' Succinctly stated, the appellant Dr. Nisei- Ahmad Ch. While working as Orthopedic Surgeon at the Govt. Sardar Begum Hospital, Sialkot proceeded on leave from 15.03.2008 to 14.03.2009 and after its expiry he reported to the Health Department on the said date i,e, 14.03.2009. However, vide order dated 27.04.2009 issued by Secretary Health Department his services were placed at the disposal of EDO (Health) Sialkot for further posting where the appellant was adjusted at Govt. Sardar Begum Hospital, Sialkot. Accordingly, the appellant reported his arrival on 29.05.2009. Thereafter the appellant tendered his resignation on 09.06.2009. However while brushing aside the disposal of this resignation the competent authority/ Secretary Health Department proceeded against the appellant under PEEDA Act, 2006 by way of show-cause notice dated 30.07.2009 on account of absence from duty w,e,f, 15.03.2009. Meanwhile the appellant joined his duties on 16.11.2009 and remained serving till 31.12.2009 and thereafter left his place of posting w,e,f, 01.01.2010 without any official permission. Resultantly, the competent authority issued notices for personal hearing on 22.01.2010 and 04.03.2010 and after completing the hearing process exonerated the appellant from charges vide order dated 06.08.2011 and subsequently the appellant was posted at THQ Hospital, Sambrial w,e,f, 28.08.2011 vide an order dated 10.09.2011. Consequently he assumed the charge w,e,f, 28.08.2011 (F.N) vide charge assumption report dated 27.09.2011. Thereafter, the appellant submitted an application to Secretary Health Department on 20.10.2011 requesting therein regularization of the intervening period from 15.03.2009 to 28.08.2011 with the further request to adjust him against a vacant post' of Cardiologist at Govt. Sardar Begum Hospital, Sialkot for the pay purpose only.
2. Since appellant's representation was not taken into consideration, hence he filed a Writ Petition No, 7344/ 12 before the Hon'ble Lahore High Court, Lahore where vide an order dated 26.03.2012 Secretary Health Department was directed to decide the pending representation of the appellant within two weeks. However, the Secretary Health Department instead of deciding the fate of intervening period initiated disciplinary proceedings against the appellant under PEEDA Act, 2006 vide a show-cause notice dated 30.04.2012 on account of his alleged absence from duty from 13.07.2009 onward. Since direction of the Hon'ble Lahore High Court, Lahore was not being complied with, consequently appellant filed a Criminal Original No, 1818/W/2012. During its pendency the Secretary Health Department passed the impugned order dated 31.10.2012 awarding thf appellant penalty of dismissal from service on the charge of absence from duty w,e,f, 01.08.2009 to 27.08.2011.
Said order was called in question through departmental appeal dated 03.12.2012 preferred to Chief Secretary Punjab which remained unattended, hence appellant filed an Appeal No, 583/2013 before this Tribunal where vide order dated 15.05.2014 a direction was issued to the Chief Secretary Punjab to decide pending departmental appeal of the appellant within 60 days and the appeal was disposed of accordingly. Since the direction of this Tribunal was not complied with resultantly the appellant filed CM Application No, 576/2014 for its implementation, which was dismissed on 27.11.2014 being not competent in its present form as no service appeal was pending at that time before the Tribunal to which a C.M could be filed. Thereafter, in pursuance of it and after communication of the impugned dismissal order passed by the Chief Secretary Punjab this service Appeal is filed on 27.01.2015.
3. At the very outset it is argued by the learned counsel for the appellant that when he (appellant) filed CM Petition No, 576/2014 before this Tribunal a letter was issued by the Secretary Health Department on 30.09.2014 that appellant's departmental appeal had already been decided on 06.05.2013. However, alongwith the said letter the copy of order dated 06.05.2013 was not appended. Therefore, to obtain copy of the said order the appellant submitted an application to the Secretary Health Department on 20.10.2014 through registered post followed by another application dated 20.12.2014, whereupon copy of order dated 06.05.2013 was delivered to him on 16.01.2015 through registered post. In support of his contention he referred copy of registered envelop which is available at page 113 of the instant appeal. Therefore, learned counsel maintained that present appeal is well within time as the same was instituted on 27.01.2015 i,e, within a period of 30 days of its formal communication.
4. As far as merits of the case are concerned, learned counsel for the appellant contends that the impugned dismissal order dated 31.10.2012 is passed without conducting regular inquiry which is against the principle laid down in 1993 SCMR 603 and 2000 SCMR 1321. It is further argued by the learned counsel for the appellant that the impugned order was passed against the appellant by the Secretary Health while acting vindictively due to filing of a Crl. Org. No, 1818/W/2012 in the Hon'ble Lahore High Court, Lahore, where vide order dated 17.02.2012, he was summoned in the Court. It is further. Contended by the counsel for the appellant that the punishment awarded to the appellant do not commensurates with the alleged guilt which was to be assessed in the specific backdrop of this case. In brief, the punishment of dismissal from service is harsh in all respects, references; 2000 SCMR 60, 2006 PLC (CS) 953, 2008 PLC (CS) 877, 1997 SCMR 1471, 2002 SCMR 584.
