MUHAMMAD AFZAL QURESHI Versus MEMBER, WATER AND POWER MANAGEMENT, WAPDA, LAHORE

1. CH. HASAN NAWAZ (MEMBER):--‑‑ While he was in service as Draftsman LIM Project WAPDA, Hyderabad, proceedings under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 were initiated against the appellant with the service of following letter of explanation dated 30‑7‑1989:

2. "Subject:‑ Explanation letter under Rule 5 (iv) of Pakistan WAPDA Employees (E&D) Rules, 1978

3. It has been reported by the Director, Watercourse Monitoring and Evaluation Project that while you were working in Watercourse Monitoring and Evaluation Project WAPDA, Lahore, you were granted 15 days earned leave on full pay w.e.f. 1‑7‑1980 to 15‑7‑1980 vide his Office Order No. ED/CE/S&R/PF/4309, dated 8‑7‑1980. After expiry of leave, you were required to resume duty on 16‑7‑1980 Forenoon instead you sent a telegram for extension of leave up to 20‑7‑1980. Accordingly, you were required to resume duty on 21‑7‑1980 but failed to resume duty.

(ii) You were directed by the Director, Watercourse Monitoring and Evaluation Project vide his Office Letter No. CE/S&R/PF/4933, dated 7‑8‑1980 at your home address to resume duty at once and further called upon to explain the reasons for wilful absence from duty. This letter was received back as undelivered with the remarks of postal authorities as under:‑

4. Ultimately you attended office on 18‑8‑1980 after remaining absent from duty w.e.f. 16‑7‑1980 to 17‑8‑1980 i.e. 33 days, but failed to submit your explanation for remaining absent from duty for this period, as required.

(iii) The Director, Watercourse Monitoring and Evaluation Project has further reported that you also did not attend office on 21‑8‑1980 and on 28‑8‑1980 respectively. You attended office on 30‑8‑1980, falling Friday on 29‑8‑1980, hardly stayed for about half an hour on 30‑8‑1980 and slipped away from office without intimation to your Office In-charge. You did not turn up for duty even on 31‑8‑1980. Thus you managed to remain absent from duty 28‑8‑1980 to 31‑8‑1980. The above facts have been verified from the `Attendance Register'.

(iv) If the above allegations are established, you will be guilty of `misconduct' as defined under the Pakistan WAPDA Employees (E&D) Rules, 1978.

(v) You are, therefore, hereby served with this explanation letter under Rule 5(iv) of the said Rules to explain as to why one or more of the minor or major penalties as defined in Rule 4 of the said Rules should not be imposed upon you. You are, therefore, required to put in your written defence, within a period of 14 days from the date of receipt of this letter, failing which it will be presumed that you have no defence to offer and an ex parte action shall be taken against you.

(vi) You will have the right of personal hearing with reference to reply if any, to the explanation letter, if you so desire.

(vii) Statement of allegations are attached.

5. (Sd.)

6. (MUHAMMAD MUNIR),

7. Chief Engineer,

8. P&I.

2. It was accompanied by the following statement of allegations:

9. "(1) Remaining absent from duty w.e.f. 16‑7‑1980 to 1.7‑8‑1980 (33 days) and non‑submission of reply of explanation letter No. CE/S&R/PF/4933, dated 7‑8‑1980.

(ii) Remaining absent from duty on 21‑8‑1980‑‑ (one day).

(iii) Remaining absent from duty w.e.f. 28‑8‑1980 to 31‑8‑198(1(4 days).

10. (Sd.)

11. (MUHAMMAD MUNIR),

12. Chief Engineer,

13. P&I."

3. These disciplinary proceedings eventually culminated in the passage of order dated 3‑6‑1990, removing him from service passed by Mr. Muhammad Munir, Chief Engineer as competent authority. After exhausting departmental remedy provided under the rules, the appellant has challenged the validity of this order in Appeal No. 212(L) of 1990, riled on 25‑11‑1990 under section 4 of the Service Tribunals Act, 1973.

