1. S. ABDUL JABBAR KHAN (CHAIRMAN). -Syed Muhammad Rafiq Shah former Assistant (V. R.
2. K.)Deputy Commissioner---s office Faisalabad has filed an appeal under Section 4 of the Punjab Service Tribunal Act, 1974 in which he has impleaded Deputy Commissioner, Faisalabad State through Collector, Faisalabad and Commissioner, Sargodha Division, Sargodha as Respondents. By virtue of this appeal he has prayed that the order dated 7th May, 1979 of Deputy Commissioner, Faisalabad and that of Commissioner, Sargodha Division dated 9th December, 1979 be set aside as illegal and without any justification. It has been further prayed that he may be re-instated in service with all the back benefits.
2. Brief facts of the case are as under: Syed Muhammad Rafiq Shah was employed as Senior Clerk in the office of D.C., Faisalabad in the year 1974. While an inspection was being conducted in the office of A.C., Jaranwala, it was found that some embezzlement of certain funds had occurred. An en--quiry was initiated against certain persons but it was considered necessary at the same time that the appellant be removed from the scene as it was apprehended that his presence might hamper the said enquiry. Secretary (Colonies) Board of Revenue issued a directive vide his D.O. Letter No. 218/ASC dated 18th December, 1973, asking the Commissioner, Sargodha Division to transfer the appellant to Mianwali District. The appellant was so transferred and he left his charge at Jaranwala but did not proceed to Mianwali to join his new assignment. When it was noticed by the D.C., Mianwali that the appellant had not joined his new post, he issued him a notice to comply with the order of his transfer but to no avail. It may be useful to mention here that the appellant left the charge at Faisalabad on 7th March, 1974 but did not join at Mianwali, even on pain of disciplinary action. The D.C., Mianwali, charge-sheeted the appellant and a regular enquiry was conducted by Malik Mumtaz Ahmed E.A.C. Mianwali. After the transfer of Malik Mumtaz Ahmed this enquiry was entrusted to Mr. Muhammad Javed Gill E.A.C., Mianwali. The appellant failed to join the en--quiry proceedings although he had full knowledge of the fact that enquiry was being conducted against him. The nature of the charge in nutshell was that he was guilty of wilful absence and defiance of the order of transfer despite a number of telegrams and letters, which were issued to him to make himself available. It was also alleged that he was helping one Mr. Abdul Haq, Cashier, who was involved in an embezzlement, both in legal proceedings as well as otherwise. The result of the enquiry went against the appellant--llant and the D.C., Mianwali ultimately dismissed him from service. He filed an appeal before the Commissioner, Sargodha Division which did not bear any fruit and the dismissal order passed by the D.C., Mianwali, was sustained. Aggrieved against his dismissal the filed Appeal No. 138/798 of 1976 before this Tribunal and was successful in getting the impugned orders set aside vide this Tribu--nal's Judgment dated 6th June, 1977 on the grounds that although D.C., Mianwali, was competent to initiate the proceedings against the appellant yet the same had to be finalised by the D.C., Faisala--bad which was the competent authority in his case. In consequence of Punjab Service Tribunal judgment the appellant was re-instated in service. He was paid all the arrears of his pay and later on promoted. It Was in the year 1977 that the Board of Revenue vide their endorsement No. 1105-79/905 E(M)-III dated 9th April, 1977 conveyed the advice of the S.G.A. & I Department to the D.C., Faisalabad wherein it was stated that the D.C. Faisalabad, being the competent authority to impose penalty upon the appellant on receiving the proceedings of enquiry from the D.C., Mianwali should pick up the link and bring the enquiry to its logical conclu- -sion. According to this letter, the judgment of the Service Tribu--nal was considered no bar to this proposed action. D.C., Faisalabad issued a show-cause notice on 17th April, 1979 after receipt of above directive of the B.O.R. And the advice of the Law Department. In this show-cause notice the appellant was asked to explain why the penalty of dismissal may not be imposed upon him for his wilful absence from duty. The appellant resisted the said show-- cause notice by filing number of applications and assailed the same as without any legal affect. He also pleaded the principle of res-judicata on the ground that the decision of the Punjab Service Tribunal acted as a bar to take any disciplinary action against him on the same charges. The D.C., Faisalabad asked the appellant to appear before him so that he should be heard in person as required under the rules. To this reply was simple: I have a sound mind to be heard in person, but as I feel, I shall not be able to exhaust the personal convictions of my boss. The cure is for the wrongs and not for the convictions based on personal grudge. I, therefore, reserve this right of mine to be exer--cised at some appropriate moment."
