' JUSTICE (RETD.) RUSTAM ALI MALIK (CHAIRMAN).---The appellant had joined service as Dispenser on 11-2-1989 in the Health Department and had almost 17 years of service when he applied for long leave for 730 days which was sanctioned on 12-10-2004 by respondent No,3. However, long leave sanctioned on 12-10-2004 was later cancelled by respondent No,3 on 5-3-2005 and the order was conveyed to him by respondent -No,4 and in consequence the appellant was directed to resume duties on 16-3-2005. He immediately filed an application/ representation before respondent No,3, requesting him not to cancel his leave as the condition of his brother-in-law was deteriorating due to lung cancer and his old and ailing parents also needed his attention. His brother-in-law, later died in Ittefaq Hospital, Lahore. However, respondent No,3 vide his order dated 6-7-2005 imposed major penalty of removal from service on him. Against the said order, dated 6-7-2005 passed by respondent No,3, the appellant filed an appeal on 13-8-2005 before respondent No,2 who rejected the same on 19-8-2006. Hence the appellant has challenged the orders, dated 6-7-2005 and 19-8- 2006 by filing the instant appeal before this Tribunal.
2. Arguments have been heard and record perused. In their parawise comments, respondents Nos.3 and 4 have taken the plea that long leave of 730 days had been sanctioned in favour of the appellant by the District Health Officer, Sahiwal vide order, dated 12-10-2004. The administrative control of all Basic Health Units in District Sahiwal was later handed over to Punjab Rural Support Programme under the Chief Minister's initiative on Primary Health Care. The District Support Manager, PRSP recommended to the Executive District Officer (Health), Sahiwal that long leave sanctioned in favour of the appellant may be cancelled so that he may be appointed at Basic Health Unit 128/9L. But the Executive District Officer (Health), Sahiwal in return advised the District Health Officer, Sahiwal to cancel the remaining leave of the appellant. Consequently, the D.H.O.
Sahiwal cancelled his leave vide his letter, dated 9-3-2005 with effect from 15-3-2005. Thereafter the appellant submitted a representation before the E.D.O. (Health), Sahiwal. He was called for personal hearing twice to decide his appeal. He was heard on 30-5-2005 and as a result his appeal was rejected and the E.D.O. (Health), Sahiwal decided to proceed against him under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 as he had failed to join duty in spite of the letter issued to him regarding cancellation of leave. He was again directed to join duty by the District Health Officer, Sahiwal vide letter, dated 31-5-2005 and the said letter was delivered at his home address by one Mr. Jamshed Sarwar Gill, Junior Clerk of the Office of District Health Officer, Sahiwal personally but his parents told him that he had proceeded for "Umra". He had never obtained ex-Pakistan leave nor had he ever tried to serve his old parents for whom he had obtained leave. In fact he had made the lathe excuse for serving his old parents during the period of two years leave just to go abroad and in fact his purpose was not to look after his old parents or his ailing brother-in-law and even after the decision of Executive District Officer (Health), Sahiwal he did not join his duties. The respondents have also taken the plea that the Programme Director, District Health Development Centre had acted as Inquiry Officer and after consideration of the allegations and findings recorded during the inquiry, had reported to the E.D.O.
(Health), Sahiwal that the appellant had proceeded abroad. So a letter of personal hearing was issued to him by the Executive District Officer (Health), Sahiwal vide his letter dated 22-6-2006, after receiving the inquiry report and the appellant was directed to appear before him on 27-6- 2005. Meanwhile an advertisement was also published in the newspaper directing the appellant to appear before the Executive District Officer (Health), Sahiwal but he never appeared before him in spite of issuance of letters and advertisements published in the newspapers and hence the orders were issued for his removal from service.
3. I have carefully considered the arguments advanced from both sides and have also perused the record. It appears that the appellant had failed to join duty after cancellation of leave and had remained absent from duty even thereafter and was thus, clearly guilty of misconduct. He had even proceeded abroad without getting sanctioned the ex-Pakistan leave from the competent authority. As his absence was wilful, he had been rightly proceeded against on disciplinary grounds. At the time of IA arguments, the learned counsel for the appellant has pointed out that the appellant had a long service record and hence a lesser punishment could have been awarded to him keeping in view the length of his service. He has further pointed out that the competent authority had imposed on the appellant the penalty of removal from service with effect from 9-3- 2005 i,e, the date of his alleged absence from Government duty whereas no executive order can be passed with retrospective effect. After going through the record and hearing the arguments from both sides and considering all aspects of the matter, I agree with the learned counsel for the appellant that keeping in view the length of service of the appellant, a lesser punishment in the form of compulsory retirement could have been imposed on him. I also agree with him that the penalty of removal from service could not be imposed on him from a back date i,e, from 9-3-2005.
As the impugned order was passed by the Executive District Officer (Health), Sahiwal on 6-7-2005, the penalty could be effective B only from the said date.
4. In view of what has been stated above, the penalty of removal from service as imposed on the appellant by the departmental authorities is converted to compulsory retirement with effect from 6-7-2005 i,e, the date on which the competent authority had passed the order and not from 9-3- 2005. However, the intervening period shall be considered as leave without pay.
5. Under the circumstances, the parties are left to bear their own costs.