MUHAMMAD SHARIF ABID Versus REGIONAL COMMISSIONER, INCOME-TAX NORTHERN REGION, ISLAMABAD

CH HASAN NAWAZ (MEMBER).‑‑‑ After his departmental appeal addressed to Member (Finance) WAPDA, Lahore on 12‑2‑1989 was rejected, the appellant, who was in WAPDA's service as Assistant Budget & Accounts Officer, filed the present appeal under section 4 of the Service Tribunals Act. 1973 to challenge the validity of the order of his removal from service passed by the competent authority (General Manager Finance) on 7‑1‑1989 consequence of proceedings under the Pakistan WAPDA Employees Efficiency & Discipline) Rules, 1978. This order was communicated to him by Director Accounts (Admn.) Power through letter dated 14‑1‑1989, which has been assailed in this appeal.

2. Letter dated 14‑1‑1989 bears out that the impugned order of removal from service was passed by the competent authority after due consideration of (a) letter of explanation dated 1‑12‑1987 alleged to have been served upon the appellant, (b) show‑cause notice published in WAPDA weekly Khabarnama dated 6‑2‑1988, (c) show‑cause notice dated 12‑3‑1988, (d) the appellant's explanation in writing to this show‑cause notice, (e) report of Inquiry Officer received through Letter No. Conf. 2/9174/SR.B&AO/GSO‑HYD, dated '29‑9‑1988, and (f) comments of Manager Finance (T&GS), dated 13‑71‑1988.

3. The following allegations were made in the letter of explanation, dated 1‑12‑1987:

"(1) That you absented yourself from duty w.e.f. 12‑7‑1987 and also applied for two months earned (cave through telegram. You were directed by the Executive Engineer (Warehouse), Kotri vide his Letter No. XEN/WMKJ/1123‑25, dated 20‑9‑1987 and also Manager Finance (T&GS) Letter No. 4558‑60, dated 15‑9‑1987 to appear before Medical Board at Hyderabad, but you did not appear for medical examination as reported by Medical Superintendent, WAPDA Hospital, Hyderabad vide his Letter No. W/Hosp/MS/Medical Board/2/Vol‑14/1103, dated 14‑10‑1987. Therefore, you are willfully absconding and you have rendered yourself guilty of misconduct under WAPDA (E&D) Rules, 1978.

(2) It has been reported by XEN (GSO), Warehouse, that you are unwilling and inefficient worker."

4. Show‑cause notice dated 12‑3‑1988 admitted by the appellant to have been received by him was to the following effect:

"You were directed to explain your position vis‑a‑vis your unauthorised absence from duty vide this office Letter No. 4934/GMF/Admn/PF‑4221, dated 1‑12‑1987 but you neither bothered to submit your explanation nor resumed duty despite publication of notification in the WAPDA Khabarnama dated 6‑2‑1988, directing you to resume duty, failing which ex parte action under E&D Rules would be taken against you.

In consideration of your wilful absence from duty the undersigned being the competent authority under E&D Rules has decided to provisionally impose upon you the major penalty of removal from service under clause 4(i)(b)(iii) ibid with the direction to show‑cause notice in writing within 7 days of the receipt of this notice as to why the proposed penalty should not be finally imposed upon you. Also state if you want to be heard in person. In case of your failure to submit reply to the subject notice within the stipulated period it shall be presumed that you have nothing to say in your defence and the proposed penalty will be finally imposed upon you without further notice.

(Sd.)

General Manager (Finance)

WAPDA House, Lahore."

5. In his explanation in writing to show‑cause notice dated 12‑3‑1988 it was pleaded by the appellant that he never received letter of explanation dated 1‑12‑1987 and he cannot, therefore, be held responsible for non‑compliance of the direction to appear before the Medical Board at Hyderabad. He further explained that the envelope containing this notice of 1‑12‑1987 as well as another envelope containing letter of explanation dated 13‑1‑1988, were put together in a bigger envelope by the XEN (WAPDA) Warehouse, Kotri and mailed to him on 24‑3‑1988. This envelope containing the other two was received by him on 27‑3‑1988. Alongwith the explanation, he claimed to have enclosed photocopies of this bigger envelope mailed from Hyderabad to his Khairpur address and the other envelope addressed to him through XEN Kotri. The appellant alleged that the XEN did not send those smaller envelopes containing letters of explanation dated 1‑12‑1987 and 13‑1‑1988 to him. His case is that the proof of this allegation is that the smaller envelopes containing these letters we received by him in a bigger envelope on 27‑3‑1988. He further stated in his explanation that even according to the record of XEN Kotri, he was neither served with nor otherwise informed of the earlier letters of explanation dated 1‑12‑1987 and 13‑11988.

