MASHOOQ ALI Versus MEDICAL SUPERINTENDENT, CHANDKA MEDICAL COLLEGE HOSPITAL, LARKANA

1. GHULAM MUJADID ISRAN (MEMBER).‑‑‑ The appellant Mashooq Ali has brought this appeal to this Tribunal to impugn the Order No. CMCHL‑E(PF)/2357/60, dated 30‑3‑1987 passed by the Medical Superintendent, Chandka Medical College Hospital, Larkana by which his services were terminated as Ward Servant on account of his misconduct.

2. The relevant facts of the case are that the appellant was serving as Ward Servant in Chandka Medical College Hospital, Larkana since 12‑10‑1985. He was issued show‑cause notice dated 21st January, 1987 by the Medical Superintendent of the College Hospital under Sindh Civil Servants (E&D) Rules, 1973 (hereinafter called the said rules) on account of his irregular performance. The appellant submitted his reply to the show‑cause notice (hereinafter called the notice) and denied such allegations. His services were thereafter terminated vide the Order No. CMCHL‑E(PF)/2357/60, dated 30‑3‑1987. The appellant challenged the said order in a departmental appeal which was considered and rejected by the competent authority. Such decision was communicated to the appellant vide the Medical Superintendent, Chandka Medical College Hospital, Larkana endorsement dated 25‑11‑1992. Having failed to obtain relief at departmental level he approached this Tribunal by filing the present appeal.

3. We heard Mr. Abdul Sattar Mughal for the appellant and Mr. Habibur Rasheed for the official respondents with their assistance we went' through the relevant record.

4. The show‑cause notice dated 21‑1‑1987 is reproduced because of its importance with regard to the allegations levelled against the appellant:

5. "In exercise of the powers conferred by Rule 5 read with sub‑rule (5) of the Sindh Civil Servants (E&D) Rules, 1973, 1, Dr. Akbar Haider Soomro, Medical Superintendent, Chandka Medical College Teaching Hospital, Larkana (charge you) on the following grounds:

(1) You are irregular in performance of your duties and as reported by Registrar 6f the Ward, you are in habit of leaving the ward without information.

(2) I, therefore, inform you that on the above grounds it is proposed to take disciplinary action against you under Sindh Civil Servants (E&D) Rules, 1973, and you are accordingly called charge‑sheet, why action should not be taken against you and why the major penalty should not be imposed upon you.

(3) Your reply of the show cause should reach through Deputy Medical Superintendent, 11, CMC Teaching Hospital, Larkana within 7 days of. the receipt of this notice falling which it will be presumed that you have denied to offer any explanation."

6. If the notice is minutely perused it is silent whether the competent authority had dispensed with the regular enquiry in the case. However, it appears in para. 4 of the written statement that the enquiry was not conducted in the matter and for that no cogent reason has been given. The extracts of para. 4 are as under:

7. "4. Regarding para. 4, it is submitted that it was already proved that the appellant was irregular and unwilling worker, hence no enquiry was conducted. However, personal hearing was given to him on 23‑2‑1987 and his explanation was not satisfactory."

8. It appears that the action, against the appellant, was initiated under sub‑rule (4) of Rule 5 of the said rules which is reproduced as under:‑

9. "5. Inquiry procedure ‑‑ ‑The following procedure shall be observed when a civil servant is proceeded against under these rules:‑

(1) ..

(2) .

(3) .......................................................

(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved, and

(a) .

(b) If it is proposed to impose a major penalty he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of &a + 64H the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed, and the authority shall pass orders as it may deem proper."

10. The question arises whether the requirements of the above rules were fulfilled before the competent authority had passed the impugned order. In this case the record bears out that the competent authority was left with show-cause notice and explanation furnished by the appellant to the notice to determine about proof or otherwise of the charge. The show‑cause notice obviously contained the charges which were denied by the appellant. The relevant portion of his reply is reproduced as under:‑ .

11. "(1) That the charges levelled against me that I am irregular in performance of my duties and in the habit of leaving the ward without information, are hereby denied. I accept my own duties and responsibility, and am performing my duties regularly, and punctually and have never given any chance of complaints to my superiors:"

12. We do not understand how the competent authority on the basis of the above two documents would come to the conclusion that charges had been proved against the appellant. We are therefore of the view that such material cannot be considered as sufficient proof of the alleged charges.

13. Even on merits of the case the allegations against the appellant, as stated in the notice, that he was irregular in performance and in habit of leaving the ward without information, are vague. Neither any instance has been quoted to justify the allegations nor specific period of his unauthorised absence has been mentioned in the notice. Such allegation therefore cannot be taken into consideration for awarding major penalty.

14. It was also brought to our notice that no second show‑cause notice was issued to the appellant as provided under proviso in sub‑rule (4) of rule 5 of the said rules. Such material omission had rendered the proceeding invalid. The said proviso is reproduced as under:‑

15. "Provided that the Authorised Officer shall, subject to proviso to sub rule (3), before imposing minor penalty or recommending imposition of major penalty, as the case may be, by notice accompanied by a copy of the enquiry report, if any, intimate the accused of the aforesaid penalty and grounds therefore and call upon him to show cause within a fortnight of the notice why the proposed penalty should not be imposed or, as the case may be recommended and the reply, if any, to the said notice shall be taken into consideration before imposing or recommending a penalty."

16. For these reasons we accept the appeal with no order as to costs; and set aside the impugned order dated 30‑3‑1987. On his reinstatement, the appellant would however not be entitled to claim any arrears of salary etc. for the period he had not rendered any service. The entire period right from the date the impugned order was passed upto the date of his reinstatement would be treated as extraordinary leave.

17. H.B.T./390/Sr.S Appeal accepted.