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Case No. 671/1052 of 1984, decided on 19th May, 1985.

‑‑Dismissal for misconduct‑Judicial enquiry ‑ Whether can be relied‑Medical Officer of Jail refusing to attend a convict in serious condition on excuse that having not been provided residential accommodation of his status at Jail premises was residing at a distance of 5/6 miles‑Refusing to participate in departmental enquiry on plea that he had no confidence in Enquiry Officer Circumstances indicating that accused could either use his own scooter or could have hired any other mechanical transport and reached Jail to attend seriously suffering convict‑Rules of Jail debarring Superintendent of Jail to shift such convict to any hospital without certificate of Medical Officer‑ Convict expiring before getting any medical care or treatment‑Perusal of Enquiry report indicating that Enquiry Officer was not inimical to accused and accused had no justification to keep away from proceedings -Besides departmental enquiry matter subjected to Judicial Enquiry by a Magistrate and report thereof indicating that personal comforts were more dear to accused than human life and it was due to his insubordination and hatred for his officers that deceased remained unattended for five long hours‑Suggestion of bias against such Magistrate‑Verdict of Magistrate, in circumstances, held, to be taken with a pinch of salt and reliance could safely be placed upon it Tribunal refusing to interfere and dismissing appeal Punjab Service Tribunals Act (IX of 1974), S. 4.

Riaz Anwar for Appellant.

A. G. Humayun, District Attorney for Respondents.

.‑Dr. Capt. Munawar Tahir Hussain has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Secretary, Health Department, Civil Secretariat, Lahore and Agha Muhammad Ali, Superintendent Jail, Mianwali (former Superintendent New Central Jail. Multan) as respondents.

2. By virtue of this appeal he has prayed that the impugned order, dated 21st April, 1984, be set aside and he be re‑instated in service with all back benefits.

3. Brief facts of the case are as under

That the appellant while working as Medical Officer Rural Health Complex Chak No. 8/11 (no undergoing D.P.H. Course) was served with a charge‑sheet vide letter, dated 7th December, 1982, by the Deputy Director Health Services, Multan Division, Multan, through the Principal, College of Community Medicines, Lahore. He submitted his reply on 30th December, 1982, through the Principal, College of Community Medicines, Lahore. As the said reply was not found satisfactory the Deputy Director Health /Authorised Officer vide his order, dated 29th March, 1983, appoint ed Dr. Asadur Rehman, Medical Superintendent District Headquarter Hospital, as Enquiry Officer under rule 6(2) of the Efficiency and Discipline Rules, 1975, who conducted the enquiry against him. The Enquiry Officer submitted his report to the Authorised Officer who on considera tion of the report of the Enquiry Officer, found that the charge of misconduct stood proved against the appellant, therefore, he was supplied with the report of the Enquiry Officer and be was afforded opportunity of personal hearing before the Secretary, Health Department. For this purpose he was advised to appear before the Secretary on 19th January, 1984 in his Chamber. After giving him personal hearing the Secretary Health was pleased to impose upon him major penalty of compulsory retirement with immediate effect vide impugned order, dated 21st April, 1984. He filed representation before the said authority on 30tb April, 1984 and after waiting for 90 days he has come before this Tribunal. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case care fully with their assistance.

5. Before we enter into the subject‑matter of this case so made out by the learned counsel for the appellant, it will be useful to mention that the appellant had impleaded at a later stage Agha Muhammad Ali, Superintendent Jail, Mianwali (formerly Superintendent New Central Jail, Multan), therefore, he was asked to make comments as a number of allegations of personal malice were levelled against him.

