1988 PLC(CS) 897

DR. A.Q. QAZI (MEMBER).-- This appeal is directed against appellate order of Secretary Education Sind rejecting the departmental app filed against the order of Director of Schools Education, Hyderabad Region ordering the removal of appellant from the position of High School Teach Government High School Arazi District Dadu.

2. In order to appreciate the case it shall be necessary to give a required and relevant background of the case. Appellant joined Government service in Education Department as a S.E.T. (Senior English Teacher) in Grade-14 on 4-11-1987. He was confirmed as such and was later awarded selection grade (NPS-16) with effect from 2-12-1976 on basis of his seniority position in the H.S.T. cadre within the ratio of 30% of the total posts permissible under the Sind Government Servant (Non-gazetted) National Pay Scale of 1974. His post was further upgraded to Grade-17 w.e.f. 1-7-1983 in the subsequent revision of pay scales in 1983 as provided is said rules.

3. It is the plea of the appellant that he fell ill and was not in a position to perform his duties and he therefore applied for casual leave and then for medical leave and remained under treatment. He continued to be on medical leave right from 4-10-1982 to 25-8-1983 for which absence he produced medical certificate from Dr. Anwaruddin Mughal a R.M.P. and a separate certificate from Rural Health Care Project Kunri Hospital. It appears from the record (Annexure-N) of the appeal that he was allowed to resume his duties w.e.f. 26th May, 1983.

4. On part of the Government it has been averred in the: written reply that the appellant was transferred from Government Middle School Jamshoro to government High School Kotri at a distance of about 10 k.m but he did not join is new place of posting. He refused to hand over the charge to his successor Mr Sardar Ali. It is further averred in the written reply that since he did not obey the Sarders of the Government to resume his duties at the new place of posting anti proceeded on unauthorised (cave, disciplinary proceedings were initiated against him. It has been vehemently denied in the written reply submitted by the respondent that he was ever ill or that any application of Medical leave was ever received by the department. It is the plea of the respondents that illness was a concoction and afterthought. He had simply refused to accept the transfer orders and did not hand over the charge and sought refuge in false excuse of illness.

S. He was issued with first show-cause notice on 27-2-1983 which was made up of 3 charges (1) that he was inefficient, (2) he extracted illegal money from the student and their parents and collected donations unauthorised, and (3) that he not obey the orders of transfer. The appellant denied all those charges on 8-3 1983 (his reply is on record). There appears to be no further action to have been liken on this show-cause notice till such time he was issued second show-cause notice on 4-1-1984. This show-cause notice involved two charges i.e. he remained unauthorised absent from duties w.e.f. 4-10-1982 to 31-3-1983 and that for the period of unauthorised absence he continued to draw the salary.

6. He replied the 2nd show-cause notice on 10-1-1984 refuting the charges 0i illegal absence and illegal drawl of salary. He was issued a final show-cause Police on 22-5-1985 wherein it was stated that his replies to earlier show-cause notice were not satisfactory and that why he be not penalised and the money be not recovered from him for the period he remained unauthorisedly absent. He replied to the notice on 23-6-1985. His reply was considered and vide order No. Admn.II(3)/5368-74/85-88, dated 19-11'-1985/5-12-1985 he was removed and further ordered that an amount of Rs.8,306 drawn as salary for the period of his absence be recovered from his G.P. Fund. He appealed against the order which was considered by the Secretary Education as not satisfactory and his removal from service was upheld; however the 2nd penalty of attaching of Rs.8,366 from his G.P. Fund was not agreed to by the appellate authority. Penalty was, therefore, reduced to plain and simple removal from service. He has now filed the second service appeal.

7. We have heard the learned counsel for the appellant Mr. Muhammad Younus Behan and counsel for the State Mr. Imdad Hussain Qazi at a great length and we have also perused the record which was made available to us.

We now come to the merits of case in respect of facts and law and find the following issues which need to be determined:-

(1) Did the appellant proceed on leave authorisedly?

(2) Whether the appellant was entitled to the-leave applied for in accordance with Rule 13 of the Revised Leave Rules for Civil Servants of 1979?