3. Ultimately the D.C., Faisalabad proceeded ex parte against him rely--ing on his written reply and evidence based on the enquiry report and passed the impugned order of dismissal from service.
4. Aggrieved against this dismissal order the appellant filed an appeal before the Com--missioner, Sargodha Division but unfortunately did not participate in the proceedings when called upon to do so. Oil the contrary he expressed his no-confidence in the said appellate authority and requested that his case may be transferred to some other Divisional Commissioner or some Member, Board of Revenue. The learned Commissioner, faced with this situation, referred this matter to the Board of Revenue but it was decided by the Board that the Commissioner should hear this case as there was no reasonable cause to accede to the request of the appellant. The learned Commissioner after taking into consideration all the pros and cons of this case, while affording full opportunity to the appel!Ant who pleaded his own case ultimately upheld the decision of the learned Deputy Commissioner and dismissed his appeal. Hence this appeal before us.
3. We have heard the learned counsel for the appellant at length as well as the District Attorney assisted by the representative of the Depart--ment and have perused the parawise comments and record of this case carefully with their assistance. It has been urged on behalf of the appellant that the present D.C., Faisalabad, was not competent to re-open the case and re-start the departmental proceedings after the Punjab Service Tri--bunal judgment dated 6th June, 1977, in view of the provisions of sections 5 and 8 of the Punjab Service Tribunal Act, 1974, the Deputy Com- -missioner was not justified to place reliance on the Board of Revenue end--orsement dated 9th April, 1979 as there was no necessity to do so under the provisions of E & D. Rules and the judgment of Punjab Service Tribunal. According to the learned counsel the advice given by the Board of Re-- venue was on account of lack of complete data before the Government and the Law Department. It was vehemently argued that the D.C., Faisalabad, was not authorised to start departmental proceedings from the stage of error or lapse because the proceedings taken by the D.C., Mianwali were held to be illegal by the Punjab Service Tribunal and thus the same could not be revived after it had died its natural death. His re-instatement and re-imbursement of arrears of his pay and his promo--tion in service was considered to be the strong factor against any fresh proceedings being initiated against him, as a number of D. Cs. Did not take up this matter and allowed the appellant to remain in service. According to the learned counsel this was a transaction past and closed and the D.C., Faisalabad, was debarred from taking proceedings against the appellant on the same facts which resulted in his earlier dismissal either suo moto or at the instance of the Board of Revenue. Reliance was placed in this regard on PLD 169 SC 407 wherein their Lordships have held that an order cannot be withdrawn or rescinded once it had taken its legal effect and certain rights have accrued in favoir of an in--dividual. A grievance was made that the appellant was given no oppor--tunity either by the D.C. Or by the Commissioner of being heard and the impugned orders were the result of a confirmed bias against the appellant fully borne out by the severe criticism of the appellant's conduct during the course of these two decisions.
4. On the other hand, the learned District Attorney by taking us through the judgment of the Service Tribunal submitted that the Tribunal set aside the earlier orders of D. C.; Mianwali and the Commissioner, Sargodha only on one ground, i.e., although the D. C., Mianwali could initiate proceedings against two appellant yet he was not empowered to record his dismissal, as this was within the jurisdiction of the D.C., Faisalabad who was the competent authority in this case. It was further contended that the mere fact that the appellant was re-instated in service and was paid the back benefits would not in any manner precluded the competent authority to bring to the logical end the first enquiry conducted against him in District Mianwali. This according to the learned counsel was a ratio decidendi of the judgment of the Punjab service Tribunal and the D.C., Faisalabad was fully competent to take action against the appellant for his past misconduct. It was further made out that there was no order on the record of the D.C. Who re-instated the appellant that he had dropped the proceedings against him. According to the learned D.A. The appellant was re-instated in routine and was paid arrears of his pay against the standing instructions of para. 7.3 C.S.R. Volume 1, Part I. Even the present D.C. Who took up the past link did not take notice of this lapse on his own account but proceeded against the appellant when the B.O.R. Conveyed to him the advice of the Law De--partment and the views of the S & GAD, on receipt of the judgment of the Punjab Service Tribunal. As regards the bias of the competent authority as well as the Appellate Authority it was submitted that the appellant had cast wild baseless and irresponsible aspersions on the in--tegrity of his superiors who according to the record of this case made all possible efforts to persuade him to join the proceedings and convince them of his point of view. In the end it was submitted that both the judgments of the learned D.C., Faisalabad, as well as the Commissioner, Sargodha Division, are lucid and elaborate and that there is hardly any justification for this Tribunal to interfere with the same. In both these judgments all the points raised by the appellant have been squarely met and repelled with full justification.
