ABM HUSSAIN QURESHI, M EM BER-V. This appeal has been directed against the impugned orders dated .01.04.2016 and 17.08.2016 passed by respondents. No. 1 & 2 whereby due to alleged wilful absence from duty by the appellant who is SST teacher in Govt. Urban Area High School, Sahiwal the EDO (Education), Sahiwal/respondent No. 2 after serving a show-cause notice without holding an inquiry under the PEEDA Act, 2006 vide order dated 01.04.2016 imposed penalty of "Stoppage of four increments for one year". The appellant preferred an appeal against the said order before the District Coordination Officer, Sahiwal and vide order dated 17.08.2016 while maintaining the order of the respondent No. 2 appeal was dismissed.
2. Learned counsel for the appellant has contended that appellant was working as SST, Govt. Urban Area High School, Sahiwal when due to certain compelling medical reasons he could not attend his duty and sent an application for leave alongwith medical. certificate but instead of accepting that application when appellant had sufficient leave in his credit he was proceeded against under the PEEDA Act, 2006 and was awarded afore-mentioned penalty which itself is against law, void ab initio. He has referred a letter issued by the Principal of the said school whereby he has admitted that appellant had filed an application for leave for the said period which was not accepted. He has further referred a policy letter issued by the Secretary, Regulation Wing, S&GAD, Govt. of the Punjab dated 10.12.2010 addressed to all heads of departments in Govt. of the Punjab to make them sensitized that the awarding of penalty for more than one increment in one year is against rules as a civil servant only earns one increment in one calendar year. He contended that despite instructions issued by the Secretary, Regulation Wing S&GAD, Govt. of the Punjab the respondents awarded penalty of withholding of four increments for one year which is beyond comprehension as appellant could only earn one increment in one year thus how four increments will be withheld and such an illegal and void order is being wrongly interpreted by the concerned Accounts Office causing hardships for the appellant in release of salary.
3. Learned District Attorney conceded the legal position that withholding of more than one increment for one year of a civil servant is an illegal and improper order as the civil servant could earn only one increment in a calendar year.
4. Before proceeding further, I would like to decide the question of limitation as the appellant has also filed an application u/S. 5 of Limitation Act, 1908 for condonation of delay as after dismissal of his appeal by the appellate forum he filed some review petition before DCO Sahiwal respondent No. 1. Even the appellant has plausible reasons for seeking condonation of delay but I am of the view that when any illegal and void order is challenged question of limitation does not arise and in such cases there should be no bar of limitation as held in 2014 SCMR 1189.
5. Keeping in view the afore-mentioned facts and circumstances, the admitted position on the record is that appellant preferred an application for leave and when an application for leave is preferred such a civil servant cannot be marked absent as at the most if no leave was on his credit it could be treated as leave without pay but under any circumstances such a leave cannot be considered as absence, therefore, the department committed a gross illegality by treating the appellant as absent. Secondly, the penalty awarded to the appellant under Section 4 of PEEDA Act, 2006 for withholding of four increments for one year itself against the spirit of law as well as illegal and void and in violation of the said policy letter of the Regulation Wing of the Govt. of the Punjab. It would be convenient to reproduce the said policy letter in verbatim for ready reference:--- "No. SOR-I(S&GAD)I-50/2003(P-III)
GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (REGULATIONS WING)
Dated, Lahore the 10th December, 2010 To,
1. The Senior Member, Board of Revenue, Punjab.
2. The Chairman P&D Board, Punjab, Lahore.
3. The Additional Chief Secretary, Punjab.
4. All Administrative Secretaries in the Punjab.
5. All Commissioners in the Punjab.
6. The Provincial Police Officer, Punjab.
7. The Registrar, Lahore High Court, Lahore.
8. All District Coordination Officers in the Punjab.
9. All Heads of Autonomous Bodies, in the Punjab.
10. All Heads of Attached Department's in the Punjab.
11. The Secretary, Provincial Assembly; Punjab.
12. The Secretary, Punjab Public Service Commission, Lahore.
13. The Secretary, office of Provincial Ombudsman Punjab, Lahore.
14. The Registrar, Punjab Service Tribunal, Lahore.
15. The Secretary, Chief Minister's Inspection Team, Lahore.
16. The Accountant General, Punjab, Lahore.
17. All District Accounts Officers in the Punjab.
SUBJECT: CLARIFICATION REGARDING IMPOSITION OF PENALTIES UNDER THE PROVISIONS OF PEEDA ACT, 2006 Kindly refer to the subject noted above.
2. It has been brought to the notice of the Chief Secretary, Punjab that penalty of withholding of increment/increments is neither being recommended by the Enquiry Officers (EOs) nor awarded by the competent authorities as provided under Section 4(a)(ii) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. Some of the enquiry officers recommend award of penalty of withholding of 2/3 increments for a period of one year. It is worth mentioning that only one increment is earned in a calendar year, therefore, withholding of one increment may be awarded for a period of one year. In case more than one increments are to be withheld then the same should correspond to the number of years. For example, penalty of two increments may be awarded as under:- "withholding of annual increments for a period of two years "
3. In view of the above, competent authorities are requested to award minor penalty of withholding of increment or increments strictly as provided under Section 4(a)(ii) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
Sd/-.
(Rukhsana Nadeem Butta)
Addl. Secretary (Regulations), S&GAD"
The proposition is quite simple that if a civil servant earns one increment for a calendar year, how more than one increments can be withheld for one year. Unfortunately, such orders are being passed in routine by the authorities in the Departments of Govt. of Punjab without applying their judicial mind that such an order just creates new phase of litigation and unnecessary financial, physical and mental burdens upon the civil servants hence, such practice cannot be approved.
Thus, while setting aside the impugned orders being illegal and void minor penalty of "Censure" is awarded to the appellant. The said period of alleged absence may be treated as leave of the kind due.