' JUSTICE (RETD.) RUSTAM ALI MALIK (CHAIRMAN).---The appellant has filed this appeal against the impugned orders which were passed after he was proceeded against on disciplinary grounds. The brief facts of this case are that he was posted as Sub-Inspector, Police when he applied for ex- Pakistan leave for 90 days, which was allowed vide order, dated 18-2-2004 and hence he proceeded abroad. According to his version, during his stay abroad, he met with an accident and remained under treatment for sustaining injuries in his back bone. After having recovered he returned to Pakistan in the last week of February 2005 and promptly reported for duty, but he was informed by the staff of respondent No,1 that he had already been dismissed from service. On his request, the copy of the order dated 14-10-2004 was communicated to him on 7-3-2005. Feeling aggrieved, he filed a departmental appeal before respondent No,2 i,e, Capital City Police Officer, Lahore on 9-3-2005 with which were appended medical certificates issued by the doctor concerned as well as the certificate issued by the Embassy of Pakistan at Madrid (Spain).
Resultantly, respondent No,2 accepted his medical certificates etc. And reinstated him into service vide order, dated 1-4-2005. However, the period of his absence was treated as leave without pay and the punishment of dismissal was converted into punishment of reduction in pay. Feeling aggrieved, he filed a revision petition before respondent No,3 i,e, Inspector-General of Police, Punjab. The copy of the order, dated 24-10-2005 was communicated to him on 23-12-2005. He has prayed that the impugned orders dated 14-10-2004, 1-4-2005 and 24-10-2005 being illegal be set aside and he be ordered to be reinstated in service with effect from 14-10-2004 and the period from 7-9-2004 to 1-4-2005 be treated as leave of the kind due.
2. The respondents have resisted the appeal on the ground that the appellant had proceeded abroad on ex-Pakistan leave for 90 days, but on the expiry of the leave, he did not report back for duty on 7-9-2004. He remained absent for 1 month and 5 days. A show-cause notice dated 28-9- 2004 was sent to him on his home address, but he was not available there. A copy of the show- cause notice was received by a daughter of his sister, but he failed to file a written reply within the stipulated period and also failed to report back for duty till the date of his dismissal. His absence for a long time indicated that he was not interested to continue his job. They have further averred that he was highly undisciplined and incorrigible type of subordinate and not fit to be retained in police department and hence he was awarded punishment of dismissal from service with immediate effect under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 vide order dated 14-10-2004. He filed departmental appeal before the Capital City Police Officer, Lahore/respondent No,2 who converted the punishment of dismissal from service into reduction in pay by one stage. Thereafter he filed the instant appeal before this Tribunal.
3. Arguments have been heard and record perused. It appears from the record that the Capital City Police Officer, Lahore vide his order, dated 1-4-2005, keeping in view the good service record of the appellant had observed that the punishment awarded to him by the competent authority was somewhat harsh and hence he converted the same into reduction in pay by one stage. It was also directed by him that the period during which he had remained absent/out of service, shall be treated as leave without pay.
4. The learned counsel for the appellant relying on the case of Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 SCM R 434 has asserted that when the departmental appellate authority had considered the period of absence of the appellant as leave without pay, he could not be penalized for the alleged unauthorized absence for the same period. I agree with the said argument. When the departmental appellate authority had itself treated the period during which the appellant had remained absent/out of service as leave without pay, it could not penalize him for the alleged unauthorized absence for the same time (because the period of his alleged absence had been treated as leave without pay). A person cannot be "on leave" and "wilfully absent" at the same time. He is either wilfully absent or "on leave" but not both simultaneously. As such the penalty of reduction in pay by one stage as imposed on the appellant by the departmental appellate authority vide its order, dated 1-4-2005 is without any basis and as such is liable to be set aside.
5. In view of what has been stated above, this appeal is accepted, the impugned order dated 1-4- 2005 passed by the Capital City Police Officer, Lahore to the extent of imposition of penalty of reduction in pay by one stage on the appellant along with original order dated 14-10-2004 passed by the competent authority are set aside. In consequence, the appellant stands reinstated in service.