5. We have given our anxious thought to all the contentions raised by the parties and find that the main ground urged by the learned counsel for the appellant in this case is that the D.C., Faisalabad, was not com--petent to restart the departmental proceedings from the stage of error or lapse because the proceedings taken by the D.C., Mianwali, were held to be illegal by the Punjab Service Tribunal. His case is mostly based on the legal plane, hardly adverting to the merits of the case. The only explanation for the wilful absence of the appellant has been that there was a danger to his life at Mianwali, therefore, he chose to remain absent from duty. In order to assess the strength of the main objection, we would look into the judgment of the Punjab Service Tribunal dated 6th June, 1977 to find whether the Tribunal directly or impliedly preclud--ed the authority of D.C., Faisalabad, to continue the departmental pro--ceedings from the stage of error or lapse of the proceedings taken by the D.C., Mianwali. We will reproduce the operative portion of the Tribu--nal's Judgment as under :- "After hearing both the parties we have no doubt in our mind that the D.C., Mianwali, was not competent to take action in this case. No doubt the appellant was liable to transfer as argued by the Government Pleader but after the transfer the status of the appel--lant was governed by the instructions issued on 17th November, 1969 which specifically related to the situation in hand.
5. Accord--ing to the instructions aforesaid the appellant had to be treated on deputation. He being a permanent hand his lien continued to be retained in District Lyallpur and, therefore, Deputy Commissioner, Lyallpur was the competent authority to impose the major penalty against the appellant. In our view the letter dated 17th November, 1969 governed the case of the appellant. The letter dated 15th August, 1972 as relied upon by the Government Pleader was in--applicable in this case. The aforesaid letter related to the situation where the Civil Servant was transferred from the jurisdiction of one competent authority to the jurisdiction of another competent authority during the subsistence of the Departmental proceedings against him. The aforesaid letter proceeds upon the assumption that both the authorities equally had the jurisdiction and the only question was as to whether the proceedings already instituted should be continued by the same authority or should be transferred to the other authority. Presumably there was no dispute as to their powers to take disciplinary action against the civil servant concerned. There could be many illustrations that where an in--cumbent was holding a post in the Divisional cadre but under the Delegations of Power Rules, the District Head was the authority empowered to take action against him and during the pendency of the proceedings if he were to be transferred from the district to another, in that situation the letter in question provides guidance namely, that the authority which initiated the disciplinary proceed--ings, can, rather should, carry them to the finalisation and impose the punishment even if during the course of disciplinary proceed--ings the accused has been transferred to the jurisdiction of another authority of the same rank and status. However, the situation may be different in case of a person promoted to a higher rank in which it was directed that the new authority must initiate the disciplinary proceedings afresh. The case in hand is different inasmuch as the appellant was holding permanently a District Cadre post and in his case even after his transfer ex-district the Deputy Commissioner, Lyallpur, alone continued to be the com--petent authority."
6. The careful reading of this operative portion of the judgment leaves no room for doubt that there is no direction given by the Tribunal that the D.C., Faisalabad, in any way was forbidden to complete the enquiry conducted by D.C., Mianwali into the affairs of the appellant. The situ--ation was further thrashed out in Memo No. SORT (S&GAD) 1-85/78, dated 28th March, 1979, addressed by S. O. (Reg.)
7. Government of the Punjab, S&GA D to the Deputy Secretary (Revenue Estt.) Board of Revenue Punjab, Lahore. By this letter the D.C. Faisalabad was in--formed that the order of the D.C., Mianwali was quashed by the Punjab Service Tribunal for lack of jurisdiction on .The part of D.C. In matters of punishing the appellant. It was further observed that the error or lapse which the impugned orders suffered from could be rectified from that stage and the record of the proceedings was to be transferred to D.C., Faisalabad, who would be the competent authority to pass the final orders. This advice was given to the D.C., Faisalabad, through this letter after consulting the Law Department.
8. With regard to the second legal objection that the D. C., Faisalabad was not competent to review the orders of his predecessor Mr. Javed Bokhari under whose orders the appellant was re-instated and at one stage was promoted, it would be sufficient to say that the order of his re-instatement was not a conscious order by the said D. C. Or that of his predecessor but was a routine order passed by the said Officer in compliance to the judgment of the Punjab Service Tribunal. Similarly the payment of arrears of pay also made without looking into rule 7 (3) of C. S. R. Vol. I, Part 1 (which only permits such payments when the person accused is acquitted honourably) and was against abovementioned rule.
