MUHAMMAD YAR WALLANA, MEMBER --Succinctly stated, the appellant Mushtaq Ahmad. Primary School Teacher, Government Primary School, Ghazi Wala, Tehsil Kahror Pacca, District Lodhran was 'proceeded against under the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 by way of show-cause notice bearing No, 304 dated 18.03.2013 and another show-cause-cum-personal hearing notice bearing No, 942 dated 30.06.2014 on the charge that on expiry of study leave for Ph.D. English from Islamia University Bahawalpur for the period from 21.02.2005 to 20.02.2009 he remained absent from duty and resultantly major penalty of removal from service coupled with recovery of Rs, 275043/- was inflicted upon the appellant by respondent No, 3 vide impugned order bearing No, 994/Admn, dated 17.07.2014, where against, departmental appeal preferred by the appellant before respondent No, 2 was rejected vide order bearing No, 3535/CC, dated 14.11.2014. Hence, this appeal is filed on 06.01.2015.
2. Learned counsel for the appellant submits that the charge of absence levelled against the appellant is incorrect and based upon mala fide. Further submits that the appellant tendered his resignation to the competent authority/respondent No, 3 through 'registered post vide receipt No, 1145 dated 06.08.2010, which was duly received in the department as is evident from impugned order dated 14.11.2014 of respondent No, 2, but the competent authority neither accepted nor rejected the same and kept it pending and after about two and half years initiated disciplinary proceedings against the appellant on the so-called charge of absence from duty which reflects mala fide of the departmental authorities. On the strength of law laid down by the Hon'ble apex Court in Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO)
Karachi v. Ahmad Mumtaz Mustehsah and another 2000 SCMR 890 and Qaiser Zeman v. Federal Board of Revenue, Islamabad and others 2015 PLC (C.S) 243 learned counsel for the appellant maintained that tendering of resignation was a right of the appellant to put an end to his service and the authority competent to--accept the resignation was bound to process the same and the appellant could not be compelled to serve the department. Therefore, learned counsel for the appellant prayed for acceptance of the instant appeal.
3. Conversely, the learned District Attorney submits that the appellant was granted study leave from 21.02.2005 to 20.02.2009 (four years) for studies in Ph.D. (English) in Islamia University Bahawalpur; that as per instructions of the department after qualifying Ph.D. the appellant was bound to serve the department for further 10 years and in case of failure the appellant was bound to pay a sum of Rs, 100000/-, but the appellant after qualifying Ph.D. neither served the department nor deposited Rs, 100000/- in the government treasury, rather got himself appointed as Lecturer in Islamia University, Bahawalpur and for the said reason his resignation was not processed and disciplinary proceedings were initiated against him.
4. I have heard arguments of learned counsel for the appellant and learned District Attorney advanced at the bar and have gone through the record.
5. The respondents have taken plea against the appellant that he wilfully absented himself from duty after expiry of study leave on and that he joined Islamia University Bahawalpur as Lecturer without obtaining requisite NOC from the parent department, hence, the resignation tendered by him without mentioning any date was a meta fide attempt at his part to thwart disciplinary proceedings against him. As this is the crux of the basis of contest qua this service appeal as well as the justification for initiation of disciplinary proceedings and consequent removal- of the appellant from service alongwith recovery of Rs, 275043/-, I have minutely gone through the record and find that the appellant has appended copy of his resignation from service, which mentions date as 26.07.2010 and the photocopy of postal receipt of dispatch of the said letter addressed to District Education Officer (EE-M), Lodhran, which are available at pages No, 58 and 59 of the annexures of the appeal. The respondent No, 2 in his order dated 14.11.2014 of dismissal of the departmental appeal has also mentioned that the appellant had tendered his resignation through a registered cover letter on 06.08.2010. The impugned initial order passed by respondent No, 3 itself carries mention of initiation of disciplinary proceedings by way of issuance of notice bearing office No, 304 dated 18.03.2013 and another show-cause-cum-personal hearing notice bearing office No, 942 dated 30.06.2014 and the impugned initial order of removal from service alongwith imposition of recovery of Rs, 275043/- was passed on 17.04.2014. The resume of the disciplinary proceedings aforesaid reflects that the written resignation of the appellant had reached the office of respondent No, 3 at least two and half years prior to issuance of first notice for disciplinary proceedings and the respondents have absolutely failed to justify or to explain as to why the competent authority had failed to consider the resignation submitted by the appellant and that they remained dormant and neither accepted , the same nor rejected it. No such order of acceptance or rejection of the resignation has been produced before this Tribunal.
