FAISAL ZAMAN KHAN, J.--- Through this petition, challenge has been thrown to orders dated 23.08.2012 and 31.05.2013 passed by respondents Nos,3 and 2 respectively.
2. Facts in brief are that petitioner was employed by the respondent-service as Deputy Director (Repair and Maintenance) (BS-18). On 25.06.2012 a show-cause notice was issued to the petitioner under the Punjab Emergency Services, Leave, Efficiency- and Discipline. Rules 2007 (Rules) on multifarious grounds which was duly replied, whereupon order dated 23.08.2012 was passed by respondent No,3 through which penalty of removal from service was awarded. Feeling aggrieved, an appeal was filed before respondent No,2 which was dismissed vide order dated 31.05.2013, therefore, this petition.
3. Learned counsel for the petitioner submits that under Rule 6 of the Rules, respondent No,3 was not invested with the powers to impose penalty of removal from service. He states that if petitioner was negligent in performance of his duties, a penalty of deduction of emergency allowance could only be imposed and there was no provision which entitles the respondent-service to impose any other penalty. He asserts that both the foras below did not consider the case of the petitioner in its true perspective therefore, the orders are not sustainable.
4. Conversely, learned Law Officer supports the impugned order and submits that the foras below have decided the case of the petitioner in accordance with law and major penalty under the rules has rightly been imposed.
5. Arguments heard. Record perused.
6. Before dilating upon the case in hand it shall be imperative to highlight that parties have been locked in litigation prior to the filing of present petition. Petitioner was initially employed on contract basis, subsequent to which when equally placed and juniors employees were regularized in service petitioner moved this Court through W.P. No,557-2012 which was accepted on 21.02.2012 and a direction was issued to the respondents-services to regularize him in service within 30 days.
7. For better appreciating the case of the parties, it will be imperative to reproduce the show cause notice issued to the petitioner. "Mr. Faisal Mehboob Khan Son of M. Mehboob Khan Deputy Director (Works/R&M) Punjab Emergency Service.
Subject:- SHOW-CAUSE NOTICE WHEREAS, the undersigned being the Competent Authority under the provisions of the Leave, Efficiency and Discipline Rules of the Service, in due consideration of the facts of the case is of view that, you Mr. Faisal Mehboob Khan, Deputy Director (Works/R&M) (BS-18) during probation have been found to be unfit for working in an emergency service on the following grounds:- WHEREAS during probation your performance has remained un-satisfactory and in-spite of the repeated opportunities and incentives given to you, you failed to improve. WHEREAS, your performance has remained un-satisfactory right from the time that you joined the service since you tried to cheat the Authorities by submitting bogus and self-fabricated 2nd year transcript of B.Sc Engineering as declared by the University Authorities upon verification. In this regard you were also issued explanations vide letter No,1703(HR)/10(PES) dated 07th June, 2010 and 1763(HR)/10(PES) dated 15th June, 2010.
WHEREAS, during training your performance was most unsatisfactory amongst all officers, therefore, you were directed to repeat training. Whereas, during repeat training you were provided with an opportunity to join the service, keeping in view the fact that only one civil engineer had applied for the post of DD (R&M) and a project team was direly needed for monitoring the construction of Emergency Services Academy. However, you could not work with the most experienced Project Manager who was a retired Chief Engineer of C&W Department, therefore you had to be given the opportunity to work as Deputy Director (Repair and Maintenance).
WHEREAS, your performance as Deputy Director (R&M) remained unsatisfactory therefor you were advised to improve your performance on 20th October, 2010. You were again warned on 18th July and 20th September, 2011 to avoid inordinate delay in processing/payment of R&M bills. Your poor performance, monitoring and failure to come up with solutions for repair and maintenance of emergency vehicles resulted in making significant number of ambulances in major cities off road, as a result of which management of emergencies got compromised. Furthermore, your performance in getting the R&M of stations has also remained un-satisfactory as a result of which this function was hand-over to C&W Department.
Whereas, after the end of contract of Project Manager, you were directed to look after the Emergency Services Academy construction project from where you were found repeatedly absent an issued repeated warning for lack of interest in the project which also resulted in several shortcomings in the construction of Academy, thus wasting the time instead of expediting the construction work, which is still pending. As a result of your limited professional experience you were also not granted the powers of Chief Engineer by the Project Steering Committee, keeping in view the rapid inflation and your verbal commitment to improve your performance, you were granted with honorarium but you failed to show any improvement.
WHEREAS, in compliance with the orders of the Honorable Court, your services were regularized but you did not improve your performance, thus found to be inefficient. WHEREAS, your performance as Project Manger (works) for construction of Emergency Services Academy also remained un-satisfactory as also noticed by the representative of Home Department that the "Project Manger lacks professional experience to monitor such an important and huge development activity. During visit he did not even have the basic knowledge of project components. Whereas, you are the only officer who was not marking his attendance via thumb impression on Bio-Metric Device in order to cover your repeated late coming. In this regard, you were issued warning vide letter No,DA-11/2012(PES) dated 27th March, 2012 an then again advised in this regard on 7th June, 2012 to remove deficiencies and remain careful in future. Furthermore you are also in a habit of proceeding on leave without prior approval which is a clear violation of Leave, Efficiency and Discipline Rules of the Punjab Emergency Service and in order to cover your in-competencies you have been writing frivolous letters. Whereas, you were given repeated opportunities in the best interest of justice but you failed to improve your casual attitude and performance. Your attitude and conduct are unbecoming of an officer of this life saving Emergency Service which requires good attitude, nice behavior, diligence and efficiency while performing duties. NOW THEREFORE, during probation as you have been found to be un-fit for working in an Emergency Service, you are hereby called upon to show-cause in writing within seven days of the receipt of his notice as to why the penalty of Removal from Service should not be imposed upon you on account of above mentioned charges. Your reply to this show-cause notice should reach the undersigned within the said period, failing, which, it shall be presumed that you have no defence to offer. It may further be intimated whether you want to be heard in person or not.
