' S. HAFEEZ-UR-REHMAN (MEMBER),-Through this appeal, Khurshid Ahmad Malik, appellant, who is Design Engineer in the Planning Cell of the Buildings Department, impugns the punishment of stoppage of two increments and withholding of promotion for two years awarded by the Secretary C & W Department, vide order dated 2nd July, 1980.
2. The appellant joined service in the Provincial Government as Temporary Assistant Engineer on 4th June, 1962 and was promoted as Executive Engineer in April, 1973. He was selected for service with the Saudi Arabian Government's Ministry of Defence and Aviation and allowed to proceed on deputation for a period of three years beginning 13th December, 1972. However, the appellant continued to serve there till after this period. When he submitted his application to the Punjab Government for extension of his deputation abroad upto October, 1978 he received notice dated 7th August, 1978 to show cause why he should not be compulsorily retired from service. After a few days, however, the Punjab Government too granted him extension of deputation upto 21st October, 1978 but in the meantime the Saudi Arabian Government had renewed its contract with the appellant up to 1st October, 1979. The appellant informed the respondent about his renewed contract and sought further extension in his deputation, but he continued to receive notices to join duty in Pakistan, ultimately, he received show-cause notice dated 7th February, 1979 which he replied vide letter dated 26th February, 1979, The appellant continued to press the Saudi Arabian Government to release him and was ultimately able to report to the Punjab Government on 31st March, 1979. The Government, however, issued orders of his retirement on 31st March, 1979 and rejected his review petition on 7th June, 1979, The appellant went in appeal to this Tribunal which, vide its decision, remanded the case to the respondent on the ground that the appellant had not been given a personal hearing. After giving him hearing, the respondent withdrew the order of retirement and instead awarded the two punishments now impugned before us.
3. The parties were heard as they were during the hearing of the appellant's previous appeal (No, 238/401 of 1979). Briefly, the appellant submitted that he was always keen to join the Department after expiry of his contract but he was not permitted to do so by his employing Ministry in Saudi Arabia because of the importance of the defence works he was working on. The order of extending his deputation upto 31st October, 1978 reached him on 10th October, 1978 but, by that time, under the automatic renewal clause, his contract had already been renewed for a year. Moreover, he was physically incapable of leaving his job in Saudi Arabia because his passport was with his employer, and no foreigner could leave that country without an exit visa which was granted to him in February, 1979 after which he was permitted to leave. He reported for duty in the Punjab Government the very day when the order of his compulsory retirement was issued, and since he had actually reported there was no need to issue the penal order. On behalf of the respondent, it was contended that the Government was not a party to the contract between the appellant and the Saudi Government, and had he insisted be could have been allowed to come back long before he did.
4. The parties were heard in much greater detail by us than that in the preceding paragraph. But in view of the bearing conducted in the previous appeal, or decision thereon and the respondent's reduction of the punishment thereafter a longer account of the arguments is not called for. The point that has come up from the proceedings before us and before the respondent is : how and why the Government was able to see its way to reducing the penalty after the case was remanded to it by this Tribunal. We went through the record in order to satisfy ourselves on this point. It seems that on remand the appellant was given a proper hearing by the respondent and he lay before that authority all the evidence that he possessed to show that it was beyond his power to come away from Saudi Arabia at his own will. The respondent seems to have been duly impressed and decided that in view of the mitigating circumstances the appellant deserved lenient treatment. It was accepted that the appellant was quite keen to return to his job in the Punjab. And-to quote the record--"lt has further been established that he was held back by the Saudi Arabian Government at that time because of his assignment of some important defence projects." The point that strikes us as significant is that whereas the submissions of the appellant were accepted as correct by the respondent nothing persuasive is stated in the record to show why, in the face of those submissions, he is being punished at all, though much less severely. In the summary submitted by the respondent to the Governor/MLA it is stated as under : "in the circumstances explained above it is recommended that the order of compulsory retirement of Mr. Khurshid Ahmad Malik may kindly be reviewed. As he could not have justifiably presumed that Government would automatically condone his action for entering into a fresh agreement as fait accompli, it is proposed that he may be awarded the punishment of stoppage of two increments and debarring him from further promotion by two years."
' This means that the fault of the appellant has been pin-pointed as presuming that Government would automatically condone his action for entering into a fresh agreement as fait accompli. The same summary, however, while detailing the grounds on which compassionate treatment is proposed, states earlier that by the time the order about extension of his deputation reached the appellant, the contract stood automatically renewed by the Saudi Government. It is further added : "Had he received the order of the Government refusing him the extension in time he could have got the contract rescinded by giving due notice to the Saudi Arabian Government".
5. What we find from the record is that the Government has accepted all the submissions made by the appellant to prove his inability to report back for duty in Pakistan and has yet thought it fit to award him punishment. This, in or view, is not consistent with the principles of justice and equity and we, therefore, proceed to direct that the impugned order of 2nd July, 1980 is of no avail and is consequently struck down as void.
6. As a result, the appeal is accepted. There will, however, be no order as to costs.