4. On the same date that is to say 30‑7‑1989, he was served with another letter of explanation under Rule 5(iv) of the Rules, which makes the following reading:

14. "Subject: Explanation letter under Rule 5 (iv) of Pakistan WAPDA Employees (E&D) Rules, 1978.

15. It has been reported by the Director, Watercourse Monitoring and Evaluation Project that while you were working in Watercourse Monitoring and Evaluation Project WAPDA, Lahore, you were holding the charge of drawing T & P Articles since 25‑11‑1979. At the time of handing over charge by you on 27‑8‑1980 to Mr. Ahmed Bukhsh, Draftsmen, you did not hand over entire drawing articles which were actually under your charge. It has further been reported that in addition to normal charge of Drawing T & P items, on 10‑5 1980, you were handed over subsequently survey instruments i.e. Telescopic Alidate one number and Engineering Level one number. On demand these items were not handed over by you.

16. The missing drawing T&P articles and survey instruments have not been returned by you so far. It reflects that you have deliberately embezzled the WAPDA property, details of which are as under:‑

17. S.No.

18. S. No.

19. Description of items

20. Quantity

21. Book Value

22. 1.

23. Leroy Templates of Lettering Sets

24. 18

25. Rs3,375.00

26. 2.

27. Leroy Lettering Set, 9 plates

28. 1

29. Rs.1,375.00

30. 3.

31. Leroy Pen Holder

32. 1

33. Rs. 25.00

34. 4.

35. Scriber

36. 1

37. Rs. 187.00

38. 5.

39. UNC Stencil Set Pen

40. 1

41. Rs.40.00

42. 6.

43. Set Square (Large)

44. 2 Pairs

45. Rs.70.00

46. 7.

47. Edge Binding Machine

48. 1

49. Rs. 1,950.00

50. 8.

51. Pentograph (Hope)

52. 1

53. Rs.12,000.00

54. 9.

55. Engineering Level

56. 1

57. Rs.4,400.00

58. 10

59. Telescope Allidad

60. 1

61. Rs.2,800.00

62. 11.

63. Leroy Lettering Set

64. 12 Plates

65. Rs.1,800.00

66. Total=

67. Rs.28,022.00

68. If the above allegations are established, you will be guilty of "misconduct" as defined under Rules 2‑5(ii) & (iv) of Pakistan WAPDA Employees (E&D) Ruls, 1978.

69. You are, therefore, hereby served with this explanation letter under Rule 5(iv) of the said Rules to explain as to why one or more of the minor or major penalties as defined in Rule 4 of the said Rules should not be imposed upon you.

70. You are, therefore, required to put in your written defence within a period of 14 days from the date of receipt of this letter, failing which it will be presumed that you have no defence to offer and an ex parte action shall be taken against you.

71. You will have the right of personal hearing with reference to reply if any to the explanation letter if you so desire.

72. Statement of allegations is attached herewith.

73. (Sd.)

74. (MUHAMMAD MUNIR),

75. Chief Engineer,

76. Planning & Investigation

77. Organisation, WAPDA:

5. These proceedings also resulted in another office order passed on 30‑6‑‑1990 by the same authority removing him from service. The appellant has challenged its validity in separate Appeal No. 214(L) of 1990, after due fulfilment of statutory formality of making a departmental appeal.

6. On 19‑7‑1989, disciplinary proceedings were initiated against the appellant in another case with the service of following show‑cause notice:

78. "Subject: Explanation letter under Rule 5 (iv) of Pakistan WAPDA Employees (E&D? Rules. 1978

79. You had been applying for leave from 12‑10‑1988 to 31‑5‑1989 in piecemeal on the pretext of your illness, to the Project Director, LIM Project, WAPDA; Hyderabad. You were directed to appear before the Director‑General, Medical Services, WAPDA Central Hospital, Sunny View, Lahore vide this office letters No. CE/P&I/Admn/89/14‑E/2694, dated 22‑5‑1989 and No. CE/P&I/Admn/89/14‑E/3059, dated 7‑6‑1989 respectively, for your medical examination as recovered under Rule 21 of "Pakistan WAPDA Leave Rules for WAPDA Employees 1982". It has been reported by the Secretary, Medical Board, WAPDA Central Hospital, Sunny View, Lahore vide his letter No. Hosp/30593/6/p/6259, dated 18/20‑6‑1989 that you have not reported for the medical board. Thus, you have violated instructions as issued vide this office letters referred above, deliberately, and proved yourself guilty of misconduct as defined under Rule 2‑5(v)(i) of Pakistan WAPDA Employees (E&D) Rules, 1978.

