IJAZ UL AHSAN, J. Through this single judgment, we intend to decide Civil Petitions Nos. 1023-L of 2015 and 936-L of 2015 as they involve a common question of law.
2. Through the Petitions, the Petitioners have challenged the judgments oil the Punjab Service Tribunal, Lahore dated 25.02.2015 passed in Service Appeals Nos. 4337 of 2011 and 344 of 2012 (hereinafter referred to as "Impugned Judgments"). Through Service Appeal No. 4337 of 2011; the Respondent (Mst. Asghari Begum) had challenged the order dated 30.06.2009, whereby she was dismissed from service, and the order dated 05.11.2011 whereby her departmental appeal against the order dismissing her was rejected. Through Service Appeal No. 344 of 2012, the Respondent (Mst. Perveen Akhtar) had challenged the order dated 17.04.1996, whereby, her appointment order was withdrawn, the order dated 26.06.09, whereby, the said Respondent was dismissed from service and order dated 02.04.2012, whereby, her departmental appeal was rejected. The learned Punjab Service Tribunal (hereinafter referred to as "PSI") accepted the appeals of the Respondents and directed the Appellants to reinstate the Respondents immediately. Aggrieved, the Appellants have approached this Court.
3. The necessary facts giving rise to this lis are that the Respondents were employed as Teachers in their respective institutions. For the sake of clarity, the specific facts of both the petitions are divided and narrated as under:- CIVIL PETITION NO. 936-L OF 2015: Mst. Asghari Begum joined her institution at District Faisalabad. She was then transferred to District Jhang, and, was ultimately serving at the Government Girls High School, Chak No.152/JB, Tehsil Chiniot (hereinafter referred to as "School at Chiniot"). The specific allegation against Mst. Asghari Begum is that she managed to get the order through which she was transferred to the School at Chiniot which was subsequently found to be bogus. The said finding was confirmed through an inquiry report dated 24.07.2018. To this effect, the Headmistress of the School at Chiniot through her letter dated 30.06.2008 stated that there was no record of Mst. Asghari Begum's appointment in the School at Chiniot. Her salary was stopped; however, it was resumed because of a Court order passed by the Lahore High Court on 15.10.2008. An inquiry was again conducted against Mst.
Asghari Begum on 06.11.2008. She was found guilty on the charge noted above vide inquiry report dated 30.01.2009. Resultantly, she was issued a Show-Cause-cum-Personal-Hearing Notice.
Instead of replying to the Notice, she filed another Writ Petition which was disposed of with the direction to conduct a regular inquiry against the said Respondent. Thereafter, an inquiry committee was constituted in compliance with the order of the Lahore High Court, vide order dated 15.06.2009. Mst. Asghari Begum failed to partake in the inquiry proceedings. She was issued another Show Cause Notice on 27.06.2009, however, she failed to appear. Consequently, the penalty of dismissal was imposed upon her vide' order dated 30.06.2009. She filed a departmental appeal there against which was dismissed vide order dated 05.11.2011. She then approached the Service Tribunal, which accepted her Service Appeal and ordered her reinstatement.
CIVIL PETITION NO. 1023-L OF 2015: Mst. Parveen Akhtar was appointed as an Arabic Teacher in the Government Girls Elementary Education School 233/RB, Faisalabad. Her appointment order was withdrawn vide order dated 17.04.1996 because her appointment was erratic. She filed various Writ Petitions during the pendency of which, the said Respondent managed to get herself transferred from the aforementioned School to the Government Girls Elementary School, 209/RB, Faisalabad through a purportedly fake order dated 11.01.1997. Allegedly, four Teachers were transferred to the said school, however,. the name of the said Respondent was not included in them. When certain concerned officials started getting suspicious of the fact as to whether the Respondent was working in the aforenoted school pursuant to a proper order or not, she managed once again to get, herself transferred to Government Girls Elementary School 200/JB, Jhang and, finally ended up at the School at Chiniot, after allegedly hiding the fact that her initial appointment order was withdrawn.
An inquiry was conducted against Mst. Parveen Akhtar by the District Education Officer, Jhang, vide order dated 06.11.2018 which concluded that the transfer orders of the said Respondent were fake.
