MUHAMMAD ALI S. BUKHARI vs FEDERATION OF PAKISTAN through Establishment Secretary, Islamabad and 2 others

' MUHAMMAD. NAWAZ ABBASI, J.--- This appeal by leave of the Court, has been directed against the judgment of Federal Service Tribunal, dated 30-7-2004 passed in Appeal No,554(K)(C.S.) of 2002 whereby the penalty of removal from service awarded to the appellant was converted into compulsory retirement from service.

2. The leave was granted in this appeal vide order, dated 26-1-2005 as under:-- "It is inter alia, contended that the petitioner was subjected to discriminatory treatment in the matter of successive show-cause notices and inquiries; that the Inquiry Officer kept on consulting with the Director-General, Commercial Audit, who was unfavourably disposed and hostile towards the petitioner; that enquiry was not conducted according to law; that the charges of not submitting the project reports and unauthorized absence from duty were not established against him; that the statement of the petitioner was recorded in question-answer format which has caused miscarriage of justice and that despite the recommendation of the Authorized Officer for lesser penalty Competent Authority imposed major penalty of removal from service on the petitioner.

' Leave to appeal is granted to consider the above questions which appear to be of public importance."

3. The short facts leading to the filing of this appeal are that appellant, a Grade-18 Officer of Audit and Account Service, while posted as Deputy Director Audit, Office of the Director-General Commercial Audit and Evaluation (South) Karachi, was served with a show-cause notice, dated 1- 11-1997 by the Auditor-General for Pakistan to the effect that despite Director-General's repeated directions, he failed to submit audit report of Saindak Metals Ltd., and similarly he did not comply with the orders regarding special assignment of audit of Port Qasim Authority given to him and thereby he committed an act of insubordination. The appellant, on rejection of his application submitted on 25-9-1997 for grant of 15 days' LFP, was directed to appear before the D.G. But he absented from duty, therefore, he was served with a charge-sheet on 3-3-1998 containing the above charges. In view of the nature of allegations, successive inquiries were held against the appellant and he having been found guilty of the charges, was awarded major penalty of removal from service vide order, dated 8-8-2002. The appellant after availing the remedy of departmental appeal, approached the Federal Service Tribunal and the Tribunal with conversion of penalty of removal from service into compulsory retirement, disposed of his appeal and appellant being dissatisfied with the judgment of Tribunal has filed this appeal before this Court in which leave was granted as aforesaid.

4. The main 'charge against the appellant was that he having disobeyed the orders of his superiors in respect of the assignment of special audit given to him committed an act of insubordination and also was guilty of wilful absence from duty. The appellant giving an evasive reply to the show- cause notice stated that he was not given an order in writing for the special assignment and similarly the absence of the appellant from duty was not deliberate and wilful rather his failure to attend the duty, was due to his ailment and he availing the medical leave under the advice of the doctor, sent an intimation to the office therefore, he could not be treated absent from duty without permission. In nutshell submission of the appellant, was the departmental action against him was the result of mala fide of the Director-General and the forums below without giving due consideration to the circumstances leading to the departmental action, held him guilty of the charge in a perfunctory manner. The appellant when confronted that the departmental authorities namely the Inquiry Officer as well as the Authorized Officer and Competent Authority having found him guilty of the charge concurrently proposed major penalty of removal from service, he submitted that initially penalty of reduction in time scale was proposed but subsequently, he was imposed the penalty of removal from service and Tribunal converted the same into compulsory retirement from service.

5. Learned D.A.-G., on the other hand, has submitted that the appellant being a senior member of Accounts Service, was not supposed to behave in the manner he acted and that the act of wilful absence from duty would be sufficient to constitute the misconduct and insubordination entailing major penalty of dismissal, or removal from service and in view of the fact that Tribunal has converted the penalty of removal from service imposed upon the appellant into compulsory retirement, no further indulgence is required in the matter.

6. Having perused the record with the assistance of learned D.A.-G. And the appellant in person, we have found that the charge regarding non-compliance of order of the superiors and absence from duty, without prior permission, stood established against the appellant who instead of repenting on his conduct and giving plausible explanation, has made an attempt to convince us that he was neither supposed to accept the special assignment without order in writing nor his absence from duty would be treated without permission as he availed the medical leave as per his entitlement.

This may be seen that in the service discipline, the oral order of the superior in relation to the official business, is as good as order in writing and the mere fact that order passed by the Director- General on the file deputing the appellant to special audit assignment was not conveyed to him in writing, would not be sufficient to justify his conduct and he without denying the fact relating to the special assignment given to him and absence from duty, denied charges with unsatisfactory explanation.

7. The civil servant can avail earned leave in his own right but for grant of such right he must follow the proper procedure provided under the rules and is not supposed to avail any kind to leave entirely in his discretion and choice in departure to the rules and service discipline. The conduct of appellant was thus, unbecoming of a good officer and in the given circumstances, the absence of appellant from duty without leave even if was not wilful, it being an act of disorder in the service, would E certainly constitute misconduct and consequently, no exception can be taken to the opinion expressed by the Tribunal. However, in service matters, the penalty is always imposed in the light of nature of charge F and in the present case the charge against the appellant was not so grave to propose major penalty of removal from service or compulsory retirement.

8. The leave is right of a civil servant which can be availed in terms of the rules and mere fact that appellant did not obtain permission before proceeding on sick leave rather availed medical leave on the advice of doctor, may not be considered an act of gross misconduct I entailing major penalty of dismissal from service. The concept of major and minor penalty in the service laws is, to determine the question of j punishment in the light of nature and gravity of the charge and we find that in the present case, concerned authorities without attending this aspect of the case, awarded major penalty to the appellant. In the light of facts and circumstances of the present case, we are of the view that major penalty of compulsory retirement is harsh and does not commensurate with the nature of charge, therefore, we while modifying the judgment of Tribunal, convert the penalty of compulsory retirement K into reduction of two steps in time scale for a period of two years in consequence to which the appellant would be deemed not to have earned two increments for a period of two years.

9. In the light of foregoing reasons, this appeal, with the above modification in the penalty of appellant, is partly allowed with no order as to costs.