6. When a civil servant tenders resignation the competent authority is under legal obligation to apply its mind and while applying mind for acceptance or rejection of the resignation it has to examine service record of the civil servant in order to find out following three aspects:--
(i) Whether any disciplinary proceedings based upon misconduct, negligence in performance of official duties or on the charge of corruption were pending after their due initiation by the competent authority?
(ii) Whether the civil servant was facing some sort of charge of criminal acts of omission and the resignation was motivated to avert or avoid such criminal liability and consequent disciplinary proceedings?
(iii)Whether the resignation was aimed at avoiding disciplinary proceedings under way or likely to be initiated on the basis of certain omission and commission of the civil servant prior to the date of tendering of resignation? In case of rejection of resignation particularly the competent authority must record good reasons for such rejection and these must be communicated well in time to the civil servant as such an order has peculiar repercussions qua rights of service, so that the civil servant knows about the particular reasons of rejection and he could form an opinion for availing remedy before proper forum against such rejection of resignation.
It is also worth consideration that the competent authority under intrinsic inquiry regarding valid tender of resignation has also to ascertain whether the resignation was voluntarily made and it did contain signatures of the civil servant and while proceeding to ascertain voluntariness of the resignation the competent authority had also to ascertain whether the civil servant was compelled to submit such resignation by virtue of inaction at the part of the public functionaries to accede to a genuine request of the civil servant and in case the authority did detect any such mala fide or malice at the part of responsible officials of the Organization then such a resignation would be deemed a non-voluntary resignation and the competent authority may decline to accept it in the best interest of public as well as the civil servant. The public functionaries are not only under moral but also legal obligation to act in a reasonable manner and also to be benevolent towards civil servants, rather to act on false ego and prestige to resultantly promote unlimited litigation at public expanse.
7. The consideration of resignation has thus to rest upon the aforesaid grounds and the authority would be well within legal confines if it considers existence of any of these grounds as a motivating factor behind such resignation and if no such element was available or supported by cogent material, the competent authority is under legal obligation to accept resignation of the civil servant. The competent authority is, however, not justified to cause undue delay in acceptance or rejection of the resignation in any case. The process of acceptance or rejection of the resignation should not be unnecessarily delayed. it should in all cases be finalized within a reasonable time and it must contain good reasons for acceptance or rejection within the four corners of Section 24 of the General Clauses Act, 1897 so that the civil servant comes to know the explicit reasons for rejection of the resignation in order to avail remedy at the proper forum against such order.
8. The civil service is a right of every citizen of the State subject to fulfillment of requirements of selection by a due process of selection and the service is a contract between the employer i,e, government and the employee i,e, civil servant subject to all just and fair terms and conditions for continuance of service but there is hardly any bar upon civil servant to continue the service against his wishes and it is why the law empowers him to tender resignation in case he feels ,unwillingness to continue the civil service. Except the afore-mentioned conditions, the civil servant is not at the mercy of the competent authority for acceptance of his resignation as no civil servant can be compelled to continue service against his wishes. The rendition for acceptance of resignation can also contain other peculiar conditionality for serving the department in view of the service advantages obtained by the civil servant like that of study leave and proceeding abroad at State expanses while tendering some sort of bond for continuance of service. In lieu of these concessions and advantages afforded to a civil servant, if. the authority acts within these limits, the order of acceptance or rejection of the resignation may be acceptable. But there is no gainsaying that the competent authority cannot sleep over the resignation fora long time. I have been enlightened from the wisdom of their Lordships of the Hon'ble apex Court expressed in Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi v. Ahmad Mumtaz Mustehsan and another 2000 SCMR. 890 and Qaiser Zaman v. Federal Board of Revenue, Islamabad and others 2015 PLC (C.S) 243.
9. In present case the appellant has been burdened with a recovery of Rs, 275043f- alongwith removal from service, but this_ liability was not determined by an appropriate and regular inquiry process by affording right of defence to the appellant and by confronting him with the allegations by serving statement of allegations alongwith show-cause notice and receiving his written defence. For all these reasons this service appeal is accepted and the impugned initial order dated 17.07.2014 and the departmental appellate order dated 14.11.2014 are declared null and void and of no legal consequence. The competent authority is directed to deciae the fate of the resignation tendered by the appellant for the purpose of recovery of any government dues, to serve the statement of allegations as well as the show-cause notice containing explicit allegations against the appellant and he would be afforded proper right of hearing before passing any final order on the same. This appeal is accordingly disposed of with these directions to the respondents.