' S. ABDUL JABBAR KHAN (CH AIRMAN). -Muhammad Aslam, formerly S.D.O., 4th Provincial Building Division has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Secretary to Government of the Punjab, Communication and Works Department, Lahore, as respondent.
2. By virtue of this appeal he has prayed that the impugned order, dated 13th April, 1983, may be set aside and the appellant be re-instated in service w,e,f, 5th February, 1983 and 13th April, 1983, with full back benefits of pay and allowances.
3. Brief facts of the case are that the appellant has been dismissed from "service .Vide notification, dated 13th April, 1983, by the Secretary, Communication and Works Department, when it was found that he was undergoing rigorious imprisonment in Jail in exercise of the powers conferred upon him by sub-rule (2) of rule 9 of the Punjab Civil Servants (E & D) Rules, 1975. This dismissal came in the wake of criminal proceedings on the charge of fraudulently and dishonestly misappropriating the sum of Rs, 6,700 by allowing unauthorised use of Government Road Roller No, 1185/DRR to Messrs Zaman and Brothers and receiving unauthorised duty charges and bribe from the contractor. Hence this appeal.
4. 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 impugned order very carefully with their assistance.
5. Learned counsel for the appellant has tried to take us into the merits of the vis-a-vis the charges for which he was ultimately so convicted and has addressed us with lengthy arguments in this behalf. It would be hardly proper to assess the merits of the case as pleaded by the learned counsel for the appellant, when we find that the impugned order is liable to be set aside being in contravention of the mandatory provision of rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 975. In the amended rule 9, it has been laid down that if the authority finds that a civil servant working under him, has been convicted for an offence involving moral turpitude, he may dispense with the procedure laid down in rules 5, 6, 7 and 8 of the Efficiency and Discipline Rules and dismiss him from service after giving him a show-cause notice. However, it has also been stated in clause (2) of the said Rule, where the authority was satisfied that it was not reasonable to give an accused civil servant an opportunity of show cause, he may record the same in writing and impose any of the penalty, without following the procedure laid down in rules 5, 6, 7 and 8 of the E & D Rules. In the present case no show-cause notice has been given to the appellant and the only reason for dispensation of the said notice have been given in the impugned order that the appellant was in Jail, therefore, it was not practicable to issue him such notice.
6. We are afraid that such like reason is hardly justified as a civil servant who is confined in Jail premises, is always available to avail of this opportunity of showing cause, as the same can be made available to him through the Superintendent jail, when he was so confined in the Jail. Rule 9 (2) would come into display, when it is found that the civil servant was untraceable and all efforts to trace him out, proved abortive. The philosophy of the logic of this provision is obvious, as it is based on the fundamental principle of natural justice that nobody should be condemned unheard which is enshrined in the Holy Qur'an which enjoins upon the authority to give chance to his subordinate, as to show cause and to lead defence which ultimately might be convincing and result into a judicious decision.
7. We have already held in our earlier judgment in case of Malik Muhammad Aslam v. Government of the Punjab through Secretary Forestry and Wildlife Department, etc. That it was practicable for the authority to serve a show-cause notice either through registered post or through Superintendent Jail concerned or at least issue a show-cause notice to the appellant at his given address and the relative could serve the same to the appellant.
In view of the above analysis of rule 9 (1) and (2), we proceed to set aside the impugned order and remand the case to the authority to proceed afresh, strictly in accordance with the rules as mentioned above. It would " be incumbent upon the authority to re-instate the appellant in service so as to bestow upon him the status of a civil servant for undertaking any proceedings, if so desired. The fate of the period for which the appellant remained out of service will also be decided by the authority, when a decision is taken by him under the law. However, there will be no order as to costs.