Moazzam Hayat, Member.--Abid Mehmood, appellant, was ME-Skilled in the service of Directorate General E&ME, GHQ. He was awarded penalty of removal from service vide order dated 25.11.2010 w,e,f, 4.12.2009. His departmental appeal dated 2.12.2010 was rejected on 15.12.2011. Hence this appeal.
2. A charge was issued to the appellant on 06.01.2010 wherein it was stated that he was absent from duty w,e,f, 4.12.2009. The appellant has maintained that during the period of absence he was suffering from viral hepatitis and had remained admitted in Benazir Bhutto Hospital, Rawalpindi.
3. The appeal is resisted by the respondents. It is stated that the appellant had not joined duty despite notices. It is also stated by them that a Court of inquiry was convened comprising Major Suleman Ahmed Awan and ISO Manzoor Hussain. Since the charge of absence was proved against the appellant he was served with a show-cause notice dated 15.12.2009 whereafter the penalty in question was awarded to him. Thus the case of the respondents is that all the legal and codal formalities had been observed in awarding the penalty in question to the appellant.
4. The record shows that the appellant had not joined duty w,e,f, 4.12.2009 but he has reduced sufficient evidence to show that he was suffering from hepatitis and straightening of spine.
Whereas the first disease was very serious and its due notice should have been taken by all concerned. We are of the view that the absence of the appellant was not willful but was due to his serious ailment. However, the question of his serious ailment, his inability to resume duty and his failure to send an application for leave shall be resolved by the competent authority in a regular inquiry.
5. While deciding the matter the request of the appellant made in his departmental appeal for his reinstatement or in the alternative for his premature retirement shall be considered.
6. A penalty, is effective from the date it is awarded. No penalty can be given with retrospective effect. Thus the competent authority had not passed a lawful removal order on 25.11.2010 making it effective from 4.12.2009. This aspect of the case shall also be looked into by the competent authority.
7. The result is that the appeal is accepted. The impugned order of removal is set aside. The appellant is reinstated into service. The respondents may hold de novo proceedings against him in the light of observations given above. These proceedings may be completed preferably within a period of four months from the date a copy of the judgment is received in the office of respondents. The payment of back benefit shall depend upon the outcome of fresh proceedings.
8. There shall be no order as to costs. Parties shall be informed.