MALIK ZAWWAR HUSSAIN (MEMBER).,----Sh. Nazir Ahmad ex-J.V. Teacher has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974 against the order dated 14th January, 1981, passed by the District Education Officer, Sahiwal, whereby his services were termi--nated on account of his continuous wilful absence from the duty. He has impleaded the District Education Officer, Sahiwal as the only respondent in the case and has prayed that the impugned order dated 14th January, 1982, be set aside and he be re-instated in service with consequential benefits.
2. Brief facts of .The case are that the appellant was working as J. V. Teacher in the year 1978 at haveli akha Town which was his native place from where he was transferred to Government Primary School Village Wassu Salam Ka, Tehsil Dipalpur, District Sahiwal in the year, 1979. The residents of the village and other persons filed complaints to the authorities that the appellant was not attending the school and they requested for an enquiry and taking an action against the appellant. Consequently the Deputy Commissioner, Sahiwal deputed a Magistrate to pay a surprise visit in the school to probe into the matter. The said learned Magistrate conducted the enquiry and submitted a report to the Deputy Commissioner. Simultaneously the Education Department also directed to hold an enquiry into the matter and deputed Mr. Muhammad Naseer Khan, Assistant Education Officer, Sahiwal. He probed the matter and reported that the appellant was guilty of wilful absence vide his report dated 23rd August, 1980. The District Education Officer served a show-cause notice upon the appellant calling upon him to show cause as to why he should not be removed from the service on account of his wilful absence from duty. Were. f. 19th June, 1979. This show-cause notice is purported to have been issued under rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules. The Appellant replied to show-cause notice. He was also heard in person and was removed from service vide order dated 14th January, 1981. Hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned District Attorney on behalf of the respondent. It has been argued on behalf of the appellant that the charge of his wilful absence from 19th June, 1979 is not proved because the appellant was never absent wilfully. He has submitted that the appellant had been regularly sub--mitting the medical certificates issued by the Medical Officer regarding his sickness, thus his absence from the School was never wilful. He has also submitted that the respondent has failed to take the medical certi--ficates attached with the appeal as Annexures H, I, K, L, N and O into consideration. Thus the impugned order is illegal. He has also submitted that the appellant has been removed from service due to the malice on behalf of the respondent. He has elaborated by submitting that the appellant had filed a suit against the respondent in the Court of Civil Judge, Sahiwal which was decreed in his favour, as such the respondent was annoyed with him.
4. On the other hand the learned District Attorney has submitted that the present appeal is not competent because according to him the appellant has filed the appeal before this Tribunal without availing the Departmental remedies available to him. He has also submitted that the appeal is not competent in view of the law laid down by their Lordships of the Supreme Court of Pakistan reported as Haji Qadir Bakhsh v. Government of Sind (1982SCMR582.) and 1980 SC M R 260.
On facts the learned District Attorney has submitted that the respondent had appointed an Enquiry Officer to verify the complaints received against the appellant. The said Enquiry Officer conducted an enquiry in which the appellant was fully associated and copy of the enquiry report was supplied to the appellant. The appellant was examined in the enquiry who gave a detailed statement consisting of 43 pages. Regarding Medical Certificates so relied upon by the appellant, the learned District Attorney has sub--mitted that according to these certificates the appellant was alleged to have been suffering from Jaundice while according to the only one medical certificate received by the respondent, the appellant was suffering from schetica and the Medical Officer had advised him rest for seven days. The learned District Attorney has submitted that these certificates appended with the appeal were not available with the respondent and these did not seem to have been received in his office. Thus he has concluded that the appellant is a malingerer and has maneuvered to take certificates, which were not even sent to the respondent.
5. We have given our anxious thoughts to the arguments addressed on behalf of the parties and have also perused the record very carefully. The record shows that the appellant had fled the present appeal on 25th February, 1981, and had challenged the order of the district Education Officer issued on 14th January, 1981. The contents of the appeal shows that the appellant did not file any appeal to the Director of Education as required under rule 115 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which was a prerequisite for invoking the jurisdiction of the Tribunal. For this we can safely refer to proviso (a) A to section 4 (i) of Punjab Service Tribunal Act, 1974 which is reproduced hereunder for ready reference:---- "Provided that where an appeal, review or representation to departmental authority is provided under the Punjab Civil Servants Act 1974 ; or any rules against any such order; no appeal shall lie to the Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such a departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was so preferred."
6. This proposition of law has been fully expounded by the Lord--ships of the Supreme Court of Pakistan in the Judgment reported as 1982 SCMR 582. The perusal of the record shows that after instituting the present appeal before this Tribunal, the appellant filed an appeal against the impugned order to the Director Education, Multan Region, Multan on 2nd May, 1981 which is an exercise in futility. The said appeal is stated to be still pending. In view of the law referred to above, we hold that the present appeal is not competent and is liable to be dismissed on this score alone.
7. Although we have held that the appeal is not competent but in the interest of justice we have proposed to dispose of the appeal on merits as well. So far as the plea of mala fide is concerned the appellant has placed on record the copy of judgment and decree dated 22nd March, 1982 passed by Syed Bahadur Shah, Civil Judge, Sahiwal. According to these documents, that suit for declaration of the appellant regarding the stoppage of his salary from October, 1979 to June, 1980, was decreed ex parte against the respondent. These documents did not indicate any malice against the District Education Officer who passed the impugned order. Thus, we overrule this plea of the appellant. So far as the Medical Certificates are concerned, there is no evidence on record that these were ever transmitted to the departmental authority alongwith any leave application for grant of leave. Even otherwise, a civil servant cannot presume the sanction of leave and proceed to enjoy the same without its prior sanction. These certificates are of stereotype nature which are issued by the Incharge of Civil Dispensary, haveli (native town of the appellant) which had been issued on a cyclostyle forms duly filled in by the said Medical Officer. The certificate exhibit `K' shows that the appellant was suffering from P. I. O. While according to the other certi--ficates, he was alleged to be suffering from infectious Reptic (Jaundice) while the certificates available on the file of the Department shows that the appellant was suffering from Schetica and advised rest for one week. In view of the circumstances stated above regarding the Medical Certi--ficates, we are not inclined to believe and place any reliance over them. It seems that the appellant was not willing to serve at his new place ofposting and wanted to stay at haveli which is his native town and for this purpose the appellant has managed these certificates from the Medical Officer of his town. We may also observe the medical certificates produced before us are just photostat copies which are neither attested nor proved on record by evidence. In view of the above no reliance can be placed over these documents. We thus, conclude that appellant has not been able to make out any case in his favour. Thus, we hold that the appellant has rightly been held guilty of wilful absence from duty and no exception to the impugned orders can be taken, which has been legally, competently and faithfully passed by the respondent.
8. In view of the above analysis we hold that there are no merits in this appeal which is dismissed as such. However, there will be no order as to costs.