6. The explanation regarding absence was that he could not attend his duty because of illness. On 11‑7‑1987 he applied for casual leave for the period from 12‑7‑1987 to 21‑7‑1987, which was allowed to him and he was directed to hand over the charge of his post to Accounts Assistant Mr. Samad of the same Division. Thereafter, he sent telegrams dated 21‑7‑1987, 20‑8‑1987, 23‑9‑1987, 14‑11‑1987, 2‑1‑1988 and 21‑2‑1988 for extension of leave on medical ground. These telegrams were followed by application dated 17‑3‑1988 alongwith photocopies of the medical certificate purporting to have been issued either by Medical Officer Khairpur or Civil Surgeon, Civil Hospital, Khairpur. He further submitted in his explanation that he never received any intimation from the XEN regarding the fate of his telegrams or the application for extension of leave. He said that with the exception of letter dated 24‑2‑1988, he never received any letter purporting to have been addressed by the Head Office at Lahore. The defence is that under the circumstances he could not appear before the Medical Board. According to his case he was never called upon to present medical certificate before any such Medical Board for medical examination.

7. A reference may also be made to the allegations made in para. 4 of the grounds of appeal to the effect that he made application for casual leave for the period from 12‑7‑1987 to 21‑7‑1987 where he mentioned his home address as H. No. 1777, Punj Hatti, Khairpur. In paras 3 and 4 of written objections, the respondents did not plead to these allegations. They did not say anything about whether this application for leave was made and duly sanctioned by the XEN as alleged by the appellant. The respondents' pleadings are that he "absconded on 12‑7‑1987 and requested for two months earned leave through telegram", whereupon "he was directed to appear before Medical Board WAPDA Hospital, Hyderabad vide XEN Warehouse Kotri's Letter dated 20‑9‑1987 for medical checkup".

8. This application for leave has been placed by the appellant on record (Annexure C). It shows that he did make a request for leave from 12‑7‑1987 to 21‑7‑1987 with permission to leave the Headquarters on 11‑7‑1987. This application appears to have been signed by him on 11‑7‑1987. We find an endorsement of the XEN, which asked him that he should hand over charge of his functions to Mr. Samad "till your arrival". This endorsement is a clear proof of the fact that the request for leave was allowed by the XEN. This apart, even from the respondents pleadings in paras. 3 and 4 of the written objections it can be very clearly inferred that the application for leave was made and granted. This being so, there is no substance in the allegation that he absconded from 12‑7‑1987 and then requested for two months earned leave through a telegram.

9. As we have noticed before, it is also in the respondents' pleadings that he was directed to appear before Medical Board WAPDA Hospital, Hyderabad through XEN Kotri's Letter dated 2l)‑9‑1987. The appellant has alleged that he never received this letter: Here again we find that the appellant's allegation is not without substance. A reference may be made to letter, dated 24‑2‑1988 (Annexure P) addressed by XEN, WAPDA, Warehouse Kotri to Manager Finance, WAPDA House, Lahore. In this letter it was stated by the XEN that the appellant had not informed about his home address and that it was nowhere in his personal file. This, however, is contradicted by the fact that he informed the XEN of his home address in his application for leave dated 11‑7‑1987, which was granted by him. Leaving this aspect of the matter aside, the XEN's assertion that his home address was not in his knowledge, amounts to a proof of the fact that the letters of explanation issued by the head office on 1‑12‑1987 and 13‑1‑1988 were not despatched to the appellant.

10. Reference may i6 'be made, on the point under discussion, to the respondents' pleadings, which involve an admission of the fact that these letters were not sent to the appellant. It has been pleaded in the written objections that even if the address was available the notices and other letters addressed to him by Manager Finance (T&GS) should have been passed on to the appellant by the XEN (GSA) Warehouse, Kotri who being in complicity with the appellant failed to despatch the letters and communications from head office to appellant. Had the appellant address been available with XEN (G SC) Warehouse, Kotri, he would have sent all the letters and directive to the appellant. These pleadings leave little room for any doubt that the appellant never received the letters of explanation issued by the head officer. This being so, it is not difficult to find that he cannot be held responsible for his non appearance before the Medical Board.