(3) Whether the punishment of removal under the circumstances of the case was in consonance with the amount of misconduct involved?

We shall examine the facts and law points involved and shall try to reach a logical and just conclusion. We shall discuss issue No.1 first. The learned counsel for the respondents has drawn our attention to the fact that medical certificates produced by the appellant are forged and arranged ones. It has been vehemently contended in the written statement that the appellant had been transferred from Jamshoro where he had been collecting unlawful donations from the students and their parents. It is the contention of the respondents that in order to bring administration in order at Jamshoro lie was transferred to Kotrii, a place only 1.0 to 12 k.m. away from original place of posting which he did not join. We do find a reference of this in the first show-cause notice issued to him on 27th February, 1983. Since this charge of extortion of money was not repeated in the 2nd show cause notice issued to him on 4-1-1984, we shall only presume that the charge of extortion of money from students and parents stands dropped. Also appears to be dropped the charge of inefficiency to managing the affairs of the school at Jamshoro which does not find its place in the 2nd show-cause notice which superseded the first one. We shall, therefore, concentrate on the 2nd show-cause notice and find the charges which we reproduce: " remaining unauthorisedly absent from duty w.e.f. 4th October, 1982 to 31st May, 1983 i.e., 240 days, after your transfer from Government Middle School Jamshoro Colony to Government High School, Kotri as ordered by the District Education Officer (Boys) Dadu, vide his order No. Establishment (2)/84, dated 8th September, 1982 further you went on drawing salary of the absence period of 4 months i.e. October, November, December 1982 and January 1983 unauhorisedly without getting your leave salary bills countersigned by the Controlling Officer i.e. the Sub-Divisional Education Officer, Kotri."

In this para of show-cause notice we find two charges. Charge one is that he had defied the order of transfer and did not proceed to Kotri to join as directed. Second is that he p proceeded to draw the salary of the period of 4 months as stated i.e. October, 1982 to January 1983 unauthorisedly. We shall examine these charges on merits. It is the contention of the appellant that he had fallen sick and, therefore, he could not resume the duty at Kotri while at the same time he wrote a letter through proper channel to the Secretary Education, Government of Sind, Karachi on 4-10-1982 in which he had strongly protested against his transfer and had taken the plea that since he was a High School Teacher in Grade-16 and was elevated to Grade-17 ; by virtue of Revision of Pay Scale of 1983), he could not be transferred to a host of Grade-14 if he had any grievance of being posted against a policy order, he should have resumed his duties at Kotri first and then protested I against his new posting and even decided to proceed on leave of the kind due. Appellant did not do so and instead of joining at Kotri, put in first a casual leave, which he later converted into medical leave. We may however not lose sight of the fact that in a period of 5 months no notice was issued to him- to resume his duties nor was he told not to draw the salary until 27th February, 1983 when he was issued a first show-cause notice. It would, therefore, appears that, be for whatever reasons, he was not willing to resume his duties at Kotri and hence chose to be on unsanctioned leave from the period of 4-10-1982 to 26-.5-1083 when he was allowed to join the duties at Government 1-filth School .4razt as a High School Teacher. We, therefore, conclude that, for whatever be the reasons, he has defied the Government orders and did proceed on leave unauthorisedly.

9. We shall now return to issue No. 2 i.e. whether the appellant was entitled to leave applied for in accordance with rules. In order to understand and appreciate the legal position we shall reproduce para.13 of the Finance Department's Notification. No. FD(SR-II)15-47/87, dated the 5th June, 1979 which lays down the revised leave rules for Civil Servants. Rule No.13 is reproduced as under:-

"13. It shall not be necessary to specify the reasons for which leave has been applied, so long as that leave is due and admissible to a civil servant. Leave applied for on medical certificate shall not be refused. The authority competent to sanction leave may, however, at its discretion, secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the applicant medically examined."

