' MUHAMMAD IRSHAD KHAN (MEMBER).-it is the case of the appellant that he obtained leave for fifteen days with effect from the 8th of March, 1980 while he was posted as Telephone Operator under respondent No, 4, the Divisional Engineer Telegraphs, Mardan. He subsequently applied for extension of leave for another fifteen days on medical ground. However, the appellant's condition turned more serious thereafter and he requested for extension of leave for a further period of three months and then again for extension for a period of three months supported by medical certificates of the private practitioners dated 7th April, 1980 and 6th July, 1980 respectively. He heard nothing in response to these requests for extension, rather, he had received on 5th September, 1980 the impugned order dated 28th July, 1980 whereby he was dismissed from Government service with effect from 24th March, 1980. Aggrieved thereby he filed a departmental appeal which was rejected as time-barred. He then filed an appeal in this Tribunal being Appeal No, 178(P) of 1981 which was accepted vide its order dated 22nd December, 1982 to the extent that the departmental appellate authority was directed to reconsider the depart-Mental appeal of the appellant on merits. In pursuance thereof the appellate authority passed an order dated the 3rd of April, 1983, rejecting the appeal on merits. The appellant then filed the present appeal.
2. On the other hand, it was asserted on behalf of the respondents that the appellant was granted fifteen days leave on the ground of his son's marriage. He was due to report for duty on 24th March, 1980 but he failed to do so. He was, therefore, telegraphically directed at his home address vide express telegram dated 30th March, 1980 either to report for duty at once or produce medical certificate from the Medical Superintendent, D. H. Q. Hospital, D. I. Khan. He was clearly warned that medical certificate of a private medical practitioner would not be admitted. In spite of this he sent a medical certificate from a private medical practitioner. He was, therefore, directed vide express telegram dated 8th April, 1980 to appear before the Medical Superintendent, D. H. Q. Hospital, D. I.
Khan for second medical opinion but he failed to do so despite repeated telegraphic directives.
Ultimately a notice was published in a daily newspaper of Peshawar requiring the appellant to resume duty within a week of publication of the said notice, otherwise action would be taken against him under the Government Servants (Efficiency and Discipline) Rules, 1973. When even thereafter the appellant remained absent and failed to resume duty an order dated 28th July, 1980 was passed whereby he was dismissed from Government service with effect from 24th March, 1980.
3. It was contended by the appellant that he did not receive any of the telegrams, mentioned above, nor the notice published in the newspaper came to his notice as he was living at that time, in a small village where the newspaper does not reach. Be that as it may, it is manifestly evident that the impugned order was passed without having a recourse to proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973, although in the notice published in the newspaper intention to proceed against the appellant under the said Rules in case of his failure to resume duty, was specifically declared. Undeniably, punishment of dismissal from service can be awarded to a civil servant only after taking proceedings under the Government Servants (Efficiency and Discipline) Rules. If a thing is required to be done in a manner prescribed by a statute, it's doing otherwise is illegal. In the instant case, the impugned order was passed straightaway in an arbitrary manner without proceeding against the appellant in the manner prescribed by the Government Servants (Efficiency and Discipline) Rules. The position being so clear, we have no option but to hold that the impugned order was incompetent, arbitrary and illegal.
4. A perusal of the impugned order further reveals that it suffered from another fatal defect also in that the appellant was thereby dismissed from service with retrospective effect i,e, with effect from 24th March, 1980. We are of the considered view that the Authority who had passed the impugned order, was not competent to give it a retrospective effect. For, power to dismiss shall mean power to dismiss prospectively. Indeed, it is only the Legislature which can give retrospective effect to that it ordains. On this account to the impugned order is incompetent.
5. In view of the foregoing, the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re-instated into service with effect from the date of his dismissal with all consequential benefits.
6. No order as to costs.