' K.B. ABID, MEMBER-IIII.--- Appellant Manzar Khalid Ex-Excise and Taxation Inspector was departmentally proceeded. As per charge-sheet, the following charge was levelled against him.
"While posting in District Kasur, he was granted medical leave from 22-9-2004 to 19-1-2005 by the competent authority. His application for extension of medical leave along with medical certificate for the period from 20-2-2005 to 19-3-2005 was received but since then he is found absent from Government duty without any prior permission and intimation to the competent authority."
2. In response to the charge-sheet the appellant wrote a letter to Inquiry Officer and asked to provide relevant documents. The receipt of this request was acknowledged by the Inquiry Officer.
The Inquiry Officer accordingly supplied some of these documents to the appellant vide letter No,968 dated 1-8-2005 and acknowledged by the appellant on 9-8-2005. The Inquiry Officer summoned the appellant for attending the inquiry proceedings on 27-9-2005 but he did not attend. Ex parte proceedings were conducted by the Inquiry Officer. By taking in view the relevant facts, the Inquiry Officer concluded that the official is absent from duty since 20-1-2005 without any information. Although he had applied for leave from 20-2-2005 but leave had not been sanctioned.
The appellant was given sufficient time to clear his position but he did not care. The Inquiry Officer gave his findings that the charge against the appellant is proved. The competent authority issued show-cause notice to the appellant for personal 'hearing on 22-10-2005. The appellant requested the competent authority that due to severe backache, he cannot attend the proceedings and requested for any other date for the purpose. The competent authority finally afforded the appellant opportunity of personal hearing on 27-10-2005. The appellant appeared before the authority on the said date and stated that he was not heard by the Inquiry Officer. Appellant also pleaded that he had submitted the application for leave on medical grounds along with medical certificate and pleaded that de novo inquiry should be conducted through regular process. The competent authority after consideration of defence reply dated 26-9-2005 addressed to Inquiry Officer presented during personal hearing concluded that charge against appellant is proved. The penalty of dismissal from service was awarded to the appellant vide order, dated 1st December, 2005. Departmental representation was filed before the Director-General Excise and Taxation which was not decided within the mandatory period of 90 days. Hence, the service appeal has been filed in the Punjab Service Tribunal.
3. Counsel for the appellant has pleaded that the appellant had requested the Inquiry Officer for submission of important documents to prepare the reply to the charge-sheet but only two documents were provided. The appellant had requested the Inquiry Officer to adjourn the proceedings because of backache. The Inquiry Officer without passing any order on the adjournment application and waiting for reply to the charge-sheet had submitted vague and contradictory report to the competent authority whereupon show-cause notice was served to the appellant. Appellant had pointed out deficiencies of inquiry report before respondent No,2 but he without considering facts of the case, replies to the charge-sheet had awarded penalty of dismissal from service. Legal objection raised by the counsel is that the competent authority, Director Excise and Taxation Multan had passed the order without jurisdiction because as per section 2(aa) of RSO, 2000, the Head of the Department has to notify the powers of competent authority. The respondent No,2 had passed the impugned order without deciding the leave application submitted on medical grounds. The ex parte proceedings against the appellant are also unjustified because the appellant had shown willingness to join the proceedings. The Inquiry Officer hail not applied his mind while submitting the report about absence period of the appellant.
The Inquiry Officer has given findings of those charges which were not part of statement of allegations. Hence, award of penalty on the basis of such charges carries no weight in the eyes of law. The competent authority had issued show-cause notice for imposition of major penalty of removal from service whereas the orders of major punishment of dismissal from service, have been passed. The competent authority had acted beyond the penalty proposed in the show-cause notice.
4. Respondents have opposed and stated that the appellant was preceded strictly in accordance with the law. The respondent No,1 has taken the plea that as per provision of RSO, 2000, the Appointing Authority is inherently "competent authority" to proceed against the person appointed by it. The Director Excise and Taxation, Lahore was the Authority for the post of Excise and Taxation Inspector and competent to order initiation of disciplinary proceedings against the appellant. The Inquiry Officer had called the appellant for joining the proceedings on 27-9-2005 but the appellant had not attended the said proceedings. The Director Excise and Taxation/respondent No,2 had examined the leave application while passing the order, dated 1-12-2005, which was not found reasonable. The medical certificate furnished by the appellant was not signed by the competent Medical Officer.
5. Arguments of the counsel for the appellant heard, record perused. Objection of the counsel for the appellant that the Director Excise and Taxation, Lahore had no jurisdiction to initiate the proceedings against the appellant has to be examined in the light of relevant law and rules. The S&GAD Notification No,SOR-III,1- 33/94(B), dated 5-11-2001 has clearly authorized the Appointing Authority as competent authority to initiate departmental proceedings under RSO, 2000. The Notification of S&GAD is very much clear which specifically delegates the powers to Appointing Authority to proceed against the civil servant on account of misconduct. The Objection of the counsel for the appellant on this point is not supported by any law. The appellant had requested the Inquiry Officer for recording the statement of Muhammad Hassan, Excise and Taxation Officer (retired) who had reported his absence. This request was not considered by the Inquiry Officer. The appellant was also not provided the documents as demanded on 25-7-2005. It was legal demand submitted by appellant. In this connection Honourable Supreme Court of Pakistan has passed remarks as under:-- "Non-summoning of witnesses the list whereof was submitted by civil servant to Enquiry Officer amounted to denial of opportunity to defend his case Inquiry Officer by such conduct, without any valid reason had compulsory shut out defence witnesses and in absence of their evidence, conclusion against civil servant could not be justified."
6. In case, the appellant had not furnished reply to the charge-sheet, then the Enquiry Officer should have acted strictly in accordance with the provisions of RSO. The ex parte proceedings should have been conducted through formal notice to the appellant. The version of prosecution in the light of relevant record should have been recorded in the inquiry report. There is no mention of the statement of the departmental representative. The findings of Enquiry Officer that leave applied by the appellant was not sanctioned is incorrect because departmental authorities had not produced any letter showing the rejection of medical leave applied by the appellant. The Rule 20(2) of Leave. Rules, 1981 is reproduced as under:-- "Leave applied for on medical certificate shall not be refused. Provided that the authority competent to sanction leave may, at its discretion, secure a second medical opinion by requesting the Civil Surgeon or Medical Board, as the case may, to have the applicant medically examined."
7. From the above mentioned rule, it is very much clear that leave on medical ground shall not be refused; however, the competent authority can have second medical opinion by referring the case to Medical Board or Civil Surgeon. In this particular case, competent authority had not obtained second opinion of the Medical Board. The appellant has been penalized without rejection of the application and formal information. Had the appellant been informed about leave acceptance or otherwise, he could have acted accordingly.
8. It is also correct that the Authority has acted beyond the proposed penalty given in the show- cause notice dated 18-10-2005 which was removal from service. As against this proposed penalty orders and dismissal from service order was passed. If the penalty greater than the removal from service was required to be awarded, fresh show-cause notice should have been issued by Authority. This shows unlawful action on the part of the Authority.
9. On the basis of above mentioned facts, rules and evidences, it is established that the orders of Authority are against Revised Rules, 1981, without prescribed process as given in RSO, 2000. These orders are set aside. The appeal is accepted and appellant is reinstated into service. The intervening period will be treated as leave of the kind due.