ABDUL HAMID CHAUDHRY (MEMBER).-Muhammad Sadiq Malik, former Sub-Engineer, Provincial Buildings Circle, had made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded Superintending Engineer, Provincial Buildings Circle, Multan, Director, Administration, Office of the Chief Engineer, Buildings, Punjab, Lahore, and Chief Engineer Buildings, Punjab, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 16-6-1976 and 23-2-1982 be set aside and the appellant be re-instated in service with full benefits.
3. Brief facts of the case pare that the appellant, Muhammad Sadiq Malik, ex-Sub-Engineer attached with Provincial Buildings Division, D. G. Khan, was granted 4 months' leave on full pay on private affairs with effect from 1-3-1974 to 30-6-1974. Instead of resuming duty on 1-7-1974 the appellant applied for leave for 2 months from 1-7-1974 to 31-8-1974 on medical grounds and again 4 months' leave from 1-9-1974 to 31-12-1974 and from I-1-1975 to 1-4-1975 and 1-4-1975 to 30-6-1975 on the same grounds which had not been sanctioned by the competent authority on account of the fact that medical certificates had not yet been counter--signed by the Medical Superintendent concerned, as directed. The appel--lant was due to resume duty on 1-7-1975 but he neither applied for extension of leave beyond 30-6-1975, nor resumed duty on 1-7-1975. The appellant was charge- sheeted for wilful absence from duty but no response was received from the appellant despite the issue of final notice by Execu--tive Engineer, Provincial Building Division, D. G. Khan, vide his letter dated 6-5-1976, wherein he was called upon to furnish his defence to the charge sheet within a week positively. As there was no response from the appellant, he was found guilty of misconduct/u6lful absence from duty and dismissed from Government service with effect from 1- 7-1975 by Superin--tending Engineer, Provincial Buildings Circle, Multan, vide his order No. 132- E/5399/E(2) dated 16-6-1976. The appellant made a representa--tion to Chief Engineer, Buildings Department, Punjab, Lahore, which was also rejected by the Chief Engineer, Buildings Department, Punjab, Lahore. Vide his order dated 23-2-1982. Hence this appeal.
4. We have heard the parties. It has been argued by the learned counsel for the appellant that though the appellant was proceeded under the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1975, and a charge-sheet/statement of allegation was served upon the appellant but the requirement of rule 6 (4) and rule 7 of the Efficiency and Discipline Rules have not been met. No Enquiry Officer was appointed and no enquiry was held. Thus, the appellant was not provided an opportunity to defend himself, It was also argued by the learned counsel for the appellant that no charge-sheet/statement of allegation was received by the appellant. No enquiry was conducted.
The appellant could not put up his defence and, thus, prejudice has been caused against the appellant. It was submitted by the learned counsel for the appellant that it has already been held that in such cases where an appellant is charge-sheeted, the enquiry must be completed through an Enquiry Officer, under the Effi--ciency and Discipline Rules, although it may be ex part. He relied on the following judgments :-
(1) 1981 P L, C (C. S.) 125.
(2)PLD1968SC112.
5. It was also argued by the learned counsel for the appellant that no show-cause notice was issued to the appellant and he was also not heard in person. All the proceedings were conducted at the back of the appellant, who did not receive the charge-sheet and, thus, all the proceed--ings were carried out without giving an opportunity to the appellant to defend himself. It was submitted by the learned counsel for the appellant that these proceedings conducted at the back of the appellant are void a6 initio and unlawful.
6. An important legal point was also raised by the learned counsel for the appellant that as per Serial No. 11 of the revised schedule of Delegation of Power Rules of C & W Department which were substituted on 14-10-1975, the Superintending Engineer was designated as the "Authority" and the Executive Engineer concerned as the "Authorised Officer". As the proceedings under the Efficiency and Discipline Rules were conducted under these Delegation of Powers and the Superintending Engineer had punished him under these Delegation of Powers, it was incumbent upon the "Authority" that the Executive Engineer concerned who was the "Autho--rised Officer" as designated under these Delegation of Powers Rules, should have been allowed to function as an "Authorised Officer" and the "Autho--rity" should have punished the appellant on his recommendations/findings. Thus, the proceedings in this case have not been conducted according to the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and the impugned orders are unlawful and void ab initio.
