A.U.MUSSARAT Versus GOVT. OF WEST PAKISTAN

1. MUHAMMAD AFZAL CHEEMA, J .-Mr. A. U. Musarrat appellant herein a confirmed Assistant in the West Pakistan Public Service Commission was compulsorily retired from service by the Secretary, vide order dated 5-8-1967 on ground of inefficiency after recourse to proper procedure of issuance of a show-cause notice and observance of other necessary formalities in regard to departmental inquiry. After dismissal of his appeal and review petition by the Chairman, he invoked the Constitutional jurisdiction of the High Court but failed and his Writ Petition No. 1232/S of 1968 was dismissed in limini by a D. B. of the West Pakistan High Court, vide judgment dated 1-12-1969. Leave to appeal was granted vide this Court's order dated 9-4-1970 to consider the contentions as to whether the finding of the Inquiry Officer holding the appellant responsible for about two years' delay in dealing with the promotion case of one Muhammad Ashraf Malik and construed as amounting to establishment of charge of inefficiency against him was based on no evidence and further that even on the finding of the Inquiry Officer himself, the appellant was not exclusively responsible for the delay so as to merit the punishment of compulsory retirement.

2. The facts of the case are very simple. A two-fold charge was levelled against the appellant ;

3. .Firstly, that he delayed the promotion case of one Muhammad Ashraf Malik by about two years ; and

4. Secondly, that he unnecessarily linked the promotion file of Muhammad Ashraf Malik with three cases of another Department. The second alienation was not found to be established and the positive finding on the first allegation was held to be good enough to justify the appellant's compulsory retirement from service on ground of inefficiency. He was accordingly retired on 5-8-1967. His appeal was dismissed by the Chairman of the Commission on 11-10-1967. His review petition also met the same fate on 18-1-1968.

5. The appellant did not cross-examine the witnesses during inquiry nor did he lead any evidence in defence. However, on receipt of a show-cause notice, he furnished a detailed explanation and reiterated the same in his grounds of appeal and review of course admitting his negligence. In its Constitutional jurisdiction, the High Court refused to examine the finding of fact 'given by the inquiry Officer on the allegation of inefficiency and as stated earlier dismissed the appellant's petition in limine, vide the impugned judgment dated 1-12-1969.

6. After taking us through the record and the report of the Inquiry Officer, learned counsel contended before us ; firstly, that from the report of the inquiry Officer itself, it was abundantly clear that from 12-12-1964, the date on which the case of Mr. Muhammad Ashraf Malik was marked to the appellant till 24-3-1965, he dealt with it with utmost promptitude referring it tour times to the Superintendent concerned and even invited a critical observation of showing over zealousness in the case which was considered to be one of routine nature and did not deserve such expeditiousness. Finally, while returning the case to the appellant on 2-43-1965, the Administrative Officer made the following direction

7. "Please report progress in respect of the cases mentioned at the end of para. 92. If on any of the cases final orders of the Commission have been passed this case may be examined in the light of those orders."

8. It was after this that the appellant allegedly slept over the case and re-submitted it on 3-6-1967 on receipt of a reminder after about two years' delay. Our attention was particularly drawn in this context to the following observation of the Inquiry Officer which considerably detracted from if not condoned the responsibility of the appellant, there being a clear and categorical reference to other contributory factors :

9. "This part of the charge that he unnecessarily delayed the case by about two years, is therefore, proved against the accused, though there are apparently certain circumstances evident from the manner in which this case was being returned to the branch by the Branch Officer, which must have contributed to the delay, but it was for the accused to have produced necessary evidence to make any point in this respect."

10. It was submitted that in view of the above observation the past service record of the appellant who started as a Junior Clerk in 1949, was promoted as Senior Clerk in 1952 and was confirmed as Assistant in 1957, and in particular his previous conduct evincing extraordinary promptitude in dealing with this case on four previous occasions, the appellant could not be held guilty of ineffciency on that score and that at any rate the lapse or negligence on his part did not merit the penalty of compulsory retirement from service.

11. On the other hand, it was contended by the learned Assistant Advocate General, Punjab, that the appellant had frankly admitted his negligence in regard to the allegations levelled against him and even in his grounds of appeal and review he had concentrated more on a legal contention challenging the competence of the Secretary to make an order of his compulsory retirement which was rightly repelled by the High Court. It was further submitted that the three cases with which the case of Muhammad Ashraf Malik was to be linked up had already been disposed of by the Public Service Commission and therefore, the appellant was left with no defence to explain away the delay.

12. Having been taken through the facts of the case as brought out on the record, we are clearly of the view that considered in its true perspective, the solitary allegation of delay in the disposal of a single case against the appellant even if found to be established did not amount to inefficiency in the circumstances of the case. There is no gainsaying that the promptitude on the appellant in dealing with this case on earlier occasions brought him the rather unmerited and implied accusation of showing extraordinary interest in a matter of routine nature. He was finally told to re-examine the case in the light of the Commission's order if any on other specified cases. Again it is abundantly clear from the observation made by the Inquiry Officer reproduced above that there were other contributory factors leading to the delay in the case and therefore, the appellant could not be exclusively burdened with this responsibility notwithstanding the fact that he led no evidence in defence. Although there may be some rare cases of gross negligence which if found to be established would leave one in no manner of doubt as to the inefficiency of the official concerned yet a single slip or lapse, if any on the part of a Government servant with a consistently good record would not invariably justify such an inference. Inefficiency has not been defined as a term of art and in its ordinary dictionary meaning would connote inability or want of adequate fitness to attend to one's work. Inefficient has been explained in the Oxford English Dictionary (Volume I) as "incapable of producing the desired effect ; not having the ability or industry required for what one has to do". There is, however, yet another and more important aspect of the matter, Rule 3 of the West Pakistan Government Servants (Efficiency & Discipline Rules, 1960, categorises grounds for penalty of which Ground "A"deals with inefciency. It reads as follows :-,

13. "3. Grounds for penalty.-Where a Government servant, in the opinion of the authority

(a) is ineffcient, or has ceased to be efficient, whether by reason of infirmity of mind or body, or otherwise, and is not likely to recover his efficiency."

14. On a proper analysis of the Rule, it appears that in order to attract the penalty, a Government servant should be either ;

(1) (a) ineffcient and found to be so at the outset ; or

(b) though effcient to start with has ceased to be so by reason of infirmity of mind or body or otherwise ; and

(2) is not be likely to recover his efficiency.

15. In other words before he is visited with the penalty prescribed under the law, a finding has also to be given that the inefficiency or the loss of it as the case may be is more or less of a lasting character and is not likely to be got rid of. In our view, the word "and" has been used disjunctively. No such finding has been given by the concerned authority. This second requirement would also tend to show that ordinarily a single slip or error and of course to err is human, should not be straightaway construed as amounting to inefficiency. At any rate the facts and circumstances of the case as detailed earlier would hardly justify the award of the extreme penalty of compulsory retirement particularly when rule 4 of the relevant rules also envisaged a minor penalty of withholding of increment as well as the milder though technically major penalties of recovery of pecuniary loss caused to the Government by negligence if any, reduction to a lower post or time scale or to a lower stage in a time scale.

16. For the foregoing reasons, we accept this appeal with no order as to costs. In consequence, the appellant shall be deemed to be in service still holding the post of a confirmed Assistant in the Punjab Public Service Commission.

17. S. A. H. Appeal accepted.