Sd/- (DR. RIZWAN NASEER)
DIRECTOR GENERAL: (Underlining is mine)
A perusal of the show-cause notice would show that petitioner has been proceeded against on allegations of unsatisfactory/poor performance, inefficiency and absence from duty.
8. In order to proceed against an employee working for the respondent-service, offences and penalties have been described in Rule 6 of the Rules which for convenience is reproduced:-
6. Special offences and penalties.- (1) If an official:
(a) fails to follow the appearance, dress or customs of the Service in accordance with the conduct regulations or instructions of the Director General, he shall be liable to deduction of uniform two thirds for the second and complete deduction for the third failure during a calendar month; (b)fails to follow proper procedure of handing over and taking over while leaving or reporting to duty; he shall be liable to deduction of once tenth of emergency allowance for each failure;
(c) fails to maintain an official document: he shall be liable to deduction of one tenth of emergency allowance for each failure;
(d) fails to maintain the cleanliness of a vehicle, equipment or official building; he shall be liable to deduction of one tenth of emergency allowance for each failure;
(e) fails to perform emergency duty as the vehicle becomes off road due to failure to efficiently maintain or get timely repairs done, he shall not be entitled to the emergency allowance for those number of days in which the vehicle remains off road; Explanation.- If for any reason, the transport maintenance in-charge or any other official is responsible for the delay in repair, he shall be liable to the same penalty.
(f) fails to follow the use of personal protective equipment while responding to an emergency, he shall be liable to deduction of one tenth of emergency allowance for each failure;
(g) activates emergency light and siren other than for responding to an emergency within a city, he shall be liable to deduction of one tenth of emergency allowance for each failure;
(h) fails to follow traffic rules while not attending an emergency, he shall be liable to deduction of one tenth of emergency allowance for each failure;
(i) fails to. follow the conduct regulations or instructions of the Director General, he shall be liable to deduction of emergency allowance which shall be one third deduction for the first failure, two thirds for the second failure and complete deduction of the third failure during a calendar month;
(j) is late for emergency duty without property intimation or permission from the reporting officer, he, shall be liable to deduction of one third of the emergency allowance for the first late arrival, two thirds for the second and complete deduction for the third late arrival during a calendar month;
(k) is found negligent during performance of duty, he shall be liable to deduction of emergency allowance which shall be one tenth deduction for each negligence and the same may be increased depending on the nature of the negligence;
(1) leave the duty without prior permission, he shall be liable to deduction of one third deduction of emergency allowance for each failure during a calendar month; and
(m) is absent from duty without prior permission of the reporting officer, he shall be liable to one fifth deduction of salary with allowances for each day's absence.
(2) The countersigning officer may, by order in writing, impose one or more penalties upon the accused official on the report of the reporting officer and subject to affording the official an opportunity of hearing.
(3) If an official commits more than three special offences in a month, the competent authority may, after servicing a show cause notice and affording the official an opportunity of hearing, terminate the contract of the official subject to one month notice or one month's pay, in lieu thereof, without assigning any reason. (Underlining is mine)
From the afore-noted Rules, it is clear and obvious that in case an employee is found negligent in performing his duties, is not following the conduct, regulation or instructions given by the respondents-services or is absent without intimation, he can at best be imposed penalties of deduction of his emergency allowance or deduction of 1/5th salary as the case may be. An exception to this Rule has been created by way of Rule 6(3), wherein it has been highlighted that in case an official commits more than 3 special offences in a calendar month, after issuance of a show-cause notice and an opportunity of hearing his contract can be terminated.
9. Placing the allegations raised against the petitioner in juxta A position with Rule 6 it is manifest that at best penalty of deduction of his emergency allowance or deduction of 1/5th salary could have been imposed on the petitioner and nothing more as the penalty of removal from service does not figure in the said Rule. As regard the exception created in Rule 6(3) the same is not applicable to the case of the petitioner for the simple reason that petitioner was a regular employee (admitted in parawise comments as well as paragraph 7 of the show cause notice) therefore penalty of termination of contract could not be imposed.
10. Since an allegation of inefficiency was raised against the petitioner, an option was available to the respondent-services to have proceeded against him under Rule 7 of the Rules by initiating proceedings under the Punjab Employees, Efficiency and Discipline Rules (Act XII of 2006) which provides for proceedings against an employee if he is:
(a) guilty of misconduct or any undesirable act;
(b) guilty of corruption or is reasonably considered to be corrupt;
(c) in-efficient; and
(d) engaged or is reasonably believed to be engaged in subversive activities, and his retention in service is prejudicial to national security or is guilt of disclosure of official secrets to any unauthorized persons.
11. From the aforenoted it is abundantly clear that since respondent No,3 under Rule 6 of the Rules was not invested with the power to impose penalty of removal from service, therefore, the order passed by him was not sustainable as a sequel to which the subsequent order was also not maintainable.
12. For what has been discussed above this petition is accepted as a corollary to which impugned orders are set aside. Petitioner shall be reinstated in service. The intervening period shall be treated as leave of its kind due. As regard the back benefits petitioner shall apply to the respondent- service, who after ascertaining as to whether petitioner remained gainfully employed during the interregnum period shall pass an order, in accordance with law.
13. It is however clarified that respondents-service is at liberty to either impose the penalty upon the petitioner as prescribed under Rule 6 or else proceed against the petitioner under Rule 7 of the Rules. Any observation made in this judgment will not prejudice the case of either of the parties.