S. ABDUL JABBAR KHAN (CHAIRMAN).-Javed Dastgir M1rza, Deputy Director, Auqaf Department, Government of the Punjab, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order of respondent No. 1 dated 25-3-1982 imposing penalty of censure under section 4(A)(I) of the Punjab Civil Servants (E & D) Rules, 1975.
2. By virtue of this appeal he has prayed that the impugned order be set aside as being void ab initio as well as against the facts.
3. Brief facts of the case are that the appellant while serving at Kahuta as Magistrate 1st Class, was required to attend Court at Lahore on 27-5-1981, pursuant to the summon of the said Court. Since his parents were to proceed on Umra two days after, he therefore, applied for 4 days leave as well.
After attending the Court at Lahore the appellant proceeded alongwith his son and daughter to see of of the parents on the evening flight of 28-5-1981 Karachi. As ill-luck would have it, Saira daughter of the appellant aged 9 years fell ill. She was taken to Naval Headquarters Hospital, Alshafa, Karachi, where she was diagnosed as patient of appendi--citis. The appellant brought her back to Lahore by next flight as he was not prepared financially to give treatment to her at Karachi.
The girl was admitted in Ganga Ram Hospital where she was operated upon on 5-6-1981, therefore, the appellant applied for further leave of four months.
4. The appellant received a communication from Secretary S & GAD dated 18-fs.1981, requiring him to submit his application on prescribed form to which appellant complied with. The appellant was suspend--ed vide an order dated 20-7-1981 on the charge of wilful absence. Inquiry was instituted and D. S. Local Government Punjab, Lahore, was appointed as E. O. However, the appellant was re- instated while the inquiry remained pending vide order dated 23-12-1981. Without hearing the appellant the A. C. S. Vide his order dated 19-12-1981, directed for withholding of one increment for a period of one year without cumulative effect on the charge of wilful absence. This order was communicated to the appellant against which he made a representation, which was not responded to. Meanwhile another order dated 8-2-1982, was passed by which the pay of the appel--lant during the period of suspension was disallowed to him. The appel--lant once again represented protesting that subsequent order was unprece--dented apart from putting him to double jeopardy. The appellant re--quested for personal hearing but no response was made. So aggrieved the appellant filed appeal before this Tribunal on 22-2-1982, against the im--pugned order. While the appeal was sub judice before the Punjab Service Tribunal, A. C. S., S&GAD passed an order dated 25-3-1982, in which he observed that after considering inquiry report and giving personal hearing, he has proceeded to impose minor penalty of censure under sec--tion 4 (A) (1) of the said rules on the appellant. The appellant his filed an amended appeal in which he has also challenged the validity of this order.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
6. Learned counsel for the appellant has submitted that the im--pugned order dated 25-3-1982, cannot be sustained as it suffers from the fatal flaw and is in fact an amendment of the earlier impugned order although without mentioning the same in it. According to the learned counsel as the first order was against the fundamental principle of natural justice, therefore, the same was void ab initio and the second order was in fact an attempt to rectify the mistake so committed in the earlier order by the A. C.S., therefore, the same was also void. Learned counsel has relied on a number of rulings of Supreme Court of Pakistan of High Court and of this Tribunal in this regard to show that such like procedure so adopted in the case of the appellant, was against the golden principle of fundamen--tal justice i.e. Audi alteram partem.
7. With regard to the merits of the case it has been submitted that the appellant was forced by the circumstances to proceed to Karachi and was involved in an other incident that is his daughter's illness. According to learned counsel, to proceed on leave by the appellant in the exceptional circumstances, cannot be considered as wilful absence and the action so taken on this was out of proportion to the technical offence of the appel--lant. Learned counsel has tried to convince us by producing a number of documents to show that the appellants parents did go for Umra and her daughter fell ill and later on was operated upon at Lahore.
8. Learned District Attorney on the other hand contends that no body can be permitted to proceed on leave- unless the same is sanctioned and the person is so intimated about it. According to the learned D. A. If it is held that such like omission or lapse on the parti of a civil servant are not to be taken into consideration, against him, this will give a licence to all tile civil servants to proceed on leave by just intimating his superiors of the same. With regard to the legal objection he has submitted that the A. C. S., could proceed against the appellant on the report of the Enquiry Officer and he has proceeded accordingly. It has been pointed out by him that the second impugned order does mention that the appellant was heard in person.
9. We have given our anxious thought to the arguments so made be--fore us by the parties and firstly we will advert to the issue so raised against the two impugned orders to find whether the same are void or not. In case we hold that the second impugned order is void then merits of the case pale into insignificance and need not be adverted to. It is proved from the record that while the first order dated 19-12-1981, was passed by which the penalty of withholding of increment for one year without cumu--lative effect, was imposed upon the appellant, the appellant was not heard in person. This contention of the appellant is fully supported by the con--tents of the order itself. This order does not mention that the appellant was given personal hearing at the time the above penalty was imposed upon him. Definitely this was fatal flaw which would have resulted in acceptance of the appeal by setting aside of the above order. The princi--ple of audi alteram partem is so well-known to recount and the impact of the same would have safely fallen with heavy force on this fatal flaw so committed in the above order. We are of the firm view that when this was noticed by the author of the earlier order he instead of withdrawing the same in totality, passed another order after hearing the appellant on the basis of the same Inquiry Report on which the earlier order was passed. If the A.C.S./Authority did realise after receipt of the copy of the appeal pending before the Tribunal that his order suffered from fatal defect for not giving personal hearing to the appellant, he would have been well advised to withdraw the order completely and to issue a new show-cause notice to the appellant and then to proceed in accordance with the rules so laid down in this behalf. It seems the CS/Authority created a short cut and called the appellant and reviewed his earlier order by withdrawing the penalty of withdrawal of one year increment without cumulative effect, and substituting the same with minor penalty of censure instead. This is neither permitted under the rules nor can be upheld by us. In Collector, Sahiwal v. Muhammad Akhtar (1971 SCMR 681) the law so laid down after taking into consideration, a number of authorities is as under :--- ---Their Lordships of the Supreme Court have held that the principle, so far as this country is concerned, is accordingly well-settled that where notice required to be given by the statute is a mandatory notice, then the, failure to comply with such a mandatory require--ment of statute would render the act void ab initio as being an act performed in disregard of the provisions of the statute. Further--more any further action taken on the basis of such a void order would also be vitiated and the defect at the initial stage would be incurable by a hearing at a subsequent stage."
We are fully fortified in our above view so mentioned in the earlier part of our judgment that the A.
C. S. Could not rectify the mistake committed in the earlier order by passing a subsequent order vide the authoritative pronouncement of the highest Court of realm so cited above. We need not burden this file with a number of weighty pronouncements onthe principle of audi alteram partem as observed in the earlier part of this judgment this principle is enshrined in every statute and cannot be ignored.
10. In view of the above we need not go into the merits of the case whether the appellant was justified to leave without its prior sanction in the circumstances so given by him and feel satisfied that the impugned order in the present form and in the present circumstances cannot be upheld as legal. As the first order was void ab initio for the fatal flaw of not giving any hearing to the appellant, the second order which in fact would be a re--view of the first order, cannot rectify or cure the fatal flaw of the earlier order.
11. The result is we proceed to accept the appeal, set aside the im--pugned order as void ab initio.
The appellant has also made a grievance that his salaries during the period of suspension have been withheld by A.C.S./Authority and the same may be allowed to him. It would be sufficient to observe that once basic error does not remain in the field, any ancillary order passed on the same basis, would be also without any force or legal authority. We, therefore, direct that the withheld salaries be released to the appellant. There will be no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.