80. You are, therefore, hereby served with this explanation letter under Rule 5(iv) of the said Rules to explain as to why one or more of the minor or major penalties as defined in Rule 4 of the said Rules should not be imposed upon you.

81. You are, therefore, required to put in your written defence within a period of 14 days from the date of receipt of this letter, failing which it will be presumed that you have no defence reply to offer and ex parte action shall be taken against you.

82. You will have the right of personal hearing with reference to reply if any to the explanation letter if you so desire.

83. (Sd.)

84. (MUHAMMAD MUNIR),

85. Chief Engineer."

7. They eventually came to an end on 3‑6‑1990 with the passage of office order removing him from service by the aforementioned Mr. Muhammad Munir, Chief Engineer. Its validity has been challenged in Appeal No. 213(L) of 1990 filed on 25‑11‑1990 after due compliance with the statutory requirements of making a departmental appeal.

8. A few months earlier, on 23‑5‑1989, proceedings under the disciplinary rules were started against him with the service of following show‑cause notice:

86. "Subject: Show‑cause notice

87. Explanation letter under this Office No. CE/P&I/Admn/89/PF/1588, dated 19‑3‑1989 was issued and sent to you at your home address but received back with the remarks of Postman that the addressee has refused to receive the letter. However, the same letter was sent to Project Director, Lower Indus Water Management and Reclamation Research Project WAPDA for service upon you as Project Director. LIM informed us about your joining his office on 30‑3‑1989, but the letter in question has been again received back as you left your headquarter on 26‑3‑1989 after submitting an application for 5 days casual leave and did not turn up till date and it appears that you deliberately are avoiding to receive the letter in question, as such I am of the tentative opinion that a penalty be imposed upon you and the penalty is provisionally determined as that of `Removal from service'.

88. You are, therefore, hereby served with this notice in terms of Rule 5(v) of Pakistan WAPDA Employees (E&D) Rules, 1978 to show cause within a period of 14 days from the date of receipt of this notice as to why the above proposed penalty be not imposed upon you.

89. You will have the right of personal hearing with reference to reply, if any, to this notice, if you so desire.

90. (Sd.)

91. (MUHAMMAD MUNIR),

92. Chief Engineer,

93. P&I"

9. Here again, he was ultimately removed from service by the same officer through office order dated 3‑6‑1990 which was made the subject of Appeal No. .215(L) of 1990 filed on 25‑11‑1990 after due fulfilment of statutory requirements.

10. It is evident from the aforementioned facts that all the four appeals have been filed by the same person against the same Department and they give rise to identical questions, of law and fact. Therefore, they have been taken together for disposal in this judgment.

11. It will be in place to mention that the appellant was served with the following charge‑sheet about nine years earlier on 13‑12‑1980:

94. "Survey and Research Organisation.

95. 39‑A, New Muslim Town,

96. Lahore.

97. CE/S&R/PF/7840‑41. Dated 13‑12‑1980.

98. Subject: CHARGE‑SHEET

99. You, Mr. Muhammad Afzal s/o Muhammad Fazal, Draftsman is hereby charged as under:‑

(i) You were granted 15 days earned leave on full pay w.e.f. 1‑7‑1980 to 15‑7‑1980 vide this Office Order No. PD/CE/S&R/PF/4309 dated 8‑7‑1980 under WAPDA Leave Rules, 1979. After expiry of leave you were due to resume duty on 16‑7‑1980 forenoon. Instead you sent a telegram for extension of leave upto 20th July, 1980 Forenoon. But you resumed duty on 18‑8‑1980. Accordingly you were required to resume duty on 21‑7‑1980 Forenoon on the directive as issued vide this office letter No. CE/S&R/PF/4933, dated 6‑8‑1980. Hence you managed to avail unsanctioned leave w.e.f. 16‑7‑1980 to 17‑8‑1980 i.e. 33 days. You were required to furnish your explanation for remaining absent for the above period and failed to do so.

