GHAZANFAR HUSSAIN CHANGEZI vs SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN ISLAMABAD and 2 others
This petition for leave to appeal challenged a Federal Service Tribunal judgment that modified the petitioner's dismissal from service to compulsory retirement. The petitioner, a Sub-Inspector in the Federal Investigating Agency, was penalized for failing to attend mandatory training courses due to the non-payment of travel allowance (TA/DA) in advance and for unauthorized absence. The core legal question was whether the imposition of a major penalty, such as compulsory retirement, without conducting a formal inquiry as mandated by the relevant disciplinary rules, is legally sustainable. The Supreme Court held that the Tribunal's judgment was unsustainable. The Court set aside the impugned order, reinstated the petitioner, and allowed the department to hold a fresh inquiry if deemed necessary. The key principle laid down is that under the Government Servants (Efficiency and Discipline) Rules, 1973, the imposition of a major penalty against a civil servant requires a mandatory, full-fledged regular inquiry, ensuring the principles of natural justice, including the right to defense and personal hearing, are strictly observed before any such penalty can be lawfully imposed.
- Is a regular inquiry mandatory under the Government Servants (Efficiency and Discipline) Rules, 1973, before imposing a major penalty on a civil servant?
- Does the failure to attend a training course due to non-payment of travel allowance constitute misconduct justifying a major penalty?
- Can a major penalty be imposed on a civil servant without providing an opportunity for defense and personal hearing?
- Rule 6, Government Servants (Efficiency and Discipline) Rules, 1973
- Rule 5.25, Manual of Travelling Allowance Rules
Abdul Hameed Dogar, J.--This petition for leave to appeal is directed against the judgment dated 31.8.2002 passed by the learned Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal') whereby appeal filed by petitioner Ghazanfar Hussain Changezi was allowed and the order of his dismissal from service was modified to that of compulsory retirement.
2. The background leading to the filing of the instant petition is that petitioner, who was working as, Sub-Inspector in Federal Investigating Agency, Karachi, (hereinafter referred to as `FIA') was directed to proceed for training in FIA Academy, Islamabad in the year 1997. But he could not attend the said course on account of shortage of funds as the request of petitioner for grant of TA/DA in advance was declined. On 1.3.1997, he was transferred from Immigration to Zonal Office, where he did not report but remained absent for 27 days. He had applied for 15 days leave which was not allowed and was required to appear in person before the Director but did not appear as according to him, he could not get such information. The case of petitioner further is that in response to the letter of the department, he replied in urdu version which annoyed them whereby penalty of stoppage of four yearly increments were awarded against him. He was again required to proceed to Islamabad on 19.9.1998 for 8th Training at FIA Academy but he did not attend the same on the same ground of non-receipt of TA/DA advance. In response' to final show-cause notice, he appeared before the authority and as soon as entered his Chamber, the order of his dismissal was announced. He appealed against the said order to Respondent No, 1 but, remained unresponded.
3. We have heard M/s. Muhammad Akram Sheikh, Senior ASC and Sahibzada Murad Karim Abbasi, learned ASC for the petitioner and Ms. Nahida Mahboob Elahi, learned Standing Counsel for respondents and have gone through the record and the proceedings of the case in minute particulars.
4. Mr. Muhammad Akram Sheikh, learned Sr. ASC for petitioner vehemently contended that judgment of the Tribunal is not sustainable in law as on the one hand, it has been held in the judgment that there is provisions of making payment of TA/DA in advance yet on the other hand, petitioner has been punished with major penalty of compulsory retirement from 10.9.1999 for failure to attend Upper Level Promotion Course at FIA, Islamabad. According to him, refusal to attend promotion training due to non-payment of TA/DA in advance, could not at all constitute as a degree of misconduct punishable with major penalty of removal or compulsory retirement. As regards the absence of 27 days from duty, learned counsel stated that petitioner had applied for 15 days leave which was not granted and in consequence whereof he was punished and four annual increment were stopped. He lastly contended that in the case of petitioner, no full-fledged inquiry as contemplated under Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as 'Rules 1973'), has been made, as such, the penalty of dismissal from service is not only illegal but against the rules of natural justice. In support of his contention, he placed reliance upon the case of Federation. of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad, and another v. Noor Jamal Ex-Executive Engineer (2004 SCM R 294).
5. On the other side, Ms. Nahida Mahboob Elahi, learned Standing Counsel for respondents controverted the above contentions and argued that from the conduct of petitioner during his service, it is clear that he had all along remained disobedient. In spite of several opportunities to join Advance Training Course for the purpose of promotion, he declined the same merely on the ground that he should be paid TA/DA in advance. Irrespective of the above, he had remained absent for 27 days without any justification and when show-cause notice was served upon him, he in reply whereof passed certain objectionable remarks against his superiors in Urdu. Since it was a matter of record that he refused to join Academy, as such, there was no need for holding regular inquiry.
6. Admittedly, no allegation of corruption or corrupt practice has been levelled against petitioner throughout his service. He has been awarded major penalty only for non-attending the Advance Training Course at FIA Academy, Islamabad. According to Rule 5.25 of the Manual of Travelling Allowance Rules, travelling allowance is allowed to the Government servant who has to undergo a course of training, a competent authority may allow him to draw travelling allowance, as per scale decided by it, for the original journey to and the last journey from the place of training and for halts at such place. The travelling allowance may also be granted for holidays and vacations and journeys during the course of training. Irrespective of above he being a Government servant, his services are to be governed under the Rules 1973. Rule 6 of the, Rules 1973 clearly stipulates that in case of awarding a major penalty, a proper inquiry was to be conducted wherein a delinquent officer is provided an opportunity of defence and personal hearing after issuing him show-cause notice and filing of his reply thereto and if the charges were proved in the regular inquiry, thereafter, he be penalized. In this context reference can be made to the cases of Inspector- General of Police, Police Headquarters Office, Karachi and two others v. Shafqat Mehmood (2003 SCM R 207) and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer (2004 SCM R 294), wherein this Court has held that in case of imposing a major penalty, the principle of natural justice requires that a regular inquiry is to be conducted in accordance with Rule 6 of the Rules and an opportunity of defence and personal hearing is to be provided to Civil Servant proceeded against.
7. Above are the detailed reasons of our short order dated 28.6.2004 which is reproduced as under: "For the reasons to be recorded liter on, the petition is converted into appeal and the same is allowed. Impugned judgment dated 31.8.2002 of Federal Service Tribunal, Islamabad, passed in Appeal No, 43(K)(CS)/2000 is set aside. Appellant Ghazanfar Hussain Changezi, is reinstated and this be done within a week. However, Respondent No, 2 Director General, FIA, Islamabad, may hold fresh inquiry, as required under the law, on the basis of facts of this case, if he deems so necessary."