SARFRAZ HASAN (MEMBER). --Dr.Saeed Ahmed Khan, 38, Sanda Road, 109 Johar Street, Islampura, Lahore has filed this appeal u/s 4 of the Punjab Service Tribunal Act 1974 in which he has impleaded Government of the Punjab through Secretary Health, Government of the Punjab and Director, Health Services, Punjab Government as respondent Nos.1, 2 and 3 respectively.
2. Through this appeal, the appellant has prayed that the following orders be set aside as of no legal consequence:
(i) Orders dated 8-1-1986 passed by respondent No.2 according to which his services as Medical Superintendent Govt. T.B. Hospital Sargodha where he was "provisionally posted" were "dispensed with, with immediate effect" and his period of service from 5-5-1984 to 8-1-1986 was "treated as ad hoc appointment.
(ii) Orders dated 20-2-1986 passed by respondent No.1 rejecting his Review Petition against order dated 8-1-1986 referred to above. and the appellant be reinstated in service with retrospective effect with all back benefits.
3. As stated in the appeal and parawise comments and other documents furnished by the respondents, the facts of the case are that in response to an advertisement in Pakistan Times issued dated 23-11-1970, the appellant sought permission to appear before Director General, Health Government of Libya for Specialists job. This permission was duly given and the Govt. Of Libya selected him for the job of a Chest Specialist. Accordingly, on his own request, the Punjab Government agreed to his deputation to Libya for a period of three years on terms and conditions specified in Govt. Of Punjab, Health Department No.S.O.(Admn.l) 5/2-70(VII) dated 30-12-1970.
The appellant's three years deputation period ended on 5-1-1974 but he did not report back for duty even after a lapse of 5 years. Accordingly vide its No.S.O.(Admn.l)20/8-70 dated 28-1-1976, Health Department of the Punjab Govt. Directed him to return to Pakistan immediately or submit his resignation from Government Service if he wanted to continue his service in Libya. However, no reply was received from him.
With the approval of the Punjab Governor, disciplinary action was initiated against him for misconduct under Punjab Civil Servants (Efficiency and Discipline) Rules 1975.
"Absence from duty amounts to misconduct under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for which a penalty mentioned in Rule 4(b) ibid can be imposed on them.
Now therefore, in view of their unauthorised absence from duty they are called upon through this notice to show-cause why they should not be dismissed from service. Their replies should reach the undersigned within 15 days of the publication of this notice and at the same time they should clearly state whether they want to be heard in person. If no reply is received within the prescribed time, it will be presumed that either they have no defence to offer or have wilfully declined to offer the same.
I.A. KHAWAJA BRIG, Secretary Health."
The appellant did not file any appeal against his removal from service. However, he reported back for duty to Health Secretary of the Punjab Government on 5-5-1984 after overstaying his deputation period unauthorizedly for nearly 10-- years.
After obtaining approval from the Chief Secretary/ Authority, the appellant was "provisionally posted" as Medical Superintendent Govt. T.B. Hospital Sargodha" without prejudice to the out-come of the disciplinary action to be initiated against him vide Health Department's order No.S.O.
(Admn.V) 20-8/70 dated 11-6-1984.
While issuing this order, the Health Department lost sight of the fact that the appellant had already been removed from service by the Department on 4-3-1981 for unauthorized absence from duty.
However, after the Director Health Services, Punjab (Authorized Officer) had already recommended to the Health Secretary Punjab on 28-10-1984 that the appellant may be exonerated of the charge and his entire period of absence be regularized as extraordinary leave without pay, the said Director, Health Services, Punjab (Authorized Officer) subsequently informed the Health Secretary vide his No.S.64/1827/E.I, dated 10-2-1985 that the appellant already stood removed from service for unauthorized stay abroad vide Punjab Government Notification No.S.O. (Admn.VII) 5-1/79 dated 4- 3-1981.
Accordingly, the matter was referred to the Regulation Wing of S & G A D who vide their U.O.No.SOR(S&GAD) 1-32/85 dated 19-11-1985 gave the following advice:- "Second appointment can only be considered as fresh appointment which has to be in accordance with the procedure prescribed for that orders of taking him back in service are not competent and regular. The period spent in service on the basis of aforesaid orders can at best be treated as adhoc."
As a result, vide impugned order dated 8-1-198ti issued by Health Secretary, Punjab, the appellant's services were dispensed with and the period of service rendered by the appellant from 5-5-1984 till 8-1-1986 was treated as adhoc appointment.
