JUSTICE (RETD.) MUHAMMAD JEHANGIR ARSHAD, CHAIRMAN - This appeal is directed the order dated 30.11.2007 passed by the competent authority whereby the appellant was dismissed from service on the ground of deliberate absence from duty and his period of absence was treated as 'without pay' and also against the order dated 7.4.2008 whereby his departmental appeal/representation was also rejected by the Deputy Inspector-General of Police/Deputy Commandant, Punjab Constabulary.
2. The facts in brief are that the appellant was employed as Constable in the Punjab Constabulary on 15.6.2004. As while posted in Battalion No. 2, PC, Rawalpindi he absented for 81 days on different ccasions without prior permission from the competent authority, he was given show-cause notice under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and on his failure to submit any reply the competent authority after proceeding ex parte against him dismissed him from service after treating his period of absence as without pay vide order dated 30.11.2007. Against the said order of dismissal appeal filed by the appellant was also dismissed by the appellate authority/D.I.G./Deputy Commandant through order dated 7.4.2008. Hence his appeal.
3. The learned Counsel for the appellant has raised following points to support this appeal:--
(i) That nowhere in the show-cause notice (Annexure 'E') jt was mentioned that major penalty i.e. Dismissal from service could be imposed against the appellant whereas it is now established principle of law that no major penalty could be imposed without indicating the same in the show- cause notice. Reliance has been placed in the case of General Manager, Pearl Continental Hotel, Peshawar and another v. Ismatullah (2004 TD (Labour) 349) and also the provision of Section 7(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
(ii) That no major penalty could be imposed on the appellant unless there was a charge of absence from duty for a period of more than one year and the same is proved under Proviso II of Section 7 of the Punjab Employees Efficiency, Discipline, and Accountability Act, 2006; and
(iii) Lastly that it is not established on the record of the department that .The appellant received any show-cause notice before he was proceeded against ex parte and thus entire proceedings were conducted against him without notice and condemning him unheard which is against the principle of natural justice. Reliance is placed on Pakistan and others v. Public-at-large and others (PLD 1987 SC 304) and Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408).
4. On the other hand, the learned A.D.A, has opposed this appeal on the ground that the appellant wilfully absented from his duty without leave and even did not bother to submit reply to the show- cause notice issued by the competent authority and also did not appear before the said authority for personal hearing despite repeated notices. Lastly argued that Police being a disciplinary force its employees are expected to be riot only dutiful but show themselves as a role model for others especially in the matters of discipline etc.
5. I have considered the above-mentioned arguments of the learned Counsel for the parties and have also perused the record and the show-cause notice appended with the appeal.
6. The perusal of show-cause notice makes it abundantly clear that nowhere in the said notice the proposed penalty has been mentioned and there is a considerable force in the contention of the learned Counsel for the appellant that the same is violative of provisions of Section 7(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 which reads as under:- "Inform the accused by an order in . Writing, of the grounds for proceeding against him, clearly specifying the charges therein, alongwith apportionment of responsibility and the penalty or penalties proposed to be imposed upon him."
7. It is an established principle of law that unless the proposed penalty indicated in the show-cause notice, the civil servant cannot be punished especially with major penalty like-present one. Further the imposition of major penalty for absence from duty for 81 days and is also violative of Proviso II to Section 7(f) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 which imposes a condition of absence from duty of more than a year for imposing penalty of dismissal from service whereas in the present case per show-cause notice the appellant was accused of remaining absent from duty for 81 days only and for that also not only the imposition of major penalty was without jurisdiction but also could not be imposed without a regular inquiry. Again neither the competent authority nor the appellate authority alongwith comments has appended copy of notice allegedly served on the appellant or the evidence of service of the said notice on the appellant even alleged refusal to receive notice by the appellant before proceeding ex parte against him and as held by the hon'ble Supreme Court of Pakistan in the case of Mir Muhammad Ali Rind v-. Zahoor Ahmed and another (CPLD 2008 SC 412) "order adverse to the interest of a person cannot be passed without providing opportunity of hearing and departure to this rule may render the order illegal". The perusal of order passed by the appellate authority also indicates that his appeal was being dismissed for the reasons also that the appellant earned two bad entries in his two years' service including earlier discharge from service in 2006 and the same was also considered as a reason for holding the appellant as habitual absentee. But neither the show-cause notice comprises this allegation nor any record to this effect has' been appended with the comments therefore the appellate authority was not justified to include the said allegation against the appellant for justifying its order of rejection of appeal, It is now established principle of law that before punishing any person he must be given reasonable opportunity of hearing and also full opportunity to defend himself, In the present case the appellant has been dismissed by the competent authority without indicating the proposed penalty especially major penalty in the show- cause notice and also without holding proper inquiry into the allegation against him which is violative of the law laid down by the hon'ble Supreme Court of Pakistan in the case of Tariq Mehmood v. District Police Officer, Toba Tek Singh and another (PLD 2008 SC 451). I am therefore satisfied that the entire proceedings conducted by the competent authority before imposing the major penalty of dismissal from service on the appellant suffer from not only jurisdictional defect but also violative of the principle of natural justice. Similarly the appellate authority also dismissed the appeal of the appellant by adding allegation not mentioned in the show-cause notice.
Resultantly this appeal is allowed and the orders of the competent authority as well as of the appellate authority are set aside and the appellant is directed to be reinstated forthwith with the minor penalty of 'censure1 to the appellant in the matter of discipline. The period of his absence shall be considered as leave without pay.
8. During hearing of service appeals especially against imposition of major penalties of compulsory retirement, dismissal or removal from service it has come to the notice of this Tribunal that the competent authority usually proceeds to impose the major penalty without indicating the same in the show-cause notice despite several judgments of the apex Court and also in most of the cases without proper inquiry and both these defects are not only violative of the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 but also against the principle of natural justice, It is therefore observed that in future competent authority before imposing major penalty shall ensure that not only the proposed major penalty is specifically indicated in the show-cause notice as provided in Section 7 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and further while imposing major penalty of compulsory retirement, dismissal or removal from service the charge of absence from duty is to be imposed only when the period of absence is more than one year as provided in Proviso 11(f) of Section 7 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and further formal inquiry is to be dispensed with in rare cases or on the basis of admitted facts where major penalty is to be imposed, In case if in future such illegality is brought to the notice of this Tribunal, this Tribunal found not be slow in burdening the competent authority or as the case . May be appellate authority with heavy costs for not only causing huge financial losses to the public exchequer but also wasting the precious time of this Tribunal as in the presence of such, legal and procedural defe-cts this Tribunal being a last Court of appeal in service matters has no option but to set aside the entire proceedings, It is further brought to the notice of the concerned that passing of any order in violation of the law declared by hon'ble Supreme Court tantamounts to contempt of Court also punishable under Article 204 of the Constitution of Islamic Republic of Pakistan and for that matter necessary recommendations for initiating of Such proceedings could also be made to the hon'ble Supreme Court of Pakistan.
9. Office to send copy of this judgment to the Chief Secretary, Government of the Punjab for his perusal and consideration.