S. ABDUL JABBAR KHAN (CHAIRMAN). -Nasim Ahmad Khan has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order of the respondent No. 2 dated 12-6-1980, to the extent, to which the appellant was ordered to be treated on leave due to him from 28-9-1977 to 22-6-1980 and stoppage of three increments with cumu--lative effect. He has impleaded Director- General, Local Government and Rural Development, Government of the Punjab and Secretary to Government of the Punjab, Local Government and Rural Development Depart--ment, Lahore, as respondents.
2. By virtue of this appeal it has been prayed that order of the Secretary, L.G. & R.D. Department's order, dated 29-5-1980, to the extent, it has stopped the three increments of the appellant with cumulative effect and treatment of his period of absence since his retirement to the date of his re- instatement to service as leave due to him, be set aside.
3. Brief facts of the case are as under: That during the first week of October, 1977, when the appellant was working as Development Officer, P.W.P., Bahawalnagar he fell seriously ill. He was treated by M. S. District Headquarter Hospital, Bahawalnagar initially who advised him to get Specialist treatment at B. V. Hospital, Bahawalpur.
This was done by the regular permission of his superiors and appellant remained under treatment of Assistant Professor of Medicines of B. V. Hospital, Bahawalpur. The appellant before he was fully recovered, joined his duty on 14-10-1977 and kept working till 1-3-1978. As ill-luck would have it, the appellant again developed the same disease and --from 2-3-1978 to 29-12-1978, he was confined to bed under medical advice, as he was suffering from heart disease. However, he kept on applying for medical leave.
4. On 30-12-1978, the appellant submitted his joining report to the Director, Local Government, Bahawalpur, who vide a memo. Dated 13-1-1979, directed the appellant to contact the Government for his posting. The result was that appellant was informed to produce his certificate of fitness from the medical authority. To this he complied with but he was not given any posting order. Instead of any posting order a show-cause notice was received by him to show cause, as to why he should not be awarded one of the major penalties mentioned in the Punjab Civil Servants (E & D) Rules, 1975, for wilful absence from duty. The appellant filed his written statement, was heard in person and was compulsorily retired from service with retrospective effect by respon--dent No. 1. He filed appeal against the said order, which was partially accepted on 29-5-1980, by respondent No. 2, who re-instated him in service but stopped his three years increments with cumulative effect and also ordered that period from his retirement to date, should be adjusted against any leave due to him. Hence this appeal.
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. The main argument advanced by the learned counsel for the appellant is that when it was clearly accepted by respondent No. 2 that absence on the part of the appellant was not wilful but only technical in nature, as he proceeded on leave without waiting for its sanction on the medical advice, then it was not justified on his part, to punish the appellant with minor penalty.
7. On the other hand learned District Attorney has submitted that Appellate Authority did not completely exonerate the appellant and found that he had to wait for sanction of his leave and in this manner he absented himself from duty without a proper permission to do so. It has been further submitted that period of absence from retirement to the date of impugned order could be treated, as leave due, as this action was within the powers of the competent/appellate authority.
He has also assailed the appeal as barred by time.
8. We have given our anxious thought to the proposition so advanced and first of all will advert to the question of limitation, so raised by the learned District Attorney against this appeal. The fact of the matter is that the appellant was not aggrieved against the impugned order with regard to the treatment of his period from retirement to re-instatement but when later on he learnt that respondent No. 1 was placing a different interpretation against the one which was the interpretation and meant to treat him on leave from 28-9-1979, his mind to- agitate the same. It is also matter of record that this confusion was clarified after a long time, so the time spent in confusion, would be liable for condonation, .As the appellant could only agitate his grievance when he was clear in his mind, as to the cause of grievance and relief in that matter.
9. We, therefore, are of the considered opinion that the period so lost in getting the clarification deserves condonation and we condone the same by accepting the application of the appellant so filed before us under section 5 of the Limitation Act.
10. With regard to merits of the case, the first issue for adjudication is whether the period during which the appellant was on medical leave and, also attended the office in between for which he was paid by the Govern--ment, can come within the observation of appellate order dated 29-5- 1980, or the said order will pertain to the period from his retirement to the date of acceptance of his appeal.
11. On this issue, to our mind there is no ambiguity involved. The order is so clear that it hardly needs any elucidation. It says as under: "The period from his retirement to date should be adjusted against any leave due." If there is any confusion then it is only in the mind of those why want to twist this clear order. Therefore, we hold that order dated 29-5-1980, pertains to the period after the first order was passed and thus a period which will be treated as leave due, will only be this order and will not relate to any other period.
12. With regard to second issue as to whether this order could be passed by the appellate authority when the same has exonerated the appellant from the charge of wilful absence, we are of the confirmed view that this order is legal and is within the competence of the authority so making the same. Section 16 of the Punjab Civil Servants Act, 1974 allows these powers to the appellate authority and it is within its competence to determine the nature of such periods, we therefore, hold that no exception can be taken by the appellant to the determination of the nature of such period now under dispute. However, the stoppage of three increments of the appellant with cumulative effect cannot be called justi--fied. The appellate authority has observed in its judgment as under with regard to issue of wilful absence : - "The record produced before me fails to establish the charge of wilful absence and it would be improper to base a conviction on such record." With this clear cut observation, it does not permit the appellate authority to draw conclusion in contradiction to its earlier verdict. The words "I any case the penalty awarded to the appellant appears to be very harsh" absolutely out of context of its earlier finding. If the record fails to establish the charge of wilful absence then no punishment is called for. When the charge is not proved then the logical conclusion would be that person so charged be fully exonerated.
13. In view of our above analysis, we are of the considered opinion that minor punishment of stoppage of three increments with cumulative effect, is not justified and we set aside the same.
The appeal is accepted to the above extent.
14. However, there will be no order as to costs.