7. The learned District Attorney also agreed with the view point of the appellant's counsel that the Superintending Engineer who has passed the impugned order was designated as "Authority" in respect of the appellant vide Serial No. 11 of new Delegation of Powers, substituted on 14th October, 1975," and the dismissal orders were passed by the "Authority" in pursuance of these powers. In these Delegation of Powers the Executive Engineer was designated as the "Authorised Officer", hence the "Authorised Officer" should have been allowed to discharge his functions against the appellant for proceeding against the appellant under the Efficiency and Discipline Rules. Thus, the proceedings against the appel--lant under the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1975, have not been followed properly.
8. We have given our anxious thoughts to the arguments of the parties and have also perused the record of this case so produced by the respon--dents. While offering the comments on the representation of the appellant against the dismissal orders, the Superintending Engineer, Provincial Build--ings Circle, Multan; vide his letter No. PF/116 dated 4-9-1976 vide para. 5, addressed to the Chief Engineer, Punjab, Buildings Department, Lahore, it has been admitted as follows :- "In the meantime the Superintending Engineers have been declared competent authorities in respect of permanent as well as temporary Sub-Engineers vide Sl. No. 11 of New. Delegation of Powers. In pursuance of that power, the dismissal orders of the Sub-Engineer were issued by the undersigned which are in order."
Thus, the "Authority" had proceeded under the substituted delegation of powers, 14th October, 1975, wherein according to rule 11 of the Schedule, the Superintending Engineer is the designated "Authority" and the Execu--tive Engineer concerned as "Authorised Officer" under the Efficiency and Discipline Rules, 1975. Accordingly, the Executive Engineer concerned, the "Authorised Officer" should have been allowed to function as per Efficiency and Discipline Rules. As this was not done, hence proper proceedings under the Efficiency and Discipline Rules have not been adopted.
9. Furthermore, I have consulted' the record of this case from the files produced by the respondents. There are so many letters wherein the Superintending Engineer had been pressing for supply of the duplicate copy of the charge-sheet/statement of allegation duly signed by the appel--lant; but this was never produced to him. It proves that the charge-sheet/ statement of allegation was not served upon the appellant. A registered/ A.D., notice was also served to the appellant vide Executive Engineer, Provincial Building Division, D. G. Khan vide his letter No. PF/8980/CS, dated 6-5-1976 but it is not clear from the file that this notice (said to be final notice) was received by the appellant. Thus, the record shows that the appellant has been proceeded without service of a charge-sheet/statement of allegations upon him and, thus, he has not been provided opportunities to defend himself. We also are in agreement with the learned counsel for the appellant that when the appellant was charge sheeted, an enquiry should have been conducted against the appellant as per requirements of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It is also surprising that when the impugned order of dismissal was passed by the "Authority", the appellant was not afforded an opportunity of personal hearing and an ex parte decision was taken simply on the ground that no response has been received from the, said Sub-Engineer despite the issue of final notice by the Executive Engineer. It is on the record of the Superintending Engineer, Provincial Buildings Circle, Multan, that the duplicate copy of the charge sheet/statement of allegations duly signed by the appellant was not produced to his office by the Executive Engineer, Provincial Buildings Division, D. G. Khan (letter No. 1276/CB, dated 6-3-1973 from the Provincial Buildings Division, D. G. Khan, to the Superintending Engineer, Provincial Buildings Circle, Multan): Thus, it is clear that all the proceedings were conducted at the back of the appellant and he has been prejudiced in his defence.
10. Keeping the above analysis in view, the impugned orders are set aside, we remand the case to the "Authority" to proceed afresh against the appellant strictly in accordance with he Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the latest Delegation of Power Rules. The appellant is directed to be reinstated in service to bestow upon him the status of a civil servant for proceeding afresh by the "Authority" against him. The status of the period from the date of dismissal of the appellant to that of the date of re-instatement will also be decided by the "Authority" when the fresh proceedings are conducted against the appellant and the case is concluded by him as the merit of the case is also to be looked into by the Authority on the production of defence by the appellant.
There will be no order as to costs.