(ii) As per Attendance Register, it has further been observed that you did not attend office on 28‑8‑1980. No leave application for that day has been furnished to this office for sanction of leave or otherwise for that day. Thus you absented yourself for 28‑8‑1980.

(iii) You attended office on 30‑8‑1980 falling Friday on 29‑8‑1980, hardly stayed for about half an hour and slipped away from office without intimation to your Office In-charge. You did not turn up for duty so far. Thus you absented yourself continuously from duty w.e.f. 30‑8‑1980 and are still absconding from duty.

(iv) A telegram was sent to you at‑your permanent home address on 27‑9‑1980 directing you to resume duty at once. This telegram was further sent through confirmation vide this office letter No. CE/S&R/PF/5914, dated 27‑9‑1980 under Registered A.D. cover which has been received back as undelivered through Postal Authorities.

(v) You were again directed at your permanent home address vide this office Letter No. CE/S&R/PF/5916‑18, dated 27‑9‑1980 through Registered A.D. cover, directing to resume duty at once. The letter in question has not been received by you again and returned to this office.

(vi) While you were present .in office on 26‑8‑1980, you were directed vide Deputy Director (Agri. Engg.) Watercourse Monitoring and Evaluation Project WAPDA's, Letter No. Nil, dated 26‑8‑1980, under intimation to the undersigned, to return T&P items under your charge. But you failed to return the requisite items so far.

100. The detail of T&P and Drawing Instruments which remained under your charge is enlisted. These items have been found missing on physical verification as compared with the entries made by you up to 2‑6‑1979, in Drawing Items Stock Register. The book value of the items outstanding against you costs Rs.30,555 as per details given against each item. You were, thus required to return the T&P drawing items as enlisted at once, but you failed to do so in spite of instructions issued to you. Thus you have embezzled Authority's property as enlisted intentionally amounting to Rupees mentioned above.

(vii) If the above allegations are proved, you will be guilty of `Misconduct' under the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 applicable to you and will render yourself liable to or any of the penalties described in Rule 4 of the said rule.

(viii) You are, therefore, hereby required to show cause in writing within 14 days of the receipt of this charge‑sheet stating within the said period why disciplinary action as aforesaid should not be taken against you.

(ix) Your explanation should reach the undersigned within the aforesaid period failing which, it shall be presumed that you have declined to offer the same.

101. (Sd.)

102. (CH. RAHMAT ALI),

103. Project Director,

104. W/C Monitoring & Evaluation Project,

105. WAPDA, Lahore."

12. In those proceedings he was dismissed from service by order dated 14‑5‑1981. Its validity was challenged in Appeal No. 162(L) of 1983 filed on 14‑5‑1983, which was accepted by the Tribunal by its judgment dated 11‑8‑1988 and consequently, he was reinstated in service.

13. It appears from the charge‑sheet of 13‑12‑1980 that similar allegations regarding absence from duty had been made against the appellant, which subsequently made the subject of letter of explanation dated 30‑7‑1989 under rule 5(iv) of the Rules in Appeal No. 212(L) of 1990. Further, charge‑sheet dated 13‑12‑1980 bears out that similar allegations of misappropriation of funds were made against him, as subsequently constituted a basis for letter of explanation dated 30‑7‑1989 in Appeal No. 214(L) of 1990.