9. We have looked into the rules ourselves and are in agreement with this legal proposition, as the order of dismissal against the appellant was set aside on legal grounds only, without adverting to the merits of the case. The Government would be justified to say that the appellant was re-instated on technical grounds only. The show-causes notice issued by the learned D. C., Faisalabad was not issued sou motu and was issued only when the judgment of this Tribunal came into the notice of the B. O. R. Who after consulting the Law Department forwarded the advice to the said officer. This will further strengthen the arguments of the learned D.A. That the case of the appellant remained unnoticed for some period and there was hardly any malice with Mr. Abdul "Waheed D. C., Faisalabad, who just acted on the advice of the Board of Revenue. Otherwise, if there was some bias with him against the appellant he would not have waited for a period of one year to perform his dusty. We have no hesitation to repel the said argument of the learned counsel for the appellant that the D. C., Faisalabad was not competent to review the order of his predecessor M.
10. Javed lqbal Bokhari.
11. We now deal with the final and forceful argument of the learned counsel for the appellant that the case of the appellant would be hit by the golden principle of audi alteram partem. After going' through the entire chequered history of this case we are convinced that it was the appellant who decided, to remain absent and disassociated himself with the enquiry both at Mianwali as well as at Faisalabad and even from the proceedings of his appeal before the Commissioner. The record is replete with number of uncalled for protestations in the form of applications from time to time wherein the appellant has shown an adamant attitude to keep away, casting aspersions on the integrity of all those who dealt with his case at the stage of enquiry, show-cause notice and appeal. The learned Commissioner, at one stage washed his hands of the appellant's case and forwarded the same to the Board of Revenue for nominating some other Commissioner or authority to dispose of the same. It was only when he got the directive from the Board of Revenue that he was under legal obligation to hear this as that he proceeded to decide the same. We would only reproduce, out of many, two tirades by the appellant to show his attitude. One addressed to D.
12. C. Faisalabad and the other to Commissioner, Sargodha Division. To D. C., Faisalabad he said :- "I have a sound n1ind to be heard in person, but as I feel, I shall not be able to exhaust the personal convictions of my boss. The cure is for the wrongs and not for the conviction based on personal grudge. I, therefore, reserve this right of mine to be exercised at some appro--priate moment."
13. To Commissioner, Sargodha Division he said ; "(i) I did never decline to receive any of such notices ever issued by your honour's office, and each of them was acknowledged in letter and spirit, despite the fact that there were chances to avoid service. I, however, beg to point out that the language of a few of the last notices, forwarded to the Tehsildar for service on me, indicates the venom of your honour's anger, which reflects that all is not well. My humble submission in this respect is that as I have already shown my inability, vide application dated 8th September, 1979, to represent my case orally, I may not be summoned time and again and the decision on my appeal be kindly taken keeping in view my "Written Arguments".
14. " (ii) As I have already met a torturing attitude by your honour's condemning remarks in your Court on 18th July, 1979, I fear that the circumstances may not drag me to suffer irreparable loss, for crossing the lines of maintaining the difference between the Desk and the Chair, by refuting such comments. This very thinking, in the first instance, necessitated the submission of written Arguments" to facilitate the early decision of my appeal either way-transfer of case to some other Commissioner or Boar of Revenue, or decision thereof as desired."
15. It shows the attitude of the appellant towards his superiors who were called upon to do their duty, and asked him to co-operate in the said matter concerning him before them. The principle of audi alteram partem would hardly be applicable in a case of this nature where a person himself does not consider it safe to be present either before the D. C. Of before the commissioner, in his defence.
16. We will not burden the file with many other attitudes which took place during these long years between him a d his superiors as the same have been fully re-counted in the elaborate an comprehensive judgment of the learned Commissioner.
17. With regard of the merits of the case, the appellant did make a pro--test in the beginning while being proceeded against Mianwali, that his life was an danger but failed to produce any cogent evidence or submit any justified reasons that this apprehension was real and not imaginary.
18. Therefore, we a safe in rejecting this plea as fanciful and flimsy, a plea to avoid the end of justice or lame excuse not to join at Mianwali. The incidence of transfer is an integral part of the terms and conditions of service of a Government servant and to defy the same is a very serious offence.
19. Heavens shall not have fallen if the appellant had reported himself for duty a Mianwali and then seeking audience of his superiors explained the circumstances orally or in writing to justify danger to his life. The attitude and pleadings of the appellant coupled with his adament attitude trot to report at Mianwali fully justify, the competent authority to award a major punishment of dismissal against him. We have laboured and took pains to go through the judgment of the learned D. Cs.
20. And. Commissioner, Sargodha in order to find whether these suffered from any legal flaw or in any manner failed to deal with the point raised by die: appellant's counsel and have no hesitation to hold that both the judgments are unexceptionable and the learned counsel for the appellant has miserably failed to assail these either on legal or factual plane.