' MUHAMMAD MOOSA K. LEGHARI, J.---This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the judgment dated 12-4-2006 passed by the Punjab Service Tribunal, Lahore, whereby the appeal filed by the petitioner challenging the notification of his removal from service was dismissed.
2. Relevant facts are, that the respondent, an ex-employee of the Health Department, through notification dated 30-5-2001, was removed from service, on the 'basis of the findings of the departmental inquiry conducted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 on the charges of a large number of appointments made by the petitioner, as Director Health Services, without advertising the posts, without preparation of the merit list and also over and above the sanctioned strength. The respondent's review petition was not attended to by the department. He therefore, agitated the matter before the Service Tribunal who by its impugned judgment allowed the appeal, set aside the order of the removal from service, and reinstated him, in the following manner:-- "(9)Arguments heard record perused.---Without going into the merits of the case, this case is remanded because of the procedural flaws, for fresh de novo proceedings. Hence the impugned orders are set aside. He is reinstated in service with the direction that right from the start as above, a de novo inquiry is ordered to find out the facts at the bottom by affording full opportunity of defence to the appellant including hearing of appellant by the authority, if he so likes. However if he has availed any pensionery benefits he will have to deposit those before the order, is put into operation. The intervening period will be decided in the outcome of the inquiry. The parties are left to bear their own costs."
3. The above judgment passed by the Punjab Service Tribunal, Lahore was assailed by the respondents in Civil Petition No,994/L of 2004. After hearing the parties this Court converted the petition into appeal and allowed. The judgment delivered by the Punjab Service Tribunal was set aside and the matter was remanded to the Tribunal for deciding the petitioner's appeal afresh on merits in accordance with law on the basis of available record.
4 . Vide impugned judgment dated 12-4-2006 Punjab Service Tribunal dismissed the appeal of the petitioner. Resultantly, the penalty of removal from service inflicted upon the petitioner vide notification dated 30-5-2001 was upheld.
5. It is contended on behalf of the petitioner that the allegations levelled against the petitioner could not be proved in two consecutive enquires. The petitioner was proceeded ex parte, as such his fundamental rights having been infringed, no weight could be given to the findings of the enquiry. It is further contended that the petitioner was also entangled in a case under the NAB Ordinance but was exonerated of the charges. It is next argued that this Court vide its judgment dated 26-3-2001 remanded the cases of the civil servants allegedly appointed by the petitioner in violation of rules to the departmental authorities for scrutinizing the individual cases, as such the petitioner could not be penalized. Learned counsel canvassed that the judgment passed by the Tribunal cannot be sustained in law. Alternatively it was pleaded that in any case the petitioner was not liable to the extreme penalty of removal from service.
6. Learned Assistant Advocate-General, Punjab appearing for the respondents though opposed the petition yet conceded to the fact that the petitioner was exonerated in the two departmental enquiries and that the petitioner was found innocent in the investigation conducted by NAB. She was also unable to controvert the fact that the cases of different persons appointed by the petitioner were remanded to the departmental authorities by this Court vide judgment dated 26- 3-2001 passed in Civil Appeals Nos. 1105 to 1218 of 2000, 1491 to 1526 of 2000 and 1812 of 2000.
7. We have considered the submissions and carefully examined the available record with the assistance of learned counsel for the parties. The fact that the petitioner was exonerated in two consecutive enquiries is borne out from the record. The enquiry in the present case was held ex parte. As obvious from the operative part of the judgment, it was observed by the Tribunal that there were procedural flaws in the enquiry. In the circumstances the order passed by the authority was declared illegal and the petitioner was directed to be reinstated in service. However, the Tribunal directed for holding a fresh enquiry in the matter. On appeal, this Court vide judgment dated 7-12-2005 held that since the civil servant stood retired, no de novo enquiry could be conducted against him. Accordingly the case was remanded to the Punjab Service Tribunal, Lahore for deciding the same on the material available on the record. The Punjab Service Tribunal in its judgment dated 23-10-2002 has already taken a view that the enquiry conducted against the petitioner was suffering from flaw. Indeed if the Tribunal has taken a view that the enquiry was defective, it was against propriety to hold the petitioner guilty on the basis of flawed enquiry. It is well-settled that it is for the authorities to prove the acts of alleged misconduct against a civil servant and that a civil servant cannot be held guilty of the charges mer'ly because he failed to participate in the proceedings. The material is available on the record to show that the petitioner was exonerated of the charges in the investigation conducted by the NAB Authorities. The perusal of the judgment dated 26-2-2001 passed in Civil Appeals Nos.1105 to 1218 of 2000, 1491 to 1526 of 2000 and 1812 of 2000, as referred by learned counsel for the petitioner adequately reveals that the appeals filed by the incumbent civil servants who were alleged to have been appointed in violation of law by the petitioner were accepted and the cases of those civil servants were remanded to the authorities for deciding each case on its own merit. In the circumstances, the penalty of removal from service inflicted upon the petitioner appears to be harsh, inappropriate and out of proportion.
We are of the view that the penalty of compulsory retirement from service will be sufficient to meet the ends of justice in the facts and circumstances of the case.
8. For the foregoing reasons, the petition is converted into appeal and allowed. Consequently, the penalty of removal from service awarded to the petitioner is converted into compulsory retirement.
The order passed by the departmental authorities and the impugned judgment delivered by the Punjab Service Tribunal, Lahore are altered accordingly.