14. We feel no hesitation in holding that the appellant could not be subjected to disciplinary proceedings on the basis of exactly similar allegations made in the earlier disciplinary proceedings, where he was punished by the Authority, but subsequently exonerated on appeal by the Service Tribunal in its judgment dated 11‑8‑1988. It is a settled law that no person can be punished twice for the same offence. The allegations of charge‑sheet dated 13‑12‑1980 are exactly the same, as were subsequently levelled in different letters of explanations served upon the appellant on 30‑7‑1989. There was absolutely no legal justification for these disciplinary proceedings and his eventual removal from service by order dated 3‑6‑1990 after he had already been penalised by the competent authority with an order of dismissal from service on 14‑5‑1981. We hold that subsequent disciplinary proceedings initiated on 30‑7‑1989 culminating in appeals Nos. 213(L)/1990 and 214(L)/1990 were barred on the principles analogous to those of res judicata.

15. It was contended by the respondent's learned counsel during the course of arguments that the earlier judgment of 11‑8‑1988 could not operate as res judicata because it was accepted on technical grounds. He referred us to the observations made by one of the learned Members in paragraph‑7 of the judgment initiated by him on 3‑8‑1988. He found that the charge‑sheet in original had not been produced before the Tribunal and even a copy of the Inquiry Report in original was not there on the record. Nor, he observed, there was anything to show that the appellant was given a chance of personal hearing by the Authorised Officer in accordance with the rules. Whatever be the reasons, there is no doubt about the fact that the appeal was accepted by the Tribunal. A careful application to the judgment would show that apart from technical grounds, merits of the case were also dealt with by the Tribunal. We would, therefore, hold that the earlier judgment was effective and final determination of the questions involved in these two subsequent appeals between the same parties giving rise to similar questions, as would operate as res judicata. The judgment in the previous appeal was virtually on merits of the case and it was by no means within the competency of the Department to revive the whole matter again for fresh disciplinary proceedings. We hold that the orders of removal passed on 3‑6‑1990 in consequence of letters of explanation dated 30‑7‑1989 in Appeals Nos. 212(L)/1990 and 214(L)/1990 are liable to cancellation.

16. It may be noticed that allegations made in letters of explanation dated 23‑5‑1989 in Appeal No. 215(L)/1990 and 19‑7‑1989 in Appeal No. 213(L)/1990 are based on more or less the same kind of allegations. What appears to have happened is that the appellant was transferred from the office of Director, Watercourse Monitoring & Evaluation project WAPDA, Lahore on 11‑10‑1988 to Lower Indus Water Management & Reclamation Research Project, Hyderabad, where he reported his arrival on 30‑3‑1989. He applied for leave on different occasions during the period from 12‑10‑1988 to 31‑5‑1989 on the pretext‑ of illness, to the Project Director, LIM Project, WAPDA, Hyderabad. He was directed to appear before Director‑General, Medical Services, WAPDA, Central Hospital, Lahore through letters dated 22‑5‑1989 and 7‑6‑1989 for medical examination, as required under rule 21 of the Pakistan WAPDA Leave Rules, 1982. It was reported by the Secretary of the Medical Board through letter dated 20‑6‑1989 that he did not report for examination to the Board.

17. As we see from the explanations rendered by the appellant in response to the show‑cause notices, his excuse for absence was that on 13‑10‑1988 he had a sudden attack of Sciatic of the right side. He produced a medical certificate in support of the fact of his ailment. However, it is an admitted fact that he failed to appear before the Medical Board as directed by the competent authority through letters dated 22‑6‑1989 and 7‑6‑1989. Although his learned counsel tried to explain this fact during the course of arguments, we are inclined to hold that the appellant did remain absent from duty on various occasions after he had been posed to Hyderabad. The excuse, of illness does not appear to be valid and we find that the only reason for his absence from duty was the fact of his transfer to Hyderabad. If at all he was suffering from some sort of ailment, there is no reason whatsoever why he should not have appeared before the Board for medical examination. Therefore, it will have to be found, after due application to the material on the record that his absence from duty was rather wilful, as could amount to misconduct within the meaning of disciplinary rules, justifying the imposition of a penalty.