11. We have taken notice of the fact that the impugned order of removal from service dated 7‑1‑1989 is alleged by the competent authority to have been based on due consideration of certain documents including the letters of explanation dated 1‑12‑1987 and show‑cause notice published in WAPDA weekly Khabarnama dated 6‑2‑1988. We have found in the preceding paragraphs that this letter of explanation was never received by the appellant. About the notice published in weekly Khabarnama of 6‑2‑1988 it can reasonably be assumed that it never came to the notice of the appellant. The result is that he did not receive the letter of explanation or the notice of 6‑2‑1988, which, according to the competent authority, have inter alia, made a basis for the order of removal from service. Notwithstanding other circumstances, the impugned order appears to be unsound on this ground alone.

12. There is another fact worth notice. The impugned order shows that the report of the Inquiry Officer" alleged to have been received through letter dated 29‑9‑1988, was also taken into consideration by the competent authority in coming to the conclusion that the appellant's absence from duty was willful and without any justification. It is an admitted fact that the competent authority proceeded against the appellant under Rule S(iv) of the Rules after a finding that it was not necessary to have a inquiry conducted in the matter either through an Inquiry Officer or Inquiry Committee. Therefore, summary procedure of service of notice under this rule was adopted. If, according to the competent authority, no enquiry was required in the matter, there is no reason why an inquiry should have been made and why the report of any such inquiry could justifiably be made a basis for the impugned order. It was stated at the Bar by the respondents learned counsel that no regular inquiry was held and that in actual fact Mr. Habibullah Hussaini, Senior Budget & Accounts Officer was sent to XEN at Kotri to verify the fact if any telegram had been sent by the appellant with a medical certificate. We hardly see any difference between verification and inquiry. Both serve the same purpose. Be that as it may, the report of Mr. Hussaini seems, amongst other things, to have influenced the competent authority to the passage of the impugned order. We feel no hesitation in saying that this report could not be taken into consideration because the verification or the inquiry, whatever name may be given to it, was held in the absence of the appellant. He was never associated with any such inquiry.

13. We have already taken notice of the fact that the appellant denied in his explanation in writing to show‑cause notice dated 1‑12‑1987 that he received the earlier letter of explanation and the show‑cause notice. His case is that after once having gone on casual leave on 11‑7‑1987, he fell ill and then asked for extension of leave on medical ground through various telegrams which were followed by application dated 17‑3‑1988. He attached photostat copies of medical certificate with the application. In view of this explanation, there is no doubt about the fact that he set up a counter‑version as justification for his absence from the office. We are of the view that under the circumstances, it was a case of regular inquiry, which could be possible only if the competent authority had chosen to proceed against him under Rule 5(iii) rather than Rule 5(iv) of the Rules, as has been done in this case. In the course of regular inquiry, it could have been possible for the appellant to establish that his failure to attend the office was not deliberate and rather due to illness. In this view of the matter, we hold that the appellant has not been given an opportunity to show‑cause against the action proposed to be taken against him and that the competent authority's failure to proceed under Rule 5(iii) has obviously resulted in miscarriage of justice. That it was a case of inquiry is also borne out from the fact that the competent authority thought it necessary to depute Mr. Hussaini to go to the XEN's office for verification of facts. Although the respondents' learned counsel insisted on the use of word verification during the course of argument we find from respondents' pleadings in paras. 11 and 13 of the written objections that the competent authority got "the matter investigated by the Inquiry Officer" and that "appellant" was proceeded against in the light of the findings of the Inquiry Officer which clearly established him guilty of misconduct in the provisions of Efficiency & Discipline Rules".

14. We might as well deal with the question of limitation. The rejection of departmental appeal was communicated to the appellant on 4‑5‑1989, whereas the present appeal was filed on 6‑7‑1989. The reason mentioned by the appellant for this delay is that he could not file the appeal in time because of his own illness for the period from 1‑5‑1989 to 30‑6‑1989 as also that of his wife who is now totally crippled and unable to move. The appeal is accompanied by an application for condonation of delay supported by an affid4vit. There is no reason why it should not be believed. The delay in filing the appeal is, therefore, condoned.

15. For these reasons, the impugned order of 7‑1‑1989 conveyed to the appellant by letter dated 14‑1‑1989 is set aside in acceptance of the appeal. However, the respondents shall be within liberty to initiate fresh proceedings under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules from the stage whence the mistake can be rectified. They might serve him with a charge‑sheet by proceeding under rule 5(iii) of the Rules. In case the disciplinag proceedings are not started afresh within two months of the date of this order, the appellant shall then be deemed to have been reinstated in service with all consequential benefits. No order as to costs. Parties may be informed.

A.A. /761/Sr.F

Appeal accepted.