Pursuant to two different show-cause notices dated 16.06.2009 and 06.11.2009, the Superintendent, District Jail Faisalabad by invoking the provisions of PEEDA Act, 2006, on account of absence of the appellant, awarded punishment of "removal from service" against the present appellant and his period of absence was treated as E.O.L vide order dated 25.01.2010/ 09.02.2010. Against this order, departmental appeal was filed, which was rejected being time barred by D.I.G (Prisons) Faisalabad Region Faisalabad vide order dated 23.11.2010. Being aggrieved, revision petition was filed, which was rejected on 30.07.2011. Thereafter, another revision petition was filed, which was returned vide order dated 13.02.2014. Hence this appeal.
2. Arguments advanced by the learned counsel for the appellant as well as learned D.A heard and record perused.
3. It is settled principle of law that when the period of absence of civil servant was treated by the competent authority as leave without pay, therefore, ground of his illegal absence was no more available for awarding any punishment to him. Reliance is placed on 2012 SCMR 165 titled as Director General, Intelligence Bureau, Islamabad Vs. Muhammad Javed etc. And 2006 SCMR 434 titled LDA Vs. Muhammad Nadeem Kachloo etc.
4. While deciding service appeal titled Faiz Ahmad Vs. CCPO etc reported in 2006 PLC (C.S.) 973, Punjab Service Tribunal observed as under:-- "Without entering into the Controversy whether the appellant had submitted medical certificates and whether he was actually ill during the period of alleged absence, we do agree with learned counsel for the appellant that as per law already settled by the Honorable Supreme Court of Pakistan (2006 SCMR 434), when the period of absence stood regularized by the same 'authority who had passed orders of dismissal of the appellant from service through grant of leave without pay, then the very grounds for ousting the appellant from service, had vanished. The same view has been held by this Tribunal with consistency in many judgments in identical appeals. Therefore, considering the sole fact that the period of absence of the appellant had been regularized by the concerned authority by granting him leave without pay for the same period. We accept the appeal and set aside the impugned orders,
5. Section 2(f)(ii) of the PEEDA Act, 2006 says that competent authority shall not be inferior in rank to the appointing authority but in the instant case, the appellant was appointed by DIG (Prisons)
Faisalabad Region, Faisalabad and the major punishment of removal from service was inflicted upon the appellant by Superintendent District Jail Faisalabad vide order dated 25.01.2010/ 09.02.2010, who was not competent to pass such punishment against the present appellant as the Superintendent was authorized vide Notification No, SOR-III (S&GAD) 1-20/2004-P dated 29.06.2010.
It is corollary of law that when basic order is passed by an incompetent authority, period of , limitation would not come in the way of the aggrieved person. Reliance is placed on 2014 SCMR 1189 and 2015 PLC (C.S) 151.
6. Even otherwise, in the present case, the Superintendent District Jail Faisalabad due to absence of the appellant, initiated proceedings against the appellant under the provisions of Punjab PEEDA Act, 2006 and at the same time, treated his said absence period as E.O.L vide his order dated 25.01.2010/ 09.02.2010, meaning thereby that he himself condoned/regularized his said absence as leave hence there was no occasion available for Respondent No, 1 for inflicting punishment impugned. This crucial fact also escaped from the notice of Respondents No, 2 & 3 while deciding departmental appeal as well as revision petition, hence committed material illegality. Needless to say that total absence of the appellant was less than one year hence major punishment of the appellant was less than one year, hence major punishment of removal from service does not commensurate with Section 7(f)(ii) of the PEEDA Act, 2006.
7. By taking legal light from the above mentioned dictums, this appeal is allowed and impugned orders are set aside to the extent of punishment of removal from service. Consequences shall follow.