1. M. SALEEM CHAUDHRY (CHAIRMAN).-----In this appeal filed on 8-9-1977, the appellant an ex- Junior Clerk of the Excise and Taxation Department, Punjab, is aggrieved by the order of the Director, Excise and Taxation, Lahore, dated 15-11-1976 terminating his services on the ground of unauthorised absence from duty w.e.f. 9-5-1976, till the date of the order. He is also aggrieved by the order of the Director-- General, Excise and Taxation, Punjab, dated 2-8-1977, rejecting the appeal preferred by the appellant against the order dated 15-11-1976.
2. Briefly the facts of the case are that the appellant joined the Department as a Junior Clerk on 17-9- 1976. On 4-11-1975, he applied for four months leave w. e. f. 10-11-1975 to 9-3-1976 which was sanctioned on 12-11-1.975. After the expiry of the leave, he again applied for the extension in leave for two months upto 9-5-1976 which was also sanctioned on 25-3-1976. Even after the the expiry of the extended leave, he again applied for extension for another two months vide application dated 8-5-1976 on the ground that his wife had been ill and was admitted in the General Hospital, Lahore, and thus he was required to attend his wife. The Excise and Taxation Officer, Circular II, Lahore, under whom the appellant at the relevant time was serving, did not sanction the leave and informed the appellant on 19-5-1976, about the rejection of his leave on 8-5-1976. However the communication failed to evoke any response at the appellant's end, therefore, another intimation was sent to him on the 9th of July 1976 to report for duty. The matter was also brought to the notice of the Director, Excise and Taxation, Lahore, who was the competent Authority in the matter. It appears that the appellant did not take any notice of the order above. The Excise and Taxation Officer again on 31-8-1976, requested the Director, Excise and Taxation for taking a suitable action who called for report as to whether the appellant had reported for duty. The Excise and Taxation Officer on 6-10-1976, informed that the appellant had not reported so far. In the circumstances above, the Director, Excise and Taxation on 25-10-1976, wrote to the Excise and Taxation Officer that reportedly the appellant had proceeded abroad and and since no application for leave after 9th of May, 1976, had been received from the appellant, therefore, he may be served with a notice to attend office within four days failing which action will be taken against him. The E. T. O. On 29-10- 1976, issued a notice to the appellant direct--ing him to resume duty within four days failing which his services will be liable to termination under the rules. Due to the absence of the appellant at the time of service of the notice, the same had to be delivered to his wife Mst. Suraya Begum on 29-10- 1976 in the presence of two witnesses, viz. Arif Khan and Ikram Ullah. Even after this, the appellant failed to attend, Eventually, the Director, Excise and Taxation Department, on 15-11-1976, terminated his services w. e. f. 9-5-1976 on the ground that he was absent from duty without permission from the said date. No doubt another leave application was received on 24-11-1976 from the appellant for the period 8-11-1976 to 30-11-1976, but no action could be taken upon the same as the appellant's services stood already terminated. The appellant on 8-12-1976 requested the Director, Excise and Taxation Department, to allow him to resume duty on the plea that his leave had expired on the 30th of November, 1976, but his request was rejected on the 31st of December, 1976, with the observation that he had ceased to be in service. He was advised to prefer appeal to the next higher authority. The appeal so filed on 22-12-1976 was rejected on 2-8-1977 by the Director- General, Excise and Taxation, Punjab, after thorough consideration. The appellant claims to have received a copy of the decision dated 2-8-1977 on 5-9-1977 and filed the present appeal on 8-9- 1977.
3. In this appeal, the learned counsel for the appellant, Mian Sher Alam, raised the following contentions :-
(1) That the action against the appellant has been initiated without any order passed by the Competent Authority. Thus the impugned orders passed against him are in gross violation of rule 5 of the Punjab Civil Servants (E. & D.) Rules, 1975, which requires the Competent Authority to direct the Authorised Officer to proceed against the civil servant ;
(2) That the impugned orders were also in serious violation of rule 6 of the aforesaid rules which required the Authorised Officer to make a decision in writing as to whether it was necessary to make an inquiry in this case. Since no such decision has been made, therefore, the entire proceedings and dispensing with the enquiry in this case was illegal and unjustified
(3) That the show-cause Notice had not been properly served and for that reason, the impugned orders were illegal ;
(4) That the period of notice was too short. According to the learned counsel for the appellant, the minimum period for the notice should have been 7 days to 14 days, as laid down in rule 7 (2) of the afore--said rules ;
(5) That the notice issued by the E. T. O. Who was neither the Compe--tent Authority, nor the Authorised Officer was illegal. In this behalf, reliance was placed upon PLD 1966 SC 253 in which the Commissioner issued a notice although the competent Authority was the Provincial Government ; and
(6) Lastly, the appellant has been denied the opportunity of being heard in person by the Competent Authority as required by rule 8 of the Punjab Civil Servants (E. & D.) Rules, 1975.
