' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---CIVIL APPEAL NO.2254 of 2008: This appeal, by leave of the Court, is directed against the judgment of Punjab Service Tribunal dated 3-7-2000, relevant Para from the leave granting order is reproduced herein below:-- "Having heard the petitioner as also the learned Law Officer at some length, leave is granted, inter alia, to consider the following:
(i) Whether the learned Punjab Service Tribunal fell in error in upholding the findings on charges Nos. 3, 4 and 6 without giving any finding on the merits of those charges?
(ii) Whether the charges were sustainable in view of the alleged mala fides and the fact that prima facie no evidence was led to prove those charges?
(iii) Whether on account of the judgment of this Court passed in Civil Petition No,2348-L of 2000 filed by respondents, is the Petitioner estopped to have his petition heard on merits?
2. Appellant, as a former Under Secretary, Excise and Taxation Department, was proceeded against departmentally on the basis of charge sheet dated 31-8-1987. For six charges, allegations were repudiated by the Officer and enquiry officer vide enquiry report dated Nil concluded that following charges stand established against him:-- "(iii) That on 4-8-1987 the Secretary to Government of the Punjab, Excise & Taxation Department talked to you in inter-corn in connection with a request of a subordinate for grant of leave and asked you to listen to the official for appropriate decision at your level but you spoke to the Secretary on inter-com using improper language. When asked by the Secretary to see him in his room, you refused and further stated that the Secretary may do whatever he likes.
(iv) that you submitted an application dated 4-8-1987 addressed to the Chief Secretary and a note dated 12-8-1987 marked to the D.S. (&T) containing false and frivolous allegations against the Secretary to Government of the Punjab, Excise and Taxation Department.
(vi) that you addressed application dated 26-8-1987 to the Secretary to Government of the Punjab Excise and Taxation Department, Lahore containing abusive language against the Secretary to Govt. Of the Punjab, Excise and Taxation Department and endorsed copy thereof to the Chief Secretary, Govt. Of the Punjab, Additional Chief Secretary, Government of the Punjab and the Secretary (Services), Govt. Of the Punjab, SGA&ID with a view to belittling the prestige of the Secretary to Govt. Of the Punjab, Excise and Taxation Department".
3. In pursuance of the above recommendations, the department vide order dated 11th August, 1994 imposed major penalty of reduction to the minimum of his aspic scale BS-18. Departmental appeal, filed by him before the Chief Minister, remained un-decided as still the expiry of 90 days, no reply was received by him, therefore, he approached the Service Tribunal for the redressed of his grievance. Appeal filed by him has been disposed of on July 3, 2000 whereby the major penalty of reduction to the minimum of the appellant's basic scale was modified in the shape of reduction only to a lower stage in time scale. Concluding para from the judgment reads as under:- "Upshot of the above discussion is that the major penalty of reduction to the minimum of appellant's basic scale (BS-18) could not be imposed; however, he deserved major penalty in shape of reduction only to a lower stage in a time scale. The appeal is accepted accordingly".
4. As such instant appeal has been filed. It is important to note, before moving forward at this stage, that according to the available record containing charge sheet and the reply submitted by the appellant and other material tussle between the appellant and the then Secretary of Excise and Taxation Department has commenced for the reason that appellant pointed out to the department nefarious activities of the Smuggling Mafia of Heroine in which two officers of the department were also involved. Similarly, he was following strictly rule of business of the department and thus on account of his own conduct, appellant landed himself into difficulties. Be that as it may, we have minutely examined the case of the appellant with the assistance of learned Assistant Advocate-General and have also perused the record. Main contention of the appellant had been before us that his case is not covered in any manner under the definition of the misconduct defined under Rule 2(d) of the Punjab Civil Servants (E&D) Rules, 1975, therefore, the competent authority as well as the Service Tribunal erred in holding that he is guilty in violating the office discipline etc. On the other hand, learned Assistant Advocate General stated that there is written material against the appellant in presence of which it has been found that he was not maintaining the office order as such his case falls within the definition of misconduct.
5. It is to be noted that the charges which allegedly stood established against the appellant are in respect of non-listening to the directions of the Secretary Excise in respect of a person whose grievance is to be addressed. Essentially to prove such allegation, it is to be established by the department that the appellant violated any of the rules and has proved he to be an officer who believes in good order of the service. In this behalf, the findings so recorded by the enquiry officer are not based on strong evidence or good convincing reasons. As far as remaining charges, listed herein above, are concerned, those are based on the applications submitted by him to the Chief Secretary and the Secretary. We have perused both these application and cursory glance of the contents of the applications surely indicates that there is an iota of disrespect or violating good order of the discipline in any manner. Thus in this view of the matter it was obligatory upon the competent authority to have thoroughly examined the case of the appellant before coming to the conclusion that he is guilty for the charges noted herein above. We are surprised that as far as Tribunal is concerned, it has also failed to take into consideration that on the basis of material collected by the enquiry, officer and the order, there was no occasion to conclude that he is guilty for the misconduct warranting penalty under the law to him. The Tribunal although had given some relief to the appellant considering that major penalty was not warranted but at the same time it has failed to examine order of the competent authority to the extent as to whether the appellant has been rightly awarded penalty for the alleged misconduct or otherwise. Unfortunately, this aspect of the case has not been attended to. Therefore, this caused injustice and prejudice to the appellant.
6. Thus we are of the opinion that the basic order passed by the competent authority imposing major penalty upon the appellant is without lawful authority therefore, deserved to be set aside. As a result of above discussion, appeal is allowed. Impugned judgment as well as order of the competent authority are set aside and appeal is allowed with all back benefits. The appellant has been dragged into litigation un-necessarily; therefore, we compensate him by awarding the cost of Rs,50000 which shall be paid by the Government of Punjab to the appellant. The compliance of the above order shall be made by the Chief Secretary Government of the Punjab, within the period of two weeks as the matter has already delayed and is lingering in the Courts from the year 1994 and compliance report shall be submitted to the Registrar for our perusal in Chambers.
7. Before parting with the judgment, we observe that in such like cases the officers who are responsible for initiating proceedings against the good officers which are ultimately found not to be sustainable, such authority is liable to be penalized in respect of the dues which are ultimately to be paid to the employee instead of burdening to the public exchequer as it has been held by this Court in the case of Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and another (PLD 2002 SC 667) but we are informed during hearing that the then Secretary, on whose behest the action had initiated, had passed away, therefore, no order can be passed in this behalf under the circumstances.
C.P. 3056-L of 2008: In this case, grievance of the petitioner is that on account of-his ill-ness in the month of August, 1992, he applied for medical leave but despite of the fact that he was entitled as per the leave account for the same, leave was not granted to him and ultimately he approached, the Service Tribunal by filing appeal who vide impugned judgment dated 3rd July, 2000 concluded that he is not entitled for leave w,e,f, 31-1-1993 to 2-2-1993.
8. After examining the case and hearing the petitioner as well as learned Assistant Advocate- General, we set aside the impugned judgment, remand the case to the Chief Secretary Government of the Punjab to consider the case of the petitioner afresh in the light of the request which he has already made for the grant of leave duly supported by the medical evidence. As such this petition is converted into appeal and allowed accordingly.
C.P. 3616-L of 2001: Petitioner, present in person, stated that he be permitted to withdraw this petition. Dismissed as withdrawn.