' ABDUL HAMID CHAUDHARY (MEMBER).-Muhammad Iqbal Shah ex-Nail) Tehsildar has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Member (Revenue), Board of Revenue, Punjab, Lahore and the Commissioner, Sargodha Division, Sargodha as respondents.
2. By virtue of this appeal, he has prayed that the order dated 26th April, 1981 of the learned Commissioner, Sargodha Division and the order dated 30th May, 1982 of the learned. Member (Revenue), Board of Revenue Punjab, Lahore be set aside and the appellant be reinstated in service with all back benefits.
3. Brief facts of the case are that the appellant, Muhammad Iqbal Shah was working as Naib-Tehsildar (Recovery), Faisalabad. On 27th December, 1980 he was transferred as Naib Tehsildar (Recovery), Mianwali under the order of the respondent No,
2. This order directed the appellant to reliuguish the charge by 31st December, 1980. Accordingly the appellant relinquished the charge on 31st December, 1980. As he was not keeping good health. After relinquishing the charge. On 31st December, 1980 he got himself examined by a Medical Officer of the District Headquarter Hospital, Faisalabad, who advised the appellant complete rest w,e,f, 1st January, 1981 for one month (medical certificate at annexure `A'). The appellant further fell seriously ill and was removed to Mayo Hospital, Lahore and remained under treatment at Lahore upto 14th February, 1982 as per certificate from the Registrar, Mayo Hospital, Lahore (Annexure`B'). The appellant asked for leave due to medical reasons from 1st January, 1981 to 31st January, 1981 and then from 1st February, 1981 to 14th February, 1981. In the meanwhile the wife of the appellant fell seriously ill and as no one was to look after her as well as the minor children of the appellant, in the circumstances he was again constrained to move an application on 13th February, 1981 for the grant of extension for three months leave from 15th February, 1981 to 15th May, 1981. The appellant was served with a show-cause notice by the Commissioner, Sargodha Division, Sargodha dated 21st February, 1981. A reply was given by the appellant to the show-cause notice explaining his position and requesting for extending the date of his personal hearing. The appellant did not appear on 28th March, 1981 on the extended date for personal hearing before the respondent No,
2. The appellant was also advised through the "Press" to submit his defence within 15 days of the publication of the notice in the newspaper dated 7th April, 1981. As the appellant could not get these communications, hence, he did not appear for personal hearing. The appellant was dismissed from service vide Commissioner's, Sargodha, order dated 26th April, 1981. The appellant made an appeal to Mr. S.M. Naseem, Member (Revenue), Board of Revenue, Punjab, Lahore which was dismissed vide order dated 30th May, 1982. Hence this appeal.
4. We have heard the parties. It has been argued by the learned counsel for the appellant that if the appeal of the appellant is read in coronology order, it is clear that the appellant had been punished for no fault of his. It is proved from the medical certificates of the Medical Officer, District Headquarters, Hospital, Faisalabad (Annexure 'A' that the appellant was ill and he was advised rest for one month by the said Medical Officer. As the health of the appellant further deteriorated, he was removed to Mayo Hospital, Lahore as is clear from the certificate from the Registrar, Mayo Hospital, Lahore (annexure `B'). These certificates prove beyond any doubt that the appellant was seriously ill and under the circumstances, he was not evading to join at Mianwali and he did not disobey the order of the Commissioner, Sargodha. It was pointed out by the learned counsel for the appellant, that the appellant was transferred and appointed in his home District i,e, Mianwali and he very much wanted to avail this opportunity of his posting in his home District although it could not be done so under the Rules. As a bad luck would have been, his wife also fell seriously ill, and as there was no one to look after her and the children except the appellant, so he was forced to apply for extension for three months leave due to these unavoidable circumstances which were beyond the control of the appellants It was also submitted by the learned counsel for the appellant, that the appellant has been prejudiced in the matter as he has not been provided opportunities to defend himself. An enquiry was not held to find out the facts of the case and the appellant has been condemned unheard. It is also interesting to note that the Commissioner has himself acted as a Judge in his own case. As he had issued a show-cause notice to the appellant, it was necessary for the Commissioner that he should have got enquiry conducted through an independent Enquiry Officer to find out the truth in the matter and should not have acted in haste to punish the appellant without he airing him or finding out the truth in the matter. It was also pointed out by the learned counsel for the appellant that it appears that the Commissioner, Sargodha got annoyed due to the reasons that the appellant did not appear before him and the Commissioner got the impression that the appellant was knowingly not appearing before him and was also not complying with the transfer orders. The fact of the case is that no communications were received by the appellant under his disturbed conditions and thus he could not avail the opportunity of personal hearing before the Commissioner. Elaborating this, he submitted that the first communication was received by his brother who did not inform the appellant and the newspapers also did not come to his notice. Similar was the position for not appearing before the Medical Board, the direction for appearing before the Medical Board at Faisalabad was not received by the appellant otherwise the appellant would have complied with accordingly. It has also been submitted by the learned counsel for the appellant that the appellant has more than 20 years service at his credit. Out of which the appellant had 11 years of service as Naib Tehsildar. The appellant was transferred from different places during his tenure of his service but he never resented or resisted the any transfer or posting.