4. The learned Government Pleader, on the other hand, argued that the Director, Excise and Taxation, Lahore, had the powers both as the competent Authority and the Authorised Officer. The proceedings were initiated against the appellant, at his instance, thus there was no violation of rule
5. As regards the requirements of enquiry, he submitted that the relevant provisions contained in rule 6 did not warrant any order in writing. He rather submitted that the Authorised Officer was to decide as to whether it was necessary to hold an enquiry in the light of the facts of this case. In this case, the Director, Excise and Taxation Lahore, did not direct any enquiry which clearly implied that he had dispensed with the requirements of enquiry. He submitted that the reliance placed by the learned counsel upon rule 9(b) which provides that the authority should express the reasons to be recorded in writing that it is not reason--able and practicable to give the accused an opportunity to show cause. The learned Government Pleader submitted that the rule was not applicable to the enquiry, but to the show-cause notice. Thus in terms the rule was inapplicable. As regards the notice, learned Government Pleader argued that the notice was issued under rule 6(3) .Which required only to communi--cate to the accused, the grounds for the proposed action and to give him a reasonable opportunity of showing cause. In the circumstances of the case, both the requirements have been adequately complied with. The appellant did not turn up for a fortnight, even after the service of the notice. Thus he could not be heard to complain against the non- compliance of the aforesaid provisions of the rules. He further submitted that the notice issued by the ETO to the appellant was at the instance of the Director, Excise and Taxation, who was admittedly the Authorised Officer in this case. As the appellant had not suffered any prejudice in this behalf the case relied upon by the appellant was distinguishable. As regards the granting an opportunity of being heard in person, the learned Government Pleader submitted that the appellant, in fact, was never available at his home address, nor he was available in the country, therefore, he could not possibly avail the opportunity of being heard, as con--templated under rule 8 of the E. & D. Rules, 1975. He thus pressed for the rejection of the appeal. He also submitted that the appellant has failed to establish or to produce any evidence to show that he had filed any leave apple--cation for the period from 9-5-1976 to 7-11-1976. Thus he had evidently absented himself from duty without leave, which he could not claim or pre--sume to have been sanctioned to him, as a matter of right. Thus he pressed for the rejection of this appeal.
5. After hearing both the parties and going through the records, we find that the plea of the appellant that the notice was not issued by the Authorised Officer and that the appellant was deprived of any opportunity of being heard, has not been explained by the Department satisfactorily. In the first instance, rule 6 necessitated the issuance of notice by the Authorised Officer. In this case the notice has been admittedly issued by the E. T. O. Who was neither the Authorised Officer, nor the Authority as laid down in the Supreme Court ruling relied upon by the appellant. As such, the notice was not valid. In any case, even according to the arrangement under the rules, the authority was itself required to issue a notice to the appellant by providing a reasonable opportunity of being heard in person. 1n this case, admitted' the Director, Excise and Taxation, who was the Authority competent to exercise the powers under rule 8 of the E. & D. Rules, 1975, did not provide any opportunity to the appellant to be heard in person. In view of the non-compliance of the mandatory provisions contained in rule 8, the order passed by th Director, Excise and Taxation, was clearly illegal and void. The subsequent order passed by the Director-General, Excise and Taxation, Punjab, also fails to deal with this aspect of the case. The same is also illegal. We also feel that the period given in the notice was not sufficient. We accordingly accept, this appeal and set aside the orders passed by the Departmental Authority'. However, in view of our conclusions above, the rest of the points raised by the appellant do not call for any decision by this Tribunal. However, there will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.