She was issued how Cause Notices dated 19.02.2009 and 23.02.2009. Instead of replying to the Show Cause Notices, she filed a Writ Petition and resultantly; a direction was issued that a regular inquiry be conducted to establish the charges levelled against the Respondent vide order dated 06.04.2009. The needful was done. Vide inquiry report dated 17.06.2009, Mst. Parveen Akhtar was found guilty and was then issued a Show Cause Notice dated 18.06.2009. She was dismissed from service vide order dated 26.06.2009. She filed a Service Appeal which was accepted, and another regular inquiry was ordered vide order dated 25.03.2011. The needful was done, Mst. Parveen Akhtar was issued several Show Cause Notices, charges against her stood proved for the third time, and, she was resultantly awarded the penalty of removal from service vide order dated 01.10.2011. Her departmental appeal was rejected vide order dated 02.04.2012.
4. The Respondents after their departmental appeals were rejected approached the Service Tribunal by filing their respective Service Appeals which were accepted and the Appellants were directed to reinstate the Respondents. Aggrieved, the Appellants seek leave to appeal against the impugned judgments of the Punjab Service Tribunal, Lahore.
5. The learned Additional Advocate General, Punjab appearing on behalf of the Appellants contends that the Respondents, in connivance with the officials of their respective Schools, managed to get transfer orders in their favour which were illegal and bogus. The Respondents managed to Cheat the department and procured bogus appointment/transfer orders, and were thus proceeded against under the provisions of the PEEDA Act, 2006. Further, that the appointment order of the Respondent (Mst. Parveen Akhtar) was withdrawn vide order dated 17.04.1996. She caused pecuniary loss to the government exchequer by concealing the fact that her appointment order was withdrawn, however, she concealed this material fact and continued to draw salary based on bogus transfer orders. Further, that the Respondent (Mst. Asghari Begum) filed various Writ Petitions, as a result of which, inquiry proceedings were held against her many times. She failed to defend herself, and, was consequently dismissed from service after following all codal formalities. Further, that the learned Tribunal could not have allowed the Service Appeals of the Respondents when sufficient material was available on the record which should not have been ignored by the Tribunal. As such, the learned Law Officer contends that the findings of the Tribunal are erroneous and liable to be set aside.
6. The learned Counsel for the Respondents has fully supported the impugned judgments. His main argument is that the order of withdrawal of the Respondent was void because her appointment was not erratic. Further, that the transfer order of the Respondent was obtained through proper channel, therefore, the inquiry in this regard was arbitrary.
7. We have heard the learned Law Officer and the learned ASC for the Respondents. An examination of the record shows that the Respondents were issued numerous Show Cause Notices, however, inquiry proceedings could not be completed against the Respondents because of non-availability of the relevant record. In the case of Mst. Asghari Begum, an inquiry report dated 24.07.2008 confirmed that her transfer order was bogus. A letter of the Headmistress of the School where the said Respondent was working dated 30.06.2008 was acquired by the department under an investigation, which stated that there was no record of the Respondent's appointment in the said School. Resultantly, her salary was stopped. She then filed a Writ Petition in the Lahore High Court which was allowed in terms of a statement made by the D.E.O on 15.10.2008. Inquiry Proceedings were again initiated against the said Respondent on 06.11.2008 and, the said Respondent was found guilty. She was dismissed from service vide order dated 30.06.2009 after affording her the opportunity of personal hearing. Instead of appealing before the EDO, the said Respondent filed an. appeal before the DCO, Chiniot, who was not competent. The said Respondent then managed to get another letter dated 13.02.2010 from the DCO, stating that departmental proceedings against her had been quashed. She then filed another Writ Petition, by way of which, she was directed to file an application before the Secretary Education. She filed the said application on 07.09.2011 after one year, and the said Secretary dismissed the same vide order dated 05.11.2011.
