' SYED NASIR ALI SHAH, (MEMBER).--- This fairly old appeal has checkered history. It was instituted on 22-2-2010. On 20-6-2011 the appeal was accepted by this Tribunal. The respondents went in appeal and the Hon'ble Supreme Court of Pakistan vide order dated 10-6-2015 accepted the appeal, set aside the judgment dated 20-6-2011 of this Tribunal and remanded the appeal to this Tribunal to re-decide the same, after giving opportunity to both the parties to furnish the documentary or other proof, required for reaching at a just conclusion.
2. Muhammad. Naveed Anwar, a C.S.S Officer of Audit and Accounts Group was serving as Deputy Director. Accounts (BS-18). He was sent on deputation to the Government of the Punjab and was posted as Director Land Development-II, Lahore Development Authority, Lahore. He was departmentally proceeded against on the following allegations:--- "1. While posted as Director Land Development-II in LDA Lahore, you restored 140 cancelled plots of MA Johar Town Scheme by misquoting the Authority's decision dated 16-11-2002 through 11 different revival orders as detailed below:---
(a) Revival Order No. DLD-II/LDA/332 dated 7-5-2003 (File No. JT/SA/46). Through this order plot Nos. 301, 241, 211, 212,270-A, 236, 202, 234, 217, 215, 201, 203, 209, 283, 282, 205, 208, 210, 204, 304 309, 301, 281, 308, 305, 307, 213, 303, 199, 306,302, 206, 177, Block B/I have been restored;
(b) Revival Order No. DLD-II/LDA/333 dated 7-5-2003 (File No. JT/SA/49). Through this order plot Nos. 388, 400, 379, 398, 397, 387, 383, 239, 231, 232, 119, 382, 394, 386, 384, 380, 378, 391, 390, 376, 238, 399, 375, 401, 402, 392, 380, 383, 385, 240, 377 Block B/I have been restored;
(c) Revival Order No. DLD-II/LDA/351 dated 14-5-2003 (File No.JT/BWL/28 & 31). Through this order plot Nos. 120 and 121 Block B/I have been restored;
(d) Revival Order No. DLD-II/LDA/365 dated 20-5-2003 (File No.JT/SA/38) through this order plots bearing Nos. 122, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 368, 369, 370, 371, 372, 373, 374 of Block B/I have been restored;
(e) Revival Order No. DLD/LDA/II/LDA/366 dated 20-5-2003 (File No. JT/APPELLANT/2969) through this order plot Nos.228 and 233 Block B/I have been restored;
(f) Revival Order No. DLD/LDA/II/LDA/377 dated 22-5-2003 (File No. JT/SA/59, 59-B, 59-D). Through this order plot Nos. 214-A, 294-A and 227-A Block B/I have been restored;
(g) Revival Order No. DLD/LDA/I/LDA/390 dated 11-6-2003 (File No. JT/SA/52). Through this order Plot Nos.414-A and 396-A Block B/I have been restored;
(h) ' Revival Order No. DLD/LDA/II/392 dated 21-6-2003 (File No. JT/SA/47). Through this order Plot Nos. 124, 172, 403, 404, 173, 174, 175, 176, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 328, 329, 330, 133, 332, 333, 334, 335, 336, 337, 338 Block B/I have been restored; ' Revival Order No. DLD/LDA/II/2076 dated 26-7-2003 (File No.JT/BWL 210, 211) through this order plot No.242 Block B/I has been restored; and
(j) Revival Order No. DLD-II/LDA/4593 dated 9-9-2003 through this order plot No.288 Block B/I has been restored."
' The charge sheet and statement of allegations were sent to the appellant at his residential address (House No. 302-A Faisal Town, Lahore). It appears that at the relevant time the appellant was on ex-Pakistan medical leave and as such service could not be effected upon the appellant.
Imran Iqbal, Director' General Audit WAPDA, Lahore was appointed as an Inquiry Officer. In the ex parte Inquiry Report dated 20-2-2009 the aforesaid allegations stood proved against the appellant. Thus a Show Cause Notice dated 19-3-2009 was sent to the appellant and the same too remained un-served. A proclamation was published in the daily "Jang" and "The News". But the appellant being abroad did not respond. Thus vide impugned notification dated 1-7-2009 major penalty of "dismissal from service" was imposed upon the appellant and the period of his absence from duty from 8-3-2006 todate was treated as absence without leave. Consequently, the appellant filed a departmental representation on 11-7-2009 to the Prime Minister of Pakistan which was rejected on 21-10-2009.
3. Against such a sad and somber backdrop the appellant brought this appeal by inter alia maintaining that he was condemned unheard as no opportunity of defence was afforded to him. It was amplified that the appellant being on ex-Pakistan medical leave had no knowledge about the initiation of disciplinary proceedings. It was maintained that the appellant remained under treatment in Toronto Canada from November, 2005 to July, 2008. It was also maintained that the penalty of dismissal from service imposed upon him was harsh. The appellant thus prayed for the setting aside of the impugned order of dismissal dated 1-7-2009 and subsequent appellate order dated 21-10-2009 whereby his departmental representation was rejected.
