' MUHAMMAD AFZAL (MEMBER-I).---As per facts leading to this appeal, the appellant was proceeded against under Punjab Civil Servants (E&D) Rules, 1999 on grounds of misconduct relating to his appointment and regularization as EST/S.V. Teacher. Through orders dated 31-12- 2001 the services of the appellant were deemed to have been terminated mainly on the ground that he had failed to acquire the requisite prescribed qualification for the post of PET, whereas the appellant was not working as PET at the time impugned orders were passed. Feeling aggrieved by the orders terminating his services, the appellant filed service appeal No,71/04 in this Tribunal which was disposed of through judgment, dated 9-4-2004 with the directions to the concerned authority to hold inquiry. The orders terminating the services of the appellant were, therefore, set aside. For implementation of the orders of this Tribunal, fresh inquiry was held by a senior headmaster in the District. According to findings contained in the report of the inquiry officer dated 15-1-2005, the appellant was recommended to be regularized since he had acquired the qualifications of EST while he was posted (originally) as EST untrained. Inquiry officer also recommended that the period appellant remained out of service, may be treated as leave without pay. The authority, accepting the fihdings of the inquiry officer, passed orders dated 11-2-2005 exonerating the appellant from the date his services were terminated and treating the intervening period from 1-1-2002 to 9-5-2004 as leave without pay. Fresh proceedings as well as decision by the competent authority were taken under Punjab Civil Servants (E&D) Rules, 1999, apparently, because the proceedings had been started originally against the appellant when Punjab Removal from Service (Special Powers) Ordinance, 2000 had not yet come into force. Appellant filed representation before the next higher authority/EDO (E) Sialkot for treating the intervening period with full back-benefits etc. Because the authority had treated the said period as leave without pay.
The appellate authority, on consideration of the representation filed by the appellant proceeded to pass the impugned orders dated 19-5-2005 and remanded the case to the authority mainly on the grounds that fresh inquiry had not been properly conducted and that the appellant had submitted a "false" inquiry report before the authority. Appellant presently challenges the orders dated 19-5- 2005 and also prays for treatment of the intervening period with full back-benefits, since he had been exonerated by the inquiry officer as well as by authority.
2. Learned counsel for the appellant has addressed his arguments at length. Learned counsel for the appellant contents that the impugned orders dated 19-5-2005 by respondent No,1 were ab initio void and could not sustain on legal plane. It is stated that in terms of rule 15 of Punjab Civil Servants (E&D) Rules, 1999, appeal could be submitted only when penalty was imposed upon a civil servant and in that case, on consideration of appeal, the appellate authority was competent to pass orders for fresh inquiry. Appellant had not been imposed upon any penalty by the authority/respondent No,2 as he had been clearly exonerated of the charges in consequence of remand of the case by this Tribunal and on consideration of the findings of the inquiry officer.
Appellant has submitted a representation only for treatment of the intervening period as leave without pay, which was not a punishment, in terms of section 21 of Punjab Civil Servants Act. This section ibid entitled every civil servant to file appeals before the next higher authority even on matters where no right of appeal was clearly given under any rules. It is stated that the appellant availed of the right to file appeal under this section 21 ibid only for the purpose of grant of back- benefits or atleast treatment of the period as leave on due basis. It is also emphasized that be appellate authority could not, suo motu, remand the case and .Order de novo inquiry because the powers of "suo motu" remand/revision were available to the Government only under rule 20 of the Punjab Civil Servants (E&D) Rules, 1999 and not to any other officer/authority. It is also stated that the appellant had already been exonerated of the charges in consequence of fresh inquiry which was conducted in accordance with rules and those findings had been confirmed and implemented by the authority and it was not open to the appellate authority, to whom no representation was filed by the appellant challenging any penalty, to take a decision different from he one taken by the authority/respondent No,2.
3. Appeal is opposed by the respondents. It is stated that the orders passed by the authority did not appear to have been passed in accordance with the facts and, therefore, the appellate authority/respondent No,1 has passed orders by remanding the case for fresh proceedings in accordance with law. It is also maintained that the appellant had misrepresented the facts before the authority as well as before the appellate authority. It is next pointed out that the appellant had filed a complaint before the Ombudsman for release of salary for the period he remained out of service and that his complaint was disposed of on grounds of jurisdiction with the observations that the appellant should seek remedy from the competent forum.
4. I have given my careful thought to averments from both sides and also perused the relevant record as made available. I find that the appellant had earlier challenged the orders relating to termination of his services as EST before this Tribunal. His service appeal No,71/04 was disposed of with the directions to the competent authority to hold inquiry because glaring inconsistencies were observed by this Tribunal in the list of charges levelled against the appellant. Inquiry was held under the orders of the authority/respondent No,2. According to the conclusion drawn by the inquiry officer, appellant was exonerated. However, the inquiry officer did not declare the appellant entitled to claim pay for the period he remained out of service as the appellant had already been reinstated in compliance of the judgment dated 9-4-2004 of this Tribunal passed in his earlier service appeal. I agree with learned counsel for the appellant that the appellate authority was competent to remand the case for fresh proceedings only when appeal was filed before the appellate authority in terms of rule 15 of Punjab Civil Servants (E&D) Rules, 1999. The very title of this rule is "appeal against penalty". I agree with the appellant that he had not challenged imposition of any penalty, as he already stood exonerated. Therefore, apparently, representation was filed by the appellant to challenge treatment of the period intervening as leave without pay, under section 21 of the Punjab Civil Servants Act Section 21(2) ibid reads as under.---"Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order except where such order is made by the Governor, within 60 days of the communication to him of such order make a representation against it to the authority next above the authority which made the order." Obviously, the matter fell within the ambit of section 21 ibid. On the other hand, rule 15 of Punjab Civil Servants (E&D) Rules, 1999 reads as under: "Any civil servant on whom a penalty has been imposed under these rules, except where the penalty has been imposed by the Government, may within 30 days from the date of communication of the order, appeal to such authority as may be prescribed". Rule 17 of the Punjab Civil Servants (E&D) Rules, 1999, enables the authority where appeal has been filed (under rule 15 ibid) to remand the case to the authority for fresh proceedings. But since the appellant had not filed any appeal to challenge the imposition of penalty his appeal under rule 15 would not have been competent because he stood exonerated.
The appellate authority/respondent No,1 could not, therefore, exercise powers in terms of rule 17 of Punjab Civil Servants (E&D) Rules, 1999. The Government has been authorized under rule 20 of Punjab Civil Servants (E&D) Rules, 1999 to take suo motu action and to order further inquiry even where a civil servant is exonerated by an authority, but in this case, further proceedings had been ordered by the appellate authority/EDO (E) Sialkot who was not the Government and could not exercise powers under rule 20 ibid available to Government. Therefore, finding these obvious legal infirmities in the impugned orders dated 19-5-2005 passed by respondent No,1, the same orders are set aside and the said respondent is directed to take a decision on the representation of the appellant within reasonable span of time only to the extent of treatment of the period from 1-1- 2002 to 9-5-2004, when the appellant remained out of service.
5. Appeal succeeds as indicated above.