8. Similarly, Mst. Asghari Begum's salary was stopped after her order of appointment was withdrawn. She filed a Writ Petition to this effect, through which, it was ordered that her salary be resumed. During the pendency of the said Writ Petition, she managed to get a fake transfer order dated 11.01.1997. There was no record available of the said Respondent's service from 17.04.1996 to 11.01.1997. She continued to work on the basis of the said fake order till 04.11.2000. When the concerned personnel discovered that her transfer order was fake, the DEO removed the said Respondent from service. The Respondent once again managed to get herself transferred and in doing so, concealed the fact repeatedly that her appointment order had been withdrawn. An inquiry was initiated against the said. Respondent vide order dated 06.11.2008. She was issued Show-Cause Notices dated 19.02.2009 and 23.02.2009. Instead of replying to the said notices, she filed a Writ Petition. The High Court vide order dated 06.04.2009 directed, the department to proceed against her by initiating a regular inquiry. The needful was done, she was again issued a Show Cause Notice dated 18.06.2009 and was dismissed from service vide order dated 26.06.2009.
She then filed another Writ Petition and was directed to file an application before the Secretary outlining her grievances. Her application was dismissed on 25.02.2010. The said Respondent then filed a Service Appeal and vide order dated 29.09.2010, the Respondent was reinstated. As per the direction of the Tribunal, another inquiry was conducted against the Respondent vide order dated 25.03.11. Ultimately, after an inquiry and the issuance of numerous Show Cause Notices, the Respondent was removed from service vide order dated 01.10.2011. She then issued grievance notices and, was called to explain her position several times, however, she failed to do so. Her departmental appeal was then dismissed vide order dated 02.04.2012.
9. It is abundantly clear from the aforenoted sequence of facts that the Respondents were time and again asked to produce evidence and furnish their defence. They were sent Show Cause Notices on various dates spanning over years, however, the Respondents failed to furnish a plausible justification, and, the competent authority while following all codal formalities, dismissed/removed the Respondents from service. The Respondents have themselves admitted that de novo inquiries were conducted against them, however, the said inquiries were not up to the mark. We have repeatedly asked the learned counsel for the Respondents to take us to any evidence on the record which established this assertion, however, he has been unsuccessful in doing so. Merely stating that inquiry proceedings were conducted in a slipshod manner is not enough to set aside the proceedings. Cogent and reliable evidence is required to establish a fact by the party that alleges it. The Respondent (Mst. Parveen Akhtar) admitted before the learned Tribunal that her departmental appeal was rejected merely on the basis that she failed to appear for personal hearing. The learned Tribunal has held that the Respondent was not granted an opportunity to defend herself. We are of the view that this finding of the Tribunal is erroneous for the fact that, when the Respondent herself is stating that her departmental appeal was rejected because she did not appear for personal hearing, it cannot be held that she was not afforded an opportunity to defend herself when she herself has admitted that she did not appear for personal hearing. The finding of the Tribunal in this regard is unsustainable and erroneous.
10. The learned counsel for the Respondent (Mst. Asghari Begum) submitted that the major penalty of dismissal from service was imposed upon the Respondent vide order dated 30.06.2009 contrary to the proposed penalty, therefore, the order of dismissal was rightly set aside by the Tribunal. We are enable to agree with this for the reason that the fact that a penalty is proposed does not necessarily mean that it has to be imposed in letter and spirit. To propose means that the competent authority can accept, reject or modify the proposal which is in the form of a recommendation. If the competent authority is of the view that the recommended penalty is lenient, in the absence of any mala fide, the competent authority is at liberty to enhance the penalty. Several Show Cause Notices were issued to the said Respondent, however, instead of replying to the said notices, the Respondent was involved in vexatious litigation which prolonged the matter even further. The Petitioner-Department complied with all the orders of the High Court and reinitiated inquiry, proceedings against the Respondents, however, the Respondents failed to defend the charges against them. The learned Tribunal in this regard has failed to minutely examine the record and pass an order based on the available record. We are of the view that, the Respondents were given several opportunities to defend themselves, however, they misused the powers of the courts and protracted the inquiry proceedings till such time that their appeal reached the Secretary Education, which too, was rejected.