We shall see this rule in light of the conditions and circumstances in which appellant had applied for leave. The appellant has forcefully pleaded that he had proceeded on a medical leave whereas the official respondent i.e. the Director of Education, Hyderabad Region has denied the contention or fact that the appellant had ever proceeded on medical leave. From the record we find a set of documents (Annexure `C' Annexure `D & S', Annexure `F, Annexure `G', Annexure `H', Annexure `R' and `J' of the main appeal), which are medical certificates from a qualified Registered Medical Practitioner. On the contrary the respondents totally deny the claim that appellant had ever applied for medical leave. The respondents have referred to one earlier appeal of the appellant which he had filed to this very Tribunal (Appeal No.33 of 1986) which was later on withdrawn by him on request. We have gone through the memo of his earlier appeal and find the reference of his illness in paras. No.IX and XII of the grounds of said (earlier) appeal. We are, therefore, reluctant to accept the view of the respondent that the appellant was riot at all sick and all the medical certificates are bogus and subsequently arranged. From the record that we have scrutinized, we are led to believe that the appellant could have been sick at some stage though he did not apply for it in the beginning. We do not find a genuine reason to believe that all medical certificate were fake, bogus or arranged. We, however, feel that if the appellant wanted to proceed on medical leave/leave on private P affairs he should have obtained leave froth the competent authority, which under normal and pressing circumstances would not have been denied as per the phrasing of the rule 13.

10. If we read para. No.20 of the written statement carefully, we find the latent admission to the fact that former Director of School Education, Hyderabad Region was inclined to treat the above allegedly unauthorised absence as leave due and admissible to the appellant. This is precisely so because that is why he made a reference to the Accountant-General, Sind for certifying the leave due. We have perused the papers and we find the communication from the Accountant-General, Sind dated 18-4-1985 which tells us that a leave of 193 days was admissible upto 30th October, 1982 in the account of the appellant. We also note that in the meanwhile a new Director took over the charge' who re-examined the case and decided to take a very serious view of the appellant's attitude. From all this we can conclude that though the appellant had proceeded on unauthorised leave, be it on private affairs or be it on medical grounds, his case for leave was considered at some stage and a process had been issued in this direction by the earlier Director of Education.

11. The second part of the show-cause notice dated 4th January, 1984 (Annexure `O' of the appeal) levels the charge that the appellant had drawn a full four months salary without the proper sanction while he was on unauthorised leave. The appellant has frankly admitted that the financial position of the appellant was the worst and he was lying on the sick bed with 9 more family members crawling for meals and medicines, and that he expected that his leave would be granted in accordance with Rule 13 of the Leave Rules. There is no dispute on this point. The appellant had admitted that he did draw the salary under extraordinary and compelling circumstances of starvation of his family and under mistaken belief that his leave would be granted. Though we may not subscribe to the view of the appellant but feel that if the appellant was under the mistaken belief that his leave would be granted in accordance of the phrasing of Rule 13, he may have drawn the salary under this wrong belief. We do not consider it to be a fraud of any kind and more so when 193 days earned leave was due to him and leave on genuine medical grounds could not be denied to him as per phrasing of the Rule 13.

Now we come to the 3rd and final issue which is the quantum of punishment. Appellant was employed on 4th November 1967 and has been removed from the service on 19th November, 1985. By this time he had 18 years of qualified service. Department has not charged him of being an ill character, desolate nor of being a fraud. We have given our best and considered thought to the case of the appellant and find a room for leniency in view of his long 18 years service. We are also aware of the fact that he has a family of more than nine persons to support. Under the circumstances we are of the view that the penalty awarded to him is indeed too severe and not in consonance with the guilt committed.

In view of the discussion led above under the issues laid down for consideration and in accordance with the accepted principle that the penalty awarded should be in consonance with the guilt committed, we are inclined to reduce the penalty awarded to the appellant, and accordingly substitute the present penalty of removal with reduction of time scale, namely: from BS-17 to BS-16, for a specific period of two years. We further direct that the period from removal of his service till today may be treated as leave extraordinary without pay. This appeal is partly allowed in above terms only.

A.A./163/Sr.S Order accordingly.