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Appeal No. 50 of 1978, decided on 15th April, 1979.

-----S. 4‑Removal from service‑Contention as to Secretary, Public Service Commission being not competent to pass order of appellant's removal from service he being same authority who complained against him and his action based on bias and also appellant being a Daftri, cannot be entrusted with duties of a peon‑‑Secretary, Public Service Commission, however, issuing show‑cause notice on report of Administ rative Officer, charge of bias not proved and disobedience to superiors established‑Appeal dismissed.

Daudul Hassan Khan for Appellant.

Assistant Advocate‑General for Respondent.

‑This is an appeal under section 4 of the Sind Service Tribunals Act,. 1973 against the order dated 16‑4‑1978 passed by the Secretary, Sind Public Service Commission, removing the appellant from service under rule 5 (3) (b) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, on the charges of misconduct. The appellant filed departmental appeal before the Chairman, Sind Public Service Commission on 14‑5‑1978 which was dismissed on 1‑6‑1978.

The appellant was served with a show‑cause notice on the charges of (i) refusing to obey the orders to work as a peon on two occasions, and (ii) remaining absent without authorised leave.

The counsel for the appellant raised the plea that the Secretary Public Service Commission was not competent to pass the impugned order as he was the same authority who had complained against the appellant and then passed the impugned order. In short, he tried to establish bias against the Secretary. In this connection he cited the Supreme Court's ruling of 196 and contended that since the impugned order was passed by the Secretary having biased mind against the appellant, the inquiry against the appellant should have been conducted by another officer lower in rank than the Secretary. His further contention was that the appellant having been appointed as "Daftri" could not be assigned the duties of a peon. Therefore, by not carrying out the orders of the Secretary, he had not disobeyed the orders. Regarding the appellant's absence from duty without proper sanction, he contended that the appellant had produced Medical Certificate from a registered Medical practitioner showing himself to be ill.

The learned Assistant Advocate‑General contended that the ruling of Supreme Court had no bearing on the case as it was based on the Constitu tion of 1962. He further argued that the bias alleged by the appellant against the Secretary had not been established, hence such an allegation carried no weight. Besides the departmental authority, being the Chairman of the Sind Public Service Commission, having decided the departmental appeal against the appellant could not have ignored the pleas taken by the appellant on the facts of the case. The learned Assistant Advocate‑General argued that the appellant could not refuse to work as a peon as he was neither reduced in rank nor his service conditions were altered to his dis advantage. The nature of work: assigned to any subordinate staff was not the condition of service to be agitated before this Tribunal.

We have heard the arguments and also examined the record of the case produced by the learned Assistant Advocate‑General and find that the Secretary had not issued the show‑cause notice on his own, but had based the issuance of show‑cause notice on the report of the Administrative Officer which reads as under :‑

"He has refused to comply with the orders of Secretary and has contended that he is Daftri, not a peon."

The authority of the Supreme Court is clearly distinguishable and is not applicable to facts of the present case. The Secretary had not given verbal order as was done in the case decided by the Supreme Court but it was routine order passed in writing by the incharge of administration.

Regarding the alleged bias of the Secretary against the appellant, we have come across the detailed order of the learned Chairman, Sind Public Service Commission passed by him on 1‑6‑1978 and furnished by the appellant himself with tile Memo. of his appeal. We quote the concluding para. of his order as under :‑

"Appellant appeared before me yesterday and urged that he worked as Daftri for about 8 years and the office order to work as peon was illegal. I explained to him that both Daftri and Peon belong to the same grade and as such his refusal to work as a Peon amounted to disobedience. He had persistently refused to work as peon and proceeded on leave for short period, details of which are mentioned in the letter and show‑cause notice. No action has been taken so far against him for remaining absent.

He further pleaded that no enquiry was held and nor any Enquiry Officer or Committee was appointed Apparently there was no necessity for appointing Enquiry Officer/Committee as he had admitted till yesterday that he refused to work as peon.

As regards punishment, I consider it to be not severe punishment, Continuous disobedience of the proper authority deserves such punishment."

This order passed by the Chairman of the Commission is a complete answer to the contentions raised by the learned counsel of the appellant about the bias of the Secretary against the appellant. This order further establishes charge No. 1 against the appellant for refusing to work as a peon at any stage.

The charge of misconduct is, therefore, proved. against him and consequently the appeal is dismissed.

Regarding his second charge of being absent from duty and remaining on unauthorised leave, no penalty has been imposed by the Secretary or by the departmental Appellate Authority. Hence we pass no order.

Appeal dismissed.

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