There is not a single representation from the appellant on record against any of the orders regarding transfer and posting of the appellant. The appellant has 20 years of unblemished service record, is a willing worker and has always tried to obey the orders of his superiors.
5. It was further submitted by the learned counsel for the appellant that medical leave to the appellant was duly recommended by the two Medical Officers i,e, the Medical Officer, Government Hospital, Faisalabad and the Registrar, Mayo Hospital, Lahore and it could not be refused under the leave Rules. He further submitted that if the learned Commissioner, Sargodha, would have enquired into the matter, applied his mind judiciously after finding the actual facts of the case, he was sure that the Commissioner would have taken quite a different decision. Concluding his arguments, the learned counsel for the appellant prayed that keeping in view the above submissions, it is proved that the appellant has been punished without his guilt and the impugned orders be quashed, being unjustified and unlawful.
6. Controverting the above arguments, the learned District Attorney has relied on the parawise comments submitted by the Commissioner, Sargodha Division, Sargodha. It has been submitted by the learned District Attorney that the appellant failed to appear before the Medical Board as he was directed to do so. He was actually not sick and was putting lame excuses as not to comply with his transfer orders. The misconduct of wilful absence from duty stood proved against the appellant, hence he has been punished correctly and lawfully.
As far as the objection of the learned counsel for the appellant that no regular enquiry was held and the appellant should have not been proceeded under rule 6(3) of the Efficiency and Discipline, Rules ; it was submitted by the learned District Attorney that prima facie the charges were established from the record and sufficient proof was available for his wilful absence/disobedience of orders, hence adopting the procedures of show-cause notice under rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 is perfectly in order and no exception can be taken to the same. It was also pointed out by the learned District Attorney that the appellant was given opportunities for personal hearing but he did not avail the same wilfully.
Hence he has not been prejudiced in the matter.
7. We have given our anxious thoughts to the arguments of the parties and have consulted the record very carefully. Perusal of the record supplied by the Office of the Commissioner, Sargodha, certify the following facts
(i) Two medical certificates in original, one given by the Medical Officer, District Headquarters Hospital, Faisalabad, recommending the appellant's rest for one month w,e,f, 1st January, 1981 and 2nd by the Registrar, Mayo Hospital, Lahore recommending him rest for two weeks from 1st February, 1981 to 14th February, 1981 are available on record.
(ii) The leave applications are available on record for the above period wherein requests were made by the appellant to sanction the leave on medical grounds from 1st January, 1981 to 14th February, 1981.
(iii) Further application for extension of leave from 15th February, 1981 to 15th May, 1981 due to the precarious condition of his wife, was received well in time by the respondent No, 2, through Deputy Commissioner Mianwali.
(iv) The above documents prove, that the appellant was genuinely sick and further extension sought by him for leave upto 15th May, 1981 was on solid and valid grounds.
(v) Scrutiny of record further shows that communications addressed to the appellant for appearing before the Medical Board and for personal hearing before the respondent No, 2, were not received by the appellant and he was innocent in the matter.
8. Keeping the above facts in view, along with the charges levelled in the show cause notice, there is weight in the arguments of the learned counsel for the appellant that this case needed a detailed enquiry and true facts were not before the respondent No, 2, when he took a decision in his case. We, also feel that somehow or other, the Commissioner, Sargodha Division, respondent No, 2, got a wrong impression that the appellant was evading to join wilfully at his new place of posting and was disobeying his orders. Thus we consider that the action against the appellant is not in accordance with the facts as well is harsh and unjustified.
9, We have also seen the previous service record of the appellant. There are few adverse entries against the appellant. It appears that the Commissioner, Sargodha, Division, Sargodha (Respondent No, 2) and Member, Board of Revenue, Punjab, Lahore (Respondent No, 1) have been carried away by his previous service record in deciding his case by taking the appellant as malingerer.
10. The upshot of the above discussion is that we find that the appellant is not guilty in the present case.
However, he cannot be absolved of the fault that he did not keep informed properly to the Deputy Commissioner, Mianwali/Commissioner, Sargodha of his movements first to Lahore and then to Quetta which created all confusions in his case.
11. Keeping the above detailed analysis in view, we hold that the punishment awarded to the appellant is not in consonance with his guilt. The impugned orders are set aside and the appellant is directed to be reinstated in service. The punishment so awarded is moditied/varied as follows :
(i) Censure.
(ii) Stoppage of annual increments for two years without future effect, ' The period for which the appellant remained out of duty/service that is from 1st January, 1981 to the date of his re-joining the duty shall be treated as a leave of kind due.
' There will be no order as to costs.