6. Learned counsel for the appellant has submitted that he was not provided with a copy of the inquiry report, therefore, the case against him would stand vitiated as held by their Lordships of the Supreme Court of Pakistan in Meer Muhammad v. N.‑W.F.P. Government (P L D 1981 S C 176). It has been further argued that the appellant was not associated with the inquiry proceedings and the enquiry was conducted at his back. Learned counsel for the appellant has made a grievance that the Enquiry Officer had neither associated with him in the enquiry nor he had discussed the evidence on which he has so relied against the appellant. With regard to the merits of the case learned counsel for the appellant has submitted that the appellant did not commit act of negligence at all as he was informed by the Assistant Lady Superintendent and Hamid Saeed, Dispenser that Mst. Martha convict's condition was very serious, but as the appellant was at a distance of 6 to 7 miles New Central Jail and had no transport available to go to the spot, therefore, he could not be considered negligent for not attending the said Mst. Martha, who was in precarious condition in the said Jail premises. Learned counsel for the appellant has alleged malice against the appellant of Agha Muhammad Ali, Superintendent Jail at the relevant time and has submitted that he had concocted all this case against him, therefore, the same may be struck down on the point of malice. With regard to the allegation that Mst. Martha could not be sent to Nishter Hospital Multan, learned counsel for the appellant has submitted that the Superintendent Jail did not make arrangements therefore, this sort of allegation was baseless.

7. Learned District Attorney has adopted the comments of the Department in extenso and has vehemently denied that the appellant was not provided with a copy of the inquiry report. It has been further submitted that judicial inquiry was also held in this case and copy of the same was duly provided to the appellant. Learned District Attorney has taken exception to the plea of the appellant that his review petition remain ed unanswered by submitting that his review petition was rejected by the competent authority and he was informed by the Department vide registered letter, dated 3rd September, 1984, appended as Annexure 'D'.

8. With regard to the claim of the appellant that he had not been associated with the inquiry proceedings, it has been submitted by the learned District Attorney that he himself kept away from the inquiry pro ceedings as he did not attend the same and expressed his no‑confidence against Enquiry Officer and positively conceded in his application, dated 16th January, 1984 addressed to the Secretary, Health Punjab that he received intimation to join the inquiry proceedings.

9. With regard to the merits of the case learned District Attorney has submitted that whatever plea of the appellant was, ho was under obligation to attend to convict patient Mst. Martha who was lying uncons cious in Jail and his plea that he was staying at a distance of 5/6 miles was hardly a plea acceptable or tenable. Learned District Attorney has empha sized that he was not living in Jungle or at far‑flung place where no transport facility was available to him to reach the patient, whereas the appellant was stationed in Multan city and could easily arrange a Taxi or any other transport of that kind and could have later on charged from the Department, if he was entitled to charge the same. It has been pointed out that he had a scooter at that time when the information was so received by him. With regard to the plea of the appellant that the appel lant should have straightaway rushed to the Nishter Hospital, learned District Attorney has submitted that no patient could be rushed to the hospital under the rules without the permission of Superintendent Jail and it was he who had to rush to furnish medical advice.

10. With regard to the malice against Agha Muhammad Ali, Superintendent Jail at the relevant time, learned District Attorney has submitted that the said officer has submitted his reply running into eight typed pages and disowned all such allegations so made against him. It has been further pointed out that this case came in judicial inquiry held by a person holding the rank of a Magistrate and he also found the appellant guilty of the charges.

11. We have given our anxious thoughts to the arguments advanced by the parties and find that the appellant was provided with a copy of the inquiry report and his grievance is absolutely unjustified on this account. We have also taken into consideration report of Ch. Ghulam Dastagir, Magistrate 1st Class, Multan, dated 19th July, 1982, who found as under :

"In the light of the above evidence I have arrived at the conclusion that Mrs. Martha has died a natural death. Being Muslims it is our belief that her death could not be avoided but I am constrained to say that inhuman treatment has been given to her at the time of death. From 5 to 10 p. m. she was lying unconscious at the mercy of a dispenser, who did not know what medicine could be given. There was a Medical Officer to whom personal comforts were more dear than the life of a human being. He could perform his duty only if he was provided a house or transport by his officer. Each word of his statement indicates his hatred towards his officers. I am of the opinion, that it was due to his insubordina tion and hatred for his officers that the deceased remained unatten ded for five long hours in the Jail Hospital."

This report being from a Magistrate 1st Class against him, there is nothing on record to show even from the side of the appellant that he was a biased officer, therefore, his verdict was to be taken with a pinch of salt, therefore, we are of the considered opinion that reliance can safely be placed on his verdict against the appellant.

12. We have also carefully perused the report of the Enquiry Officer' which has been relied on by the competent authority who held the appellant guilty of 'misconduct. The perusal of the said report shows that the Enquiry Officer was not inimical against the appellant, the appellant had no justification to express lack of trust in him and keep away from proceedings and then make a statement that he was pro ceeded ex parte:

13. With regard to the merits of the case it is on record that Mst. Martha a convict, patient fell down unconscious in Jail and the appellant was immediately contacted and was asked to reach at the spot to give her medical assistance. The appellant was living 5/6 miles away from Jail but his refusal to attend her at the spot unless he would be provided with a transport, was positively an act of a very callous nature. As a Medical Officer and also on humanitarian ground, he should have used his scooter which was available with him to save the life of a human being and could later on claim any compensation, if anything was due to him. While arguing his case alongwith his counsel, the appellant submitted that his scooter was out of order at that particular time but this plea is hardly tenable in view of the fact that he was living in a populated locality and he could have arranged a mechanized transport to reach the patient and then claim any expense so incurred by him in this behalf. We cannot remain oblivious of the fact that in the Prisons Rules, a patient cannot be taken to hospital without the permission of the concerned Medical Officer (appellant) who was Medical Officer of the said Jail. His plea that number of ocher patients had also been taken to hospitals in such circumstances without the permission of Medical Officer, can hardly of any avail to him, because it was his duty to advise them to take the patient to the hospital for her examination whereas he asked Lady Assistant Medical to take the patient to Nishter Hospital.

14. With regard to the allegation of malice of Agha Muhammad Ali, Superintendent Jail at the relevant time, we hardly find it convincing as the inquiry was held by Health Department and not by the said Agha Muhammad Ali. The appellant belonged to the Health Department and posted in the Jail and was held guilty and imposed with major penalty not by the Prisons Department but not less a person than Secretary Health. Rule 197 of the Prisons‑Rules requires that no patient could be transported out of Jail premises for the purpose of further treatment without the consent of Assistant Medical Officer or Dispenser. The record of this case further reveals that ultimately Mst. Martha was transported to Nishter Hospital after getting permission of the Dispenser as the appellant refused to reach the spot. The Superintendent Jail did all what he could do but she expired before her removal to the Nishter Hospital, Multan. We are of the considered opinion that if the appellant had reached the Jail premises Mst. Martha might have been saved. The Superintendent Jail has cleared the dust over the issue by showing that the appellant was not living in the premises because he was not provided with a suitable accommodation by submitting that no residence except a residence of Assistant Superintendent Jail was available and the same was offered to the appellant who refused on the ground that such accommodation was not according to his status. When asked that he should reside in the adjacent Rest House, he refused to avail the same. With regard to the plea of the appellant that Ambulance facilities although available at the relevant time, were not availed by the authorities, the Superintendent Jail had denied it as baseless by submitting that no Ambulance facilities were available at the proper time. He has supported this fact from the Jail record. Had we found that the appellant could not be contacted by the Jail Authorities due to his absence from his house, the matter could have been different. But once it has been established on record that he was con tacted on phone and his refusal to reach the spot on the plea that he should be provided with transport for the said purpose, positively proves that the appellant was a person who bad no human sympathies/love in him, and for material gains and personal comforts he was prepared to sacrifice human life although he/she may be a convict.

15. In view of the above we do not find any justification to interfere with the impugned order which is based on positive evidence on record against the appellant in the form of inquiry report of the Enquiry Officer, judicial enquiry and the misconduct of the appellant by refusing to attend the patient because no arrangement of conveyance was made by Jail authorities, and proceed to dismiss the appeal, as being without any merit. However, there will be no order as to costs.

A. E.

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