' S. ABDUL JABBAR KHAN (CHAIRMAN).-Fasahat Rehman has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 in which he has impleaded the Government of the Punjab through Secretary to Government of Punjab, Labour Department, Lahore, as respondent. By virtue of this appeal he has prayed that the entire proceedings of the order dated 20th March, 1979 be set aside as being void, contrary to the rules, unduly harsh, oppressive and inoperative on the rights of the appellant as Assistant Director, Labour Welfare. He has prayed for re-instatement in service from 15th September, 1978 with full pay and allowances as if the said impugned proceedings had never taken place.
2. Brief facts of the case are that the appellant, who was working as Assistant Director, Labour Welfare, and had unblemished record of service was served with a show-cause notice on 18th February, 1979 (Annexure 'A') by the Secretary to the Government of the Punjab, Labour Department, with the allegation that during the period of earned to the appellant from 15th February, 1978 to 14th September, 1978 the appellant had been serving unauthorisedly with a Private Company. The appellant was required to show cause as to why he should not be awarded a major penalty which may include his dismissal from service. The appellant submitted a detailed reply on 5th March, 1979 (Annexure '13') in which he referred to his earlier explanation dated 18th September, 1978 on the same subject. The appellant was required to appear before the Secretary to Government of the Punjab, Labour Department, on 18th March, 1979. The appellant appeared on the said date and explained the entire circumstances during the course of personal hearing. It was on 23rd March, 1979 (Annexure '13') that the appellant was removed from service on account of misconduct. The appellant submitted a review petition on 19th April, 1979 but no decision was taken upon it. Hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the Representative of the Department and have perused the record of this case carefully with their assistance.
' The following points were urged on behalf of the appellant through his counsel :-
(i) that no public misconduct was committed by the appellant ;
(ii) that there was no guilty intention on the part of the appellant ;
(iii) that the punishment was highly excessive and not commensurate with the lapse committed ;
(iv) that the order was liable to be set aside on the ground that it was given retrospective effect.
4. On the other hand the learned counsel for the respondent has submitted that the appellant was not permitted to join private service while he was on earned leave, a fact which he has accepted before the competent authority and even in the grounds of his appeal before this Tribunal.
According to the learned counsel for the respondent, the appellant was granted for months' leave subject to title from 15th February, 1978 to 14th June, 1978 for the settlement of his domestic affairs.
On his subsequent request he was granted extension in leave from 15th June, 1978 to 14th September, 1978. On the expiry of leave when the appellant resumed duty from 15th September, 1978 it had come to the notice of the Department that during the aforesaid leave the appellant had taken private employment with Messrs EIMEC Lahore at a consolidated pay of Rs, 3,400 p. m.
Including allowances. In view of the said lapse on the part of the appellant the competent authority was fully justified to impose the major penalty of removal from service.
5. We have given or anxious thought to the arguments so made before us by the parties and find that the appellant did accept an employment under a Private Firm temporarily in order to meet a serious financial crisis which had resulted due to the death of his father involving him in a prolonged litigation with certain persons who had illegally taken possession of his property. This act of the appellant did not involve any loss to the Government and the firm with which the appellant was working was in no way connected with the sphere of duties of the Department to which the appellant belonged. We are of the considered opinion that the said firm with which the appellant sought temporary employment to make his both ends meet was not in a position to derive any undue benefit from the Labour Department. Therefore, at the most the act of the appellant could fall in the category of 'mere irregularity' on his part and did not amount to public misconduct.
Reliance has been placed on the following cases :-
(i) Abdul Ghafoor Patwari v. Assistant Commissioner, Shakargarh 1980 PLC (C. S.) 204.
(ii) Sabir Hussain v. S. P., Gujrat, Case No, 30/582 of 1980.
(iii) Khan Muhammad v. D. C., D. G. Khan, Case No, 447/569 of 1979.
' In these cases although it was found that irregularity had been committed by the civil servant concerned yet the quantum of punishment was reduced from removal form service to minor penalty. While looking into the record of this case we also find that even the Authorised Officer i. e.
Director, Labour Welfare, had in view the circumstances in which the appellant was placed and recommended a lenient view against the appellant. We cannot remain oblivious of the fact that the appellant did not conceal his employment, with a Private Firm during his brief period and voluntarily revealed it to the Director in his joining Report on the expiry of his leave. This would clearly show that the appellant had no guilty intentions and the arrangement of his employment with the Firm was temporary which the appellant closed on the expiry of his leave. In PLD 1979 SC 24, Their Lordships of the Supreme Court have observed that the first lapse of a civil servant may not be visited with a serious punishment. The appellant has put in about 10 years of service in the Department when he was so removed and is a young man of 37 years with unblemished record behind him. It would not be possible for him at this stage to get any job in view of the present stigma on his record. Moreover, the order issued on 20th March, 1979 was given effect from 15th September, 1978 which being an executive order could not have been given retrospective effect.
Reliance is placed on PLD 1979 Lab.
699.
6. In view of the above discussions we are not inclined to punish in extreme an honest man who has voluntarily revealed the information which has become the cause of his removal from service.
Honesty has been a rare virtue these days and if we find the same in a civil servant he should be encouraged and not discouraged. We are of the considered opinion that the competent authority despite the recommendations of the Authorised Officer, acted in a very harsh manner without taking into consideration the family circumstances and the bold and honest attitude of the appellant ,and proceeded to inflict upon him the maximum penalty which, as discussed earlier, has been depreciated by the superior Court of this country. We, therefore, proceed to set aside the impugned order and direct that the appellant be re-instated in service from the date of his removal as if he had never been removed but inflict upon him a minor penalty of withholding of two increments. We further direct that the appellant will not receive the salary for the period of his absence i. e. From the date of his removal from service to the date of this order. There will however be no order as to the costs.