The appellant submitted a Review Petition to the Health Secretary, Punjab Government on 14-1-1986 against order dated 8-1-1986 issued by the Health Secretary. The Review Petition (Annexure 'G' of appeal) was turned down with the approval of the Chief Minister and the appellant was informed accordingly Vide (Health Department) No.S.O.(Admn.V) 20-8/78 dated 20-2-1986. Hence this appeal.
4. We have heard the learned counsel for the appellant and the learned District Attorney and have also perused the record carefully with their assistance.
5. The learned counsel for the appellant submitted the following main points:-
(i) The period of deputation was initially for a period of three years. However read with clause 8 of letter dated 30-12-1970 issued by respondent No.2 (annexure 'A' of appeal) the period of deputation was for an indefinite period of time with the option to call back the appellant after a period of 5 years, it so required.
(ii) According to clause I of letter dated 30-12-1970 (Annexure 'A'), the period of foreign service was to commence from the date of release from the department and terminate on the date of resumption of duty by him in the Health Department of the Punjab Government. Therefore, the appellant's deputation commenced on 5-1-1971 when he was released by the Department and came to an end on 5-5-1984 when he reported back for duty in the Punjab Health Department.
(i.e) The period of appellant's deputation was extended beyond 3 years by the Libyan Govt. And respondent No.1 did not exercise its option of recalling the appellant from abroad as indicated in clause 8 of letter dated 30-12-1970 (annexure 'A'). The appellant was therefore under a bonafide impression that the respondents had agreed to the, extension of deputation period by the Libyan Government.
(iv) The appellant had regularly contributed to his pension upto April 1985 (annexure 'B') of the appeal).
(v) The appellant had been discriminated against in that in the following cases, the respondents had regularized overstay of officers abroad: -
(a) Dr. Ijaz Sindher, Senior Registrar, Eye Department, Ganga Ram Hospital, LHR overstayed 7 years.
Regularized as leave without pay.
(b) Dr.Mahmud Ahmad, Asstt. Prof.Nishtar Hospital, Multan, overstayed from 2-9-1976 to 31-1-1982, regularized as leave without pay.
(c) Dr Rashida Begum. Overstayed from 30-12-1977 to 23-8-1980, Regularised as leave without pay.
(d) Dr.Sabih Ulla Khan. Overstayed from 1977 to 31-8-1984, regularised as leave without pay.
(e) Dr. Khurshid Shaf:overstayed more than 7 years, regularized as leave without pay.
(vi) On his return to the appellant was provisionally posted as Medical Superintendent Govt. T.B.
Hospital Sargodha.. By no stretch of imagination could this provisional posting be considered as ad hoc appointment and his services dispensed with.
(vii) The impugned order dated 8-1-1986 (annexure F of appeal) had been issued in consequence of show-cause notice issued to the appellant under the Punjab Civil Servants (E & D) Rules, 1975 (annexure D of appeal) and therefore the said impugned order would be regarded as tantamount to removal from service.
(viii) The entire proceedings against the impugned order were "coram-non-judice" and therefore of no legal consequence The Authority had not served on the appellant any show--cause notice containing the proposed penalty nor was he given an opportunity of being heard in person.
5. The learned District Attorney submitted that the appeal was without any merit and may be dismissed accordingly. In this connection he invited attention to the written objections filed by respondents and submitted the following main points:-
(i) In letter dated 30-12-19711 (annexure 'A' of appeal) the period of deputation had been specifically fixed as 3 years. It could not be extended except by the authority who had sanctioned it.
In this case the said authority was the Health Department in the Punjab Government.
(ii) Instead of extending his period of deputation, the Health Department vide its No.SO(Admn.l)20/8-70 dated 28-1-1976 directed him to return to the country immediately or submit his resignation from Govt. Service if he wanted to continue his service in Libya. However, the appellant did not comply with the order of the Punjab Government.
(i.e) Instead of complying with the orders of the Punjab Government directing him to return to the country immediately or resign from Government service, letter dated 18-10-1984 from Chief Accounts Officer, Ministry of Foreign Affairs, Islamabad to Accountant General Punjab (annexure B of the appeal) show that during his stay abroad, the appellant also served in Saudi Arabia without any authority or permission from the Punjab Government.
(iv) By no stretch of imagination can the terms and conditions of services contained in letter dated 30-12-1970 (annexure A of appeal) be interpreted as an indefinite period of deputation} abroad.
This is a perverse interpretation having no basis in same charge of unauthorized absence abroad vide Punjab Government Notification No.S.O.(Admn.VII) 5-1/79 dated 4-3-1981. The appellant has concealed this fact in his appeal.