5. It is further contended that the appellant never remained absent from duty because vide order dated 06.08.2011 passed by Secretary Health Department, the appellant had been exonerated from the charge of absence w,e,f, 15.03.2009. To 06.08.2011. It is further contended that the period of absence mentioned in show-cause notice dated 30.04.2012 starting from 13.07.2009 to 30.04.2012 is different from dismissal order which shows that the appellant remained absent from duty w,e,f, 01.08.2009 to 27.08.2011. Whereas in another office order dated 28.05.2012, the period of alleged absence is mentioned from 15.03.2009 to 30.04.2012. In, nutshell, the in-action on the part of the respondent side is proving the mala fide on their part. It is further added that the appellant holds about 25 years clean and unblemished service record at his edit and he never ever remained involved into any disciplinary proceedings throughout his service career. Therefore, he prayed for the setting aside of the impugned orders.
6. On the other hand the learned District Attorney negated the contentions raised by learned counsel for the appellant and maintained that both the impugned orders are just and liable to be upheld.
7. Arguments heard. Record perused.
8. Although no objection in specific terms is raised by the respondents with regard to maintainability of this second appeal however this Court is in agreement with the stance of appellant that first service appeal was disposed of by this Tribunal after a direction to Chief Secretary; to decide the pending departmental appeal of the appellant and when the same was not decided within stipulated period a Civil Miscellaneous Petition No, 576/14 was filed alongwith an amended departmental appeal but it was dismissed on 27.11.2014 being not competent in its present form. So the second service appeal i,e, present ode is in fact filed by the appellant on 27.01.2015 after communication of the final impugned order passed by the Chief Secretary Punjab, which is neither barred nor incompetent as the earlier one was not decided on merits.
9. So far as the question of limitation is concerned, the appellant made reliance upon registered postal envelop through which copy of the final order dated 06.05.2013 was received by him on 16.01.2015. According to him earlier to it the impugned final order was never communicated to him.
On the other hand department is of the 4 stance vide its letter dated 14.01.2015 that the order dated 06.05.2013 was issued through issue branch on 01.10.2014, however it is not known from which source it was sent to the appellant. Whether it was sent through registered post or through some other source. If it was sent through registered post then where is its receipt. Further in Para 16 of instant appeal the appellant categorically denied delivery of order dated 06.05.2013 before 06.01.2015. But while replying the said para the respondents instead of referring any documentary evidence just." alleged it "Incorrect", and the copy of order dated 06.05.2013 was provided accordingly. Obviously in the given scenario the pleas of appellant is established that the impugned final order was communicated to him on 14.01.2015.
10. It is well settled law that prosecution is required to prove its case against the accused persons beyond any shadow of doubt and on its own legs. But in the present case, the department failed to prove its case adequately. The absence period shown in the show-cause notice dated 30.04.2012 and dismissal order dated 31.10.2012 is different. There is no controversy on the fact that the appellant was dismissed from service without conducting regular inquiry. Further, the appellant was exonerated from the charge of absence from duty with effect from 15.03.2009 onward by the order of Secretary Health Department dated 06.08.2011 and this period cannot be taken as part of the charge leveled for punishment through subsequent departmental proceedings. Obviously to the extent of charge already found false, the appellant is not liable to be axed twice. It is evident from the specific backdrop of this case that when appellant demanded financial emoluments for the period from 15.03.2009 to 28.08.2011 another show-cause notice was issued to him on the charge of absence from duty and thereafter ousted from service which visibly reflects some personal vendetta on the part of punishing authority. Evidently, it is established that firstly appellant was made rolling stone on his return from long leave and thereafter punished on the allegation of inaction which was beyond his competence. For the sake of arguments if it is considered that appellant was found negligent towards his duties' even then the penalty awarded to the appellant is not justified rather too harsh particularly when there is no charge with regard to mala fide or corruption on the part of appellant.
11. So, in the given circumstances the impugned penalty seems too harsh being not commensuration with the volume of attributed negligence, The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The Hon'ble Supreme Court of Pakistan observes in its various judgments that in service matters, extreme penalty for minor acts depriving a person from right of earning would defeat the reformatory concept of punishment. Reliance is placed on 2006 SCMR 60. To punish a subordinate in a harsh manner without any just or legal cause always creates lack of interest which discourage a civil servant to prove himself an efficient and hardworking officer/official. It should be avoided.
12. For what has been discussed above, this appeal is partially allowed and impugned orders are modified in the manner that the penalty of dismissal from service is converted into withholding of annual increment for two years. Resultantly, the appellant is reinstated into service.. The intervening period during which he remained out of service is treated as leave of the kind due.