4. The appeal was strenuously resisted by the respondents. Various preliminary objections were raised. On merits it was maintained that the appellant committed acts of omission and commission which constituted inefficiency, misconduct and corruption by restoring 140 cancelled plots of M.A. Johar Town Scheme by misquoting the authority's decision dated 16-11-2002 through different revival orders. It was also maintained that the appellant did not cooperate with the Inquiry Officer and deliberately kept himself away from the inquiry proceedings. As noted supra, vide judgment dated 26-6-2011 the appeal was accepted by this Tribunal. While accepting appeal vide judgment dated 16-6-2015, the Hon'ble Supreme Court of Pakistan in paragraphs Nos.13 and 14 observed as under:--- "13. True, that there is a serious controversy on factual side, as to whether the absence of the respondent from duty was deliberate or was based on bona fide and justifiable grounds whether he had received the notice of the competent authority, refusing him further leave and whether the restoration of 140 plots, stated above, was done by the respondent within his vested authority and in a bona fide manner and whether the revival of these plots were subsequently cancelled again by the competent authority or its revival was approved by it. All such questions are to be determined in a conclusive manner by the Tribunal because we are left with no option but to remand the case to the Tribunal as the impugned judgment is unwarranted in law as the same in no manner has addressed the actual controversy in issue.
14. Accordingly, this appeal is allowed. The impugned judgment of the FST dated 20-6-2011 is set at naught and the case is remanded to the FST to re-decide the same, after giving opportunity to both the parties to furnish documentary or other proof, required for reaching at a just conclusion.
However, being an old case, relating to service matter, the FST shall decide the appeal within a period of two months positively from the date when it receives the copy of the judgment."
6. In compliance with the order of the Hon'ble Supreme Court of Pakistan, the parties were directed to furnish documentary or other proofs. The appellant submitted a paper-book containing the relevant record while the respondents did not opt to produce any evidence.
6. We have heard Barrister Muhammad Umar Riaz, learned counsel for the appellant as well as departmental representative of the respondents Syed Tajdar Mustafa Zaidi, Deputy Director (Legal) at considerable length and gone through the available record with their assistance.
7. Barrister Muhammad Umar Riaz learned counsel for the appellant in his suave and effusive style has inter alia contended that the appellant was on ex-Pakistan medical leave and as such could not possibly defend the disciplinary proceedings which culminated in the imposition of major penalty of dismissal from service upon him. Learned counsel has further contended that the appellant had not deviated from the order dated 16-11-2002 of the Authority. In any event it has been maintained that subsequently on 6-9-2004 the Director General, Lahore Development Authority had accorded ex-post facto sanction to the restoration of the aforesaid plots. It is pointedly maintained that the appellant was suffering from chronic Hepatitis-C and had undergone liver transplant in Canada. Thus it has been maintained that harsh penalty of dismissal from service imposed upon the appellant is not justified. As against this departmental representative Syed Tajdar Mustafa Zaidi, Deputy Director (Legal) has opposed the appeal and supported the impugned order.
8. We have considered the submissions of the parties. Within the contemplation of paragraph 13 of judgment of the Hon'ble Supreme Court of Pakistan, referred to above, this Tribunal is called upon to record findings on the following points:---
(i) Whether the absence of the respondent (appellant) from duty was deliberate or was based on bona fide and justifiable grounds;
(ii) Whether the appellant had received the notice of the competent authority, refusing him further leave
(iii) Whether the restoration of 140 plots was done by the respondent (appellant) within his vested authority and in a bona fide manner; and
(iv) Whether the revival of these plots was subsequently cancelled again by the competent authority or its revival was approved by it.
' Points Nos. (i) & (ii): ' These points are interconnected and intertwined. A perusal of the record reveals that order of inquiry against the appellant was passed on 13-5-2008. On 30-5-2008 a Charge Sheet was sent to the appellant at his residential address (302-A Faisal Town, Lahore). But according to the certificate issued by the Robert N. Clark, MD FRCPC Gastroenterology on 8-7-2015 which was duly attested by the Vice Consul, Consulate General of Pakistan, Toronto Canada the appellant remained under treatment in Canada from November, 2005 to July, 2008. Admittedly all communications during this period were sent to the appellant at his residential address at Lahore and no attempt was ever made to send these communications in Canada where appellant was under treatment. This being so it can safely be concluded that the absence of the appellant from duty was based on bona fide and on justifiable grounds and he had not received the notice of the competent authority refusing him further leave.