(v) The appellant had already been removed from service on the same charge of unauthorised absence abroad vide Punjab Government Notification No.S.O.(Admn.VII) 5f-1/79 dated 4-3-1981.
The appellant has concealed this fact in his appeal.
(vi) Unless his order of removal from service was vacated by due process of law, the appellant could not be taken back in service on a regular basis. However, the appellant had not filed any appeal against his order of removal in 1981.
(vii) While issuing orders of his provisional posting on 11-6-1984 (annexure C of appeal) the fact of his earlier removal from service in 1981 was either lost sight of or concealed by the Officers concerned in the Health Department.
(viii)In view of the Punjab Government order dated 4-3-1981 removing him from service with effect from the date of his unauthorized absence, he could not be taken back in service again on a regular basis in June, 1984 and proceeded against under P.C.S.(E&D)Rules 1975 in the same charge of unauthorized stay abroad. That is why the departmental proceedings initiated against the appellant after he had reported to the Health Secretary on 5-5-1984 were filed and the appellant's services dispensed with on 8-1-1986 on the basis of advice given by the Regulation Wing of the Services, General Administration and Information Department.
6. After careful examination of the submissions made by both sides and the record produced before us, we have come to the conclusion that the appeal has no legal force. In this connection attention is invited to the following main points:-
(i) The period of appellant's deputation to Libya expired on 4-1-1974. However, he neither reported back for duty to the Health Department in time nor applied for extension of his deputation period to the Punjab Government. Accordingly vide Punjab Government (Health Department) Notification No.SO. (Admn.VII)5-1/79 dated 4-3-1981, he was removed from service with effect from the date of his unauthorized absence.
(ii) As the appellant failed to submit appeal against the above mentioned Notification dated 4-3- 1981, the order of his removal from service became final.
(i.e) In view of his removal from service in 1981 the appellant could not be legally taken back in service on a regular basis or proceeded against under P.C.S. (E & D) Rules, 1975 on the charge of unauthorized absence for which he had already been removed from service in 1981. Consequently, the departmental proceedings initiated against him in pursuance of order dated 11-6-1984 of Health Secretary (annexure 'C' of appeal) became void in law. Hence objections raised by the appellant regarding material irregularities in the conduct of these proceedings have also lost all legal significance.
(iv) As rightly pointed out by the Regulation Wing of SG&ID, the second appointment of the appellant after his removal from service in 1981 could only be considered as a fresh appointment and this fresh appointment could only be made in accordance with the prescribed procedure.
Approval of the Chief Secretary dated 5-6-1984 taking him back in service was therefore irregular.
(v) According to Punjab Health Department (General, Specialist and Miscellaneous Posts) Service Rules 1981, appointment to the post of Medical Superintendent T.B. Hospital is made as under:- By promotion on the basis of selection on merit from amongst Assistant Director, Health Services, District Health Officer, Medical Superintendent of Hospitals, Principals, paca-Medical School, Senior Medical Officers and Woman Medical Officers in BPS-18 possessing MD/FCPS in TB or TDD or DTCDC or MOPS in TB or equivalent qualifications having 12 years in Grade 17 and above in the Department."
(vi) It is clear from the above quoted rules that the appellant could not be appointed directly to the post of Medical Superintendent, TB Hospital, Sargodha. Therefore, his posting as Medical Superintendent on 11-6-1984 (annexure C of appeal) was irregular and illegal.
(vii) An illegal order is void in law. Vide PLD 1974 Lah. 434, "a void order will have no value whatsoever and is simply to be ignored". Hence, the appellant's services were rightly dispensed with vide impugned order dated 8-1-1986 and his Review Petition rightly rejected.
(viii) The appellant's allegation that he had been discriminated against has been effectively rebutted by the respondents vide para. 13 of their written objections. They have indicated that the cases quoted by the appellant were quite different as none. Of them had already been removed from service. However, as the appellant had already been removed from service for unauthorizing absence abroad, the question of regularizing his absence subsequently did not arise particularly when he had not filed any appeal against order of removal from service.
(ix) In his appeal before this Tribunal, the appellant has concealed the fact of his removal from service in 1981.
(x) In the case of Abdul Rehman's Janjua v. Secretary, Ministry of Information and Broadcasting, Islamabad, reported vide 1987 SCMR 403, the petitioner had been similarly removed from service for remaining absent from duty on one pretext or the other and their Lordships in the Supreme Court of Pakistan observed as follows:- "The learned Members of the Tribunal have dealt with each one of the contentions. The first two contentions relate to the findings of fact which cannot be opened in these proceedings. The last contention has also been adequately dealt with in the impugned judgment. We agree with the learned