18. However, we are of the view that the punishment of removal from service awarded on the basis of almost identical allegations made in show -cause notice dated 23‑5‑1989 and letter of explanation dated 19‑7‑1989, is somewhat excessive and that a lenient view of the matter would have been sufficient to promote the ends of justice. There is no doubt about the fact that the appellant remained absent from duty on certain occasions and that the excuse mentioned by him in his explanation was not sound. Even then, his default entailed a lesser punishment, considering that there was no charge of dishonesty against him, as would have warranted a more serious view of the matter. The appellant has served the Department for a period of more than 25 years, and under the circumstances, punishment of compulsory retirement would have been just and appropriate.

19. For the reasons mentioned above Appeals Nos. 212(L)/1990 and 214(L)/1990 are accepted and orders of appellant's removal from service dated 3‑6‑1990 made in these two cases are set aside. Appeals Nos. 213(L)/1990 and 215(L)/1990 instituted on 5‑11‑1990 are accepted only in part and the impugned orders of removal from service in these two cases passed on 3‑6‑1990 are set aside and substituted with orders of appellant's compulsory retirement from service with effect from 3‑6‑1990. The period of absence shall be treated as leave extraordinary (without pay). The respondents are directed to issue necessary orders for payment of pension in consequence of this judgment. There will be no order as to costs. Parties to be informed.

20. RANA RIFAT SAEED (MEMBER).‑‑‑ I agree with the above judgment of my learned brother for compulsory retirement, but with the following observations:‑‑

106. (i). During the course of hearing this was brought out particularly by the learned counsel for the appellant that some of the charges as contained in Appeal No. 162(L)/1983, decided on 14‑4‑1983 had been repeated in Appeal No. 212(L)/1990 and resultantly the appellant was removed from service on account of 33 days absence for which initially he had proceeded on leave after sanction of leave. The Authority to award this punishment in Appeal No. 212(L)/1990 was Mr. Muhammad Munir, Chief Engineer (P&I).

107. This was confirmed that the charges of Appeal No. 162(L)/1983 had really been repeated in Appeal No: 212(L)/1990 and certain charges of absence which had occurred before the cause of action pertaining to Appal No. 162(L)/1983 had also been taken into account, while awarding the punishment of removal at much later date i.e. on 30‑6‑1990.

(ii) In the facts and merits of Appeal No. 213(L)/1990 absence of 1988/89 had been taken into account by the same authority i.e.. Mr. M. Munir, C.E. and consequently the appellant had again been removed from service vide Order No. CE/P&I/Admn/Inq:89/2800, dated 3‑6‑1990. Although, this was done on account of an independent absence which had been processed by same authority i.e. Mr. Munir, C.E. who had again awarded the punishment of removal. But it looked mala fide that the earlier order of removal and this order No. CE/P&I/ Admn/Inq:89/2800 of removal from service were issued on same date of 3‑6‑1990.

108. (iii)Considering the facts and merits of Appeal No. 214(L)/1990, it was also found out that some charges pertaining to old Appeal No.162(L)/1983 had been re‑mixed in charges of the instant appeal and same authority i.e. Mr. Munir, C.E. had awarded the punishment of removal from service vide order No. CE/P&I/Admn/Inq:89/2799, dated 3‑6‑1990.

(iv) The merits and facts contained in Appeal No. 215(L)/1990 were similar to those of Appeal No. 213(L)/1990 and again same authority i.e. Mr. M. Munir, C.E. had processed the case to award punishment of removal. This was totally mala fide and in my opinion/assessment, Mr. M. Munir had no concept of general admin1stration and in no way he justified his appointment as such. As brought out in Appeals Nos.162(L)/1983, 212(L)/1990, 214(L)/1990 and 215(L)/1990 and with some exception in Appeal No. 213(L)/1990 he had acted mala fide and victimised the appellant who was evidently made to aggrieve on this account to submit subject appeal to the Tribunal.

21. We have accordingly disposed of the appeals with one order through this judgment from my learned brother. Although I was more inclined for reinstatement of the appellant into the service, but some facts/merits only of Appeal No. 213(L)/1990 go in favour of the authority more than the appellant and this is a compelling reason for myself to go alongwith the judgment of my learned brother i.e. for compulsory retirement of the appellant instead of his removal from service.

109. A.A./796/Sr.F Order accordingly.