned order is read between the lines, it would be clear that although final show-cause notice was given to the appellant in compliance of the judgment of the Service Tribunal, a copy of the enquiry report was not supplied to him. This showed callousness of the worst order on the part of the departmental authorities who passed the impugned order obviously to implement the judgment of the Service Tribunal after seven years of its announcement and that too in pursuance of the undertaking given to the High Court in writ petition filed by the appellant. However, the said authority did not take care to ensure that before passing the said order due compliance of the Service Tribunal's direction was made. In these circumstances the learned counsel appearing for the official respondents finding himself on the wet wicket, frankly conceded about non-compliance of the judgment of the Service Tribunal as neither a copy of the enquiry report was furnished to the appellant nor final show-cause notice was given to him prior to passing of punishment order. The concession made by learned Government, counsel finds support at least as regards non-supply of a copy of enquiry report impugned order itself. The said order is conspicuously silent in this regard. As for the final show-cause notice, although it is mentioned in the impugned order that it was given to the appellant yet there was no evidence to substantiate such claim. On the contrary, as pointed out above, the learned Government counsel admitted before us that even show-cause notice was not given to the appellant in compliance of the judgment of the Service Tribunal. 6.? For the above reasons the learned Government counsel was constrained to agree with us that the punishment awarded to the appellant on the ground of financial irregularities allegedly committed by him could not be sustained. However, he submitted that if that ground failed, the punishment could be maintained on the other ground; namely the appellant's failure to report at his headquarter fixed for his suspension period. As pointed out above the appellant's headquarter was no doubt fixed the office of S.E. Sukkur for his suspension period vide order dated 18th April, 1985. It was also not denied he failed to report at the above headquarter. This is clear from his reply dated 24-8-1989 to the show-cause notice published in daily `Jung' dated 12-8-1989 in this connection. Thus irrespective of whether it was proposed to fix his headquarter at Sukkur, the charge of his failure to report at the said headquarter was obviously proved from his own admission. No further evidence was required to prove that charge. Accordingly we are in agreement with the learned Government counsel that punishment could be awarded on the basis of the charge proved against the appellant.

7. Having arrived at the above conclusion, we have to decide whether the extreme penalty of removal from service awarded to the appellant would be in consonance with the gravity of the charge proved against him. We are of the considered view that the major penalty awarded to the appellant was mainly due to the charge of financial irregularities allegedly committed by him. That ground having failed as discussed above, the said penalty was definitely not called for merely because the appellant failed to report at the headquarter fixed for his suspension period. In this connection we have also to take into consideration the circumstances in which the appellants' headquarter for suspension period was fixed. The gist of the case shows that the appellant has been under suspension right from 6-6-1974 until today excepting for brief period from 10-10-1974 to 25-2-1979 during which he was reinstated. The appellant's grievance was that he has never been paid any subsistence allowance during the period of suspension, This is not, denied by the respondents in the written statement filed on their behalf. The appellant's further allegation was that although he has remained under suspension for more than 15 years, his headquarter for suspension period was fixed for the first time on 18th April, 1985. This allegation too has not been denied in the written statement. According to the appellant, the headquarter was Red with mala fide intention only to cause inconvenience to him, as the departmental authorities knew very well that he was settled at Hyderabad. In reply to this allegation all that has been said in the written statement is that the fixation of the headquarter was requirement of the rules and that the allegations made by the appellant were baseless. On the face of it the reply is evasive and therefore, does not inspire confidence. We are at a loss to understand why the departmental authorities took so many years to realise that fixation of headquarter for suspension period was a legal necessity- Even if the fixation of headquarter was held as requirement of the rules, it is nowhere provided in the rules that the authority competent to fix the headquarter had power to fix it anywhere arbitrarily according to his choice. Normally the headquarter for the person placed under suspension is fixed at the place of his last posting or in the alternative the authority concerned exercising discretion can fix the headquarter in keeping with convenience of the suspended person. Therefore we agree with the view expressed in course of the arguments that there was absolutely no justification to fix the headquarter at Sukkur. It is true that in those days the case of corruption was pending against the appellant in the Court of Special Judge, Sukkur. If that was the reason for fixing his headquarter at Sukkur, then it should have been fixed with his own consent. It may not be out of way to state here that instead of taking prompt action in terms of the judgment of Service Tribunal referred to above the appellant was referred to Anti-Corruption Police and after due investigation he was challaned in the Court of Special Judge, Sukkur. However that case failed for want of sanction for prosecution of the appellant.

8. Keeping in view the sad history of the appellants' case spread over more than one and half decades during which the appellant suffered a lot of humiliation and harassment we order that minor penalty of "censure" would meet the ends of justice. Accordingly the appeal is partly allowed and the penalty of removal from service is converted into censure. There will no order as to costs. A.A./313/Sr.S????????????????????????????????????????????????????????????????????????? Appeal partly allowed.