' MALIK ZAWWAR HUSSAIN (MEMBER).-Muhammad Aslam, ex-Foot Constable has filed this appeal against the order dated 30th September, 1979 passed by the Superintendent of Police, Mianwali, whereby he has been dismissed from service on account of his wilful absence from duty. Although the appeal was filed before the D. I.-G. P., but the same having not been disposed of the appellant has approached this Tribunal with the present appeal. He has prayed that the impugned order be set aside and he be re-instated in service with all the back benefits.
2. We have heard the learned counsel for the appellant, Mr. M. A. Riaz, and Mr. H. R. Cheema, District Attorney, and have also perused the record of the case. According to the record a show-cause notice by way of General Police Proceedings under rule 6 (3) of the Punjab Police (Efficiency and Discipline) Rules, 1975 was issued by the Superintendent of Police, Mianwali, on 29th July, 1979 containing the allegations that on 20th June, 1979 at 7-30 a. m. When the members of First Armed Reserve were required to fall in the Police Lines for emergency duty the appellant did not turn up and absented from duty wilfully and that he did not report back for duty uptil 29th July, 1979. By virtue of the said show-cause notice the appellant was required to show cause as to why one of the major punishments including dismissal from service as prescribed under the Punjab Police (Efficiency and Discipline) Rules, 1975 be not imposed upon him and he was also offered an opportunity of personal hearing. It appears from the record that although efforts were made to serve the appellant with the show-cause notice but the appellant was not available at his placer of residence and he was served through the mode of substitutive service by the fixation of notice at the door of his house and by the delivery of said notice on one Muhammad Mumtaz, cousin of the appellant a male member of his house. Since the appellant was avoiding service as per report of the S. FL O., Sadder Mianwali, so the Competent Authority proceeded ex parte aphis him and passed the impugned order.
3. The learned counsel for the appellant has submitted that the appellant has been condemned unheard and the enquiry has not been conducted in accordance with the relevant Efficiency and Discipline Rules. He has also submitted that the appellant had proceeded on leave from 19th June, 1979 to 21st June, 1979 duly sanctioned by the Lines Officer and that subsequently be had been sending the applications supported by the medical certificates. He has also submitted that since his applications were duly supported by the medical certificates so the leave could not haire been refused. In this connection he has placed reliance on the judgment of this Tribunal in Appeal No, 54 of 1980 (Mubarak Ahmad v. S. P., Jhelum) to Aire that the Competent Authority could read rifle the leave and it will open to him to refer the appellant for second medical opinion to the Medical Superintendent which procedure had not been adopted in the present case. On the other hand the learned District Attorney has submitted that the appellant did not submit any application to the Lines Officer so there was no question of sanction of leave. He has further submitted that according to the rules a lower subordinate of the Police Department while proceeding on leave is supposed to make an entry in the Daily Diary Register of the Police Lines and since no entry was made in the said Register so irrebutable presumption is that no leave was granted in favour of the appellant.
The learned District Attorney has also submitted that even after 20th June, 1979 the appellant did not submit any leave application or medical certificate to the Competent Authority before the issue of the show-cause notice upon him. He has also submitted that since the appellant had been avoiding the service of the notice so the Competent Authority was within its right to proceed ex parte and to pass the impugned order. He has also brought to or notice that after institution of the present appeal, the D. I.-G. P. Has also dismissed his appeal vide order dated 26th January, 1979.
The learned District Attorney has further argued that the appeal is time-barred because the impugned order was passed on 30th September, 1979 and the present appeal has been filed on 12th October, 1980 after the prescribed period of 30 days after the expiry of 90 days as laid down in section 4 of the Punjab Service Tribunals Act of 1974 and the case reported in PLD 1980 SC 260.
4. During the course of the arguments to resolve the controversy whether the appellant was granted three days leave as alleged by him, we recorded the statement of Anwar Hussain Shah, Head Constable, the then Muharrir of Police Lines, Mianwali, at the request of the appellant. In his statement before us the said witness has admitted that although the appellant was granted three days leave by the then Lines Officer yet the said application was neither given to him by the appellant or the Lines Officer nor is any entry of the departure of the appellant is available in Daily Diary Register. He has also submitted that it is the legal requirement that while proceeding on leave an entry has to be made in the Daily Diary Register of the Lines and that since he had not received any application from any quarter whatsoever so no entry was made in the Daily Diary Register.
5. We have given or anxious thought to the arguments of the learned counsel for the appellant as well as the learned District Attorney and have also perused the record of the case. A perusal of the statement of Anwar Hussain Shah, the then Muharrir of the Police Lines, reveals that the appellant did present the application to the Lines Officer for the grant of three days leave although there is no mention of the specific dates in it. Even if we give full latitude to the appellant and consider that this application was for the grant of three days leave from 19th June, 1979 to 21st June, 1979 even then the record reveals that the appellant did not submit any application or any medical certificate for the grant of leave in his favour. The record shows that one application dated nil was received by Superintendent of Police on 11th August, 1979 and was diarized in his office at No, 12311 dated 16th August, 1979 and accompanied by a photostat copy of medical certificate issued by Medical Officer lncharge Primary Rural Health Centre, Jaranwala (Mianwali), who had recommended him rest for one month with effect from 20th June, 1979 onwards. Another photostat copy of certificate issued by one ' Medical Officer recommending complete rest for one month from 20th July, 1979 to 19th August, 1979 is also available on the record which seems to have been received by the Superintendent of Police on 6th August, 1979 and diarized in his office on 9th August, 1979. If we advert to the dates of the receipt of the application and the second medical certificate for the period from 20th July, 1979 to 19th August, 1979 we come to the conclusion that the appellant did not make any application or intimate the Competent Authority regarding his illness immediately after 22nd June, 1979, the date on which his alleged earlier leave had expired, meaning thereby that there was no intimation or any application regarding his sickness to the Superintendent of Police from 22nd June, 1979 to 6th August, 1979 which supports the contention of the learned District Attorney that these certificates have been manoeuvred after the service of the show-cause notice upon the appellant. So we hold that the appellant did not submit any application or any medical certificate regarding his sickness to the Superintendent of Police before the service of the show-cause notice dated 29th July, 1979 upon him. We are also satisfied that the Competent Authority had taken ample steps for the service of notice upon the appellant. He was in fact served according to the rules. Since the appellant did not bother to respond to the show-cause notice or to contact the Competent Authority in this connection so the Competent Authority was perfectly within its right to proceed against him ex parte and to pass the impugned order. So far as the cited case of Mubarak Ahmed is concerned, the facts of that case are distinguishable from the facts of the case before us and the obiter dictum of that judgment is not applicable to this case. Since we have already held that the appellant did not make any application at the proper time so he was absent wilfully from his ,duty without any justification. As such there is no infirmity in the impugned order and the departmental proceedings against the appellant.
6. In view of what has been stated above, we hold that there is no merit in the present appeal which is dismissed with no orders a s to the costs.