JUSTICE (R) SHOAIB SAEED, CHAIRMAN-- Briefly , Additional District and Sessions Judge, Ahmadpur East vide letter dated 24.06.2015 made a report that appellant remained absent from duty on 24.06.2015 without any leave or information. Appellant was directed to submit his explanation, he submitted the same which was found not satisfactory .
2. Additional District & Sessions Judge, Ahmadpur East was appointed inquiry officer to hold a regular inquiry . The inquiry of ficer served appellant with the following statement of allegation:-- "That you Mr. Athar Sohail, Stenographer while posted in the Court of Mr. Faisal Raza Gillani, learned Additional District &. Sessions Judge, Ahmadpur East absented yourself from duty on 24.6.2015 without any leave or even information to your presiding of ficer, hence you are liable for inef ficiency and misconduct.
The undersigned has been appointed as inquiry officer by the worthy District and Sessions Judge, being competent authority , therefore, you are required to face the inquiry under the relevant provision of Punjab Civil Servants (E&D)
Rules, 1999."
3. After proceedings inquiry officer recommended major penalty of dismissal from service on appellant as provided under rule 4(b)(v) of the Punjab Civil Servant (E&D) Rules, 1999.
4. On receipt of the inquiry report dated 30.09.2015, authority issued personal hearing notice under rule 10 of the Rules ibid.
5. Consequently , competent authority District & Sessions Judge, Bahawalpur imposed major penalty of compulsory retirement on appellant vide order dated 03.10.2015. Appellant preferred departmental appeal before Registrar , Lahore High Court, Lahore which is still pending. Hence this appeal.
6. Learned counsel for the appellant contends that appellant submitted leave application for 24.6.2015 which was neither rejected or accepted. However , allegation of one day's absence from duty does not constitute misconduct under Punjab Civil Servants (E&D) Rules, 1999, as it does not come within the ambit of wilful absence. That impugned order has not been passed in a judicial manner rather it was passed in angry mood. That proper procedure was not adopted before awarding 'major punishment and he did not commit any misconduct. That impugned orders were passed in an arbitrary and whimsical manner without thoroughly sifting the material essential for awarding of penalty . It is averred that serious irregularities were committed by the department in this case.
7. Conversely , learned District Attorney vehemently opposed arguments raised by learned counsel for the appellant and supported the impugned orders. That appellant was given full opportunity to explain his position but he could not put forth any plausible explanation in his favour , therefore, punishment is quite just, fair and inconsonance to the gravity of the allegations levelled. He is rightly punished according to his guilt and does not deserve any leniency .
8. Arguments heard, record perused.
9. Perusal of record shows that during personal hearing before the authority appellant submitted verbal and written explanation but authority did not consider it and held appellant guilty of misconduct. On the other hand, appellant was awarded punishment of compulsory retirement from service on account of his absence only for one. day. The punishment imposed under the circumstances is too harsh.
10. That prior to appellant's absence on 24.6.2015 it is in inquiry report he sought leave for a day which was refused, instead of reporting for duty on pretext of dismantling of wall of his house he telephonically conveyed Ahmad regarding same showed inability to attend Court. No doubt when leave was refused appellant should have attended Court, but on the other hand the Inquiry Officer recommending "Dismissal from Service" keeping in view the guilt could have recommended milder penalty . The authority while modifying the Dismissal from service into compulsory retirement emphasized that it was done on appellant's request. Depa rtmental Representative placed appellant's written request in this regard before the Tribunal, appellant who was available when confronted with application stated request made was not voluntary or of free will but made under extreme mental agony and pressure as he was told that else-wise dismissal would follow .
11. It was argued that after receipt of pensionary benefits and drawing of monthly pension appellant cannot challenge the order of compulsory retirem ent. The receipt of dues cannot disentitle/debar appellant from seeking relief of reinstatement from the Tribunal. It is a question of fact to be determined on the basis of record whether compulsory retirement from service was out of free will/voluntary or under duress. However , appellant is directed to return/deposit all pensionary benefits alongwith monthly pensions received till to-date within 60 days hereof.
12. I am of the view that punishment of compulsory retirement awarded by the respondents to the appellant due to one day absence which too was not wilful is harsh and not called for. This level of misconduct does not commensurate the quantum of punishment as contained in the impugned order .
13. Be that as it may, the concept of major and minor penalty in the service laws is to determine the question of punishment in the light of nature and gravity of the charge. I find that in the present case, concerned authority without attending to this aspect, awarded major penalty of compulsory retirement to the appellant.
14. I am inclined to take a lenient view of the appellants mistake, this appeal is partially allowed , impugned orders are set aside, appellant is reinstated into service. The penalty of compulsory retirement from service is converted into withholding of increment for two years. Intervening period shall be treated as leave of the kind due.