11. We have examined the letter dated 17.04.1996 which states that the appointment order of Mst.
Parveen Akhtar was withdrawn since her appointment was found erratic. The fact that her appointment order was withdrawn finds further support from the letter dated 28.11.2008 of the Senior Headmistress, Government Girls High School, Satellite Town, Jhang which reads as follows:- "Mst. Parveen Akhtar daughter of Fazal Muhammad has been appointed as Arabic Teacher vide order dated No. 39 -- 46 but her appointment order was withdrawn due to erratic appointment vide Order No. 1001 - 1005 dated 17.04.1996." (Underlining is ours)
Despite such withdrawal, the Respondent managed to get bogus transfer letters, and, ultimately, switched three Schools and ultimately E ended up at the School in Chiniot, where her services were terminated. We have time and again confronted the learned counsel appearing for the said Respondent to answer our query as to whether the said Respondent told the School Administration that her appointment was withdrawn, however, the learned counsel has been unable to offer any plausible explanation and has attempted to deflect the Court queries. It is pertinent to mention that the order of withdrawal dated 17.04.1996 was never challenged by the said Respondent, even though she remained in continuous litigation throughout the years, this aspect of the case has been ignored by the learned Tribunal. Even otherwise, the learned Tribunal in its judgment has set aside the orders without adverting to the record. The record speaks volumes of the Respondent's conduct, who was afforded several opportunities to defend herself, however, she did not do so. It was after almost 19 years that the Respondent awoke and realized that her appointment' order was withdrawn. The case of the Respondent is hit by the principle of lashes duo to the fact that she remained in a slumber throughout these, years and it was only after the Respondent was dismissed that she realized that she had to challenge her order of withdrawal. It is a settled principle of the law that a litigant who sleeps on his rights has no right to claim relief. Admittedly, the Respondent challenged her order of withdrawal after 19 years, and, as such, is not entitled to claim any relief at this stage.
12. The learned counsel for the Respondent (Mst. Asghari Begum) submitted that the transfer orders issued in favour of the Respondent were valid and verified and, she was therefore validly working against her post at the School in Chiniot. We have before us a verification letter of the Headmistress of the School at Chiniot dated 03.06.2008 which states that Mst. Asghari Begum was neither employed in the said School nor was any record of her employment available at the said school. Further, the officials who were involved in issuing the said bogus transfer letter were also penalized by the Secretary, Government of Punjab Schools Education Department vide order dated 09.06.2010 in departmental proceedings. As discussed above, the said Respondent was dismissed vide order dated 30.06.2009. Instead of appealing before the EDO against the order of dismissal, the Respondent filed an appeal before the DCO Chiniot who was not competent to hear her appeal. The learned Tribunal has overlooked this aspect of the case and has concluded that her transfer was not only valid, but, was verified. As such, the findings of the learned Tribunal in this regard are patently erroneous and unsustainable.
13. Admittedly, the Respondent did not file a departmental appeal before the competent authority.
Instead, she got a letter dated 13.02.2010 from the DCO which stated that departmental proceedings against her were quashed. To avail any remedy before the Service Tribunal, it is necessary that a departmental appeal is filed before the competent forum. If no such departmental appeal is filed, it is by now a settled principle of the law, that a subsequent service appeal filed would not be maintainable. Admittedly, the Respondent filed an application before the Secretary, Schools Education on 07.09.2011 after a lapse of one year, which was dismissed vide order dated 05.11.2011. The law requires a departmental appeal to be filed within 30 days of an order. The Respondent availed all other remedies except a departmental appeal which was crucial for her case and, the Tribunal totally overlooked this aspect of the case and proceeded to reinstate the Respondent, which is erroneous and an incorrect exercise of jurisdiction. The Tribunal could not have entertained the appeal of the Respondent in the absence of a departmental appeal.
14. The upshot of the above discussion is that the Respondents failed to establish their cases before the competent fora and were involved in vexatious litigation throughout. They were given ample opportunities to defend themselves, however, they failed to do so. As a result of their deception, the government exchequer suffered pecuniary losses. All of these aspects were left unconsidered by the learned Tribunal. The findings of the Tribunal are against the relevant law and warrant interference by this Court. As such, we find the impugned judgments to be unsustainable in law as well as fact and liable to be set aside.
15. For the reasons recorded above, these petitions are converted into appeals and allowed. The impugned judgments of the Punjab Service Tribunal, Lahore dated 25.02.2015 are accordingly set aside.