NASIR JAVED, MEMBER-II.- Briefly stated facts are that the appellate was appointed as Charge Nurse in the Directorate General of Nursing Services, Punjab, Lahore. Due to some serious domestic problems and circumstances the appellant applied for leave and after availing that on 13.8.2003, she submitted application for joining her duties vide letter dated 7.10.2003, she was called to answer a questionnaire in the shape of affidavit which she did the same day. On 30.10.2003 she was issued a show cause notice with the allegation of being absent from duty w.e.f. 9.9.1999. Upon which the reply was tendered on 10.11.2003 explaining the reasons for her alleged absence from duty. After about one month letter she was again required to file reply to the same show cause notice which was date 11.12.2003. Vide letter dated 2.1.2004, the appellant was called for personal hearing on 12.1.2004 by the Deputy Director Nursing. Accordingly she appeared and she was again required to submit vide a printed proforma/order dated 16.2.2004 issued by the respondent No. 2 under the Punjab Removal from Service (Special Powers) Ordinance, 2000, she was imposed major penally of removal from service w.e.f. 1.12.1998. Aggrieved by that she filed an appeal before respondent No. 1 which was turned down.
2. The background of this case is that she availed 585 days extra-ordinary leave without pay w.e.f.
22.2.1997 to 30.9.1998. Against the sanction of 730 days leave out of which 145 days leave was cancelled by this, office. She joined duty on 27.10.1998. After passing the few days i.e. Approximately 35 days, she was found absent w.e.f. 1.12.1998, upon which the Directorate appointed an Authorized Officer to conduct inquiry against her under (E&D) Rules 1975, who recommended the major penalty of removal from service Vide order dated 3.6.1999 but taking a lenient view, the authority allowed her to join duty and posted her at Government Mian Muhammad Munshr Hospital, Lahore awarding the minor penalty of censure and absence period to be treated as leave without pay. She did not comply with the orders and after about 4 years and 10 months she applied for permission to join duty in Lahore. The Directorate called her for personal hearing where upon she appeared and stated that due to her domestic affairs she could not join the duty. A show cause notice was served for being absent from duty from 1.12.1998 vide order dated 30.10.2003. She submitted the reply and then later on the above said conclusion occurred. The grounds of absence submitted in the appeal were that she suffered from domestic problems as enmity was harboured between her husband and other party and since her life was not safe. She was not in a position to resume duty, it was argued by the counsel that this fact is proved right from the beginning that after serving the department since 3.5.1989 she was forced to go on leave from 14.4.1997 onwards. Previously there was nothing on record to show that he had ever remained absentee, it was also argued that out of the sanctioned leave when there was same softening of the matter she got that partly, a leave of 145 days forthwith cancelled and joined the duty, it is another thing that she could not serve for more than 35 days, when the same circumstances prevailed on. it was also argued all this was well in the knowledge of the authority, that's why after remaining not on duty for a long period when major penalty of removal from service was recommended, keeping that a view it was not found appropriate and it was turned into minor penalty which usually does not happen and she was allowed to join Government Mian Muhammad Munshi Hospital, Lahore about which the representative of the Government present in the Tribunal voluntarily stated that place in posting was of her choice and on her own asking but circumstances did not allow her to join duty even at a place of her choice. Where upon she was again proceeded after listening and finding her reply not satisfactory, this she was proceeded again, it is clear that she was not treated as a average case, her case become a special one. After that the second process-against her under RSO 2000 resulted in the impugned order written at the beginning of this judgment. Another point raised by the counsel is that questionnaire type investigation was carried out by the appellant which is not admissible under the rules.
3. District Attorney opposed it on the parawise comments tendered by the respondents.
4. Now we take both the view-points affront before deciding the issue:--
(1) That inspite of one regular inquiry, she was mildly treated and further-more she was allowed to join her duty at the place of her choice.
(2) She applied and succeeded in getting long leave which she did not fully avail.
(3) The facts which forced the authority to consider her case leniently were not put before when the decision was made on the second proceedings. Replying in the personal hearing referred above she explained which is placed at para. 64 that she belongs to Mianwali, some party forcibly took over the property of her husband where upon there was a tussle and in the alteration her husband was got injured, in such circumstances it was impossible to come out from home. She has further stated that due to the forcible occupation of the property of her husband, her whole life was disturbed and she had remained under the constant threat of being killed.
5. Now had this not been so there is no justification for the authority to threat her leniently, in the first case and had it been so then prima facie justification for the impugned order is questionable of the second inquiry, in such an alike case entitled Mst. Najma Shahida, ex-Charge Nurse Jinnah Hospital, Lahore Vs. Deputy Director, Nursing, Punjab, Lahore and others Appeal No. 2213/2002. The judgment of this Tribunal is that after considering the contention of both the sides and perusing the record, one thing becomes clear that there were extra-ordinary circumstances which promoted the appellant not to resort to the natural and normal way of extending her leave as has been revealed, the major cause was allegedly committing of murder by her husband. Therefore, the attending circumstances did not allow her appearance at the different forums. The contention of her application amply shows that she was not passing through normal circumstances. As in this case it was added that it is a well-accepted principal of law and justice that nobody should be condemned unheard. It implies that charges must be confronted to her and only after listening her case it could be adjudicated upon to arrive at any definite conclusion that of course with reasoning. Just a glance over her removal from service order shows that irregularity has been made as the judgment is not a speaking order. Thus keeping in line the previous judgment above, the impugned orders are set aside and the case is remanded to the authority for de novo proceedings, it is also clear that in the fresh inquiry as ample opportunity will be given to the appellant to produce her defence witnesses, documents etc., and also paving the way for her cross- examination of witnesses adopting the proceeding laid down in a regular inquiry.
Resultantly she is reinstated in service. The intervening period will be decided in the out come of the inquiry. No order towards costs.