' Point Nos. (iii) & (iv): ' These points are too interconnected. These points involve core and contentious issue and Gordian knot of this case. It is pertinent to mention that Syed Anwar-ud-Din, former Director Land Development, Lahore Development Authority had exempted the plots in dispute along with 38 plots of M/s. Hajveri Cooperative Housing Society. Subsequently his successor Dr. Dyed Haider Ali cancelled the restoration of the aforesaid plots. A Committee was constituted to look into the matter. In its meeting held on 16-11-2002, 38 plots in Block-B/I in favour M/s. Hajveri Cooperative Housing Society, Lahore were restored. However, in regard to other similar cases it was ordered that all other similar cases will not be considered approved automatically and will instead be approved separately on case to case basis by the DG/LDA.
9- Subsequently on 12-4-2004 the appellant floated a proposal in para 142 of the noting which reads as under:--- "142. It was proposed to the ADG, LDA who very kindly consented that a complete list of the plots cancelled on the same grounds as that of Hajveri Society may be compiled after thoroughly examining their title and the same may be placed before the DG, LDA for his administrative approval in light of Authority's decision dated 16-11-2002 for restoration of these plots. It will save time and reduce the unnecessary paper work. If agreed, the case in hand can also be added to the same list."
' The file was marked to A.D.G who on 22-4-2003 on the noting-sheet passed the following order:-- "152. Discussed. Please proceed as per law, record and decision of Authority. Implementation be done on the basis of relevant record in each case decided by the Authority on 16-11-2002."
' This order, as would be seen, was ambivalent, vacillating and cryptic. But in any event this order made clear reference to the Authority's order dated 16-11-2002. Construing this order as approval and a carte blanche the appellant vide 11 different orders restored 140 cancelled plots.
10. Now what falls for determination is whether the aforesaid 11 orders passed by the appellant whereby 140 cancelled plots were restored were passed within his vested authority and in a bona fide manner.
11. As is discernible from the order dated 16-11-2002 of the Authority the disputed plots were to be restored on case to case basis by the Director General, Lahore Development Authority. But as noted supra the appellant neither sought approval of. Director General nor ordered the restoration of these plots on case to case basis. Rather vide 11 different orders the appellant restored 140 cancelled plots. This was clear and blatant violation of the aforesaid order of the authority and rather was an affront to the said authority. By no stretch of imagination the aforesaid order of the A.D.G could be construed as permission to the appellant to restore 140 cancelled plots.
12. No doubt subsequently the Director General, LDA granted ex post facto sanction of the aforesaid restoration of plots made by the appellant. But it was not without caveats and condemnation. It was specifically noted that the appellant had already restored the disputed plots without being put up to the Director General, LDA as a fait accompli. It was also specifically noticed that the appellant had transgressed his powers and acted beyond the mandate. Thus his case was referred for initiation of disciplinary proceedings against him.
13. From the above it is abundantly clear that the appellant by exceeding his powers and in sheer violation of the order dated 16-11-2002 had restored 140 cancelled plots. This was grievous misconduct and serious infraction. Thus disciplinary proceedings were justifiably initiated against the appellant. As noted supra during the inquiry the appellant being abroad could not defend himself. Ordinarily we would have ordered de novo inquiry against the appellant. But the Hon'ble Supreme Court of Pakistan in its order of remand provided opportunity to the appellant to furnish documentary evidence in his favour. The appellant fully availed of this opportunity by providing documentary evidence in the form of a paper-book. As such at this point of time the appellant cannot be heard saying that he was condemned unheard.
14. No doubt in the given circumstances major penalty was required to be imposed upon the appellant. But the case has its own peculiarities. By this expression we may mention that the appellant's case has a touch of pathos. His agony, ordeal, mental stress and illness which entailed prohibitive expenses in the foreign shore (Canada) are not hard to fathom. Loss of face was in addition to. However, the appellant is shown to have put in more than two decades of service.
There is no direct allegation that 140 cancelled plots were restored by the appellant for mundane considerations. The Director General, L.D.A is shown to have subsequently granted ex-post facto sanction to the aforesaid restoration of plots by the appellant, albeit with caveats and reprimand.
In such a perspective we do not want to forfeit the right of the appellant to seek future employment in some other Department/Organization. Taking into consideration the aforesaid circumstances holistically coupled with the ailment of the appellant we are of the considered view that major penalty C of "compulsory retirement from service" will be in sync with the enormity of the allegations/improprieties and meet the ends of justice.
15. For the foregoing reasons, we dispose of this appeal by modifying the penalty of "dismissal from service" to "compulsory retirement from service" with effect from 1-7-2009, the date of the impugned order. His absence from duty from 8-3-2006 to 1-7-2009, the date of the impugned order will be treated as leave of the kind due. However, the question of back benefits, if any, shall be decided by the competent authority within the contemplation of SI.No.155 Vol.II of Civil Establishment Code [Estacode 2007 Edition] and the dictum laid down by the Hon'ble Supreme Court of Pakistan in Federation of Pakistan through Secretary, Ministry of Education and others v.
Naheed Naushahi (2010 SCM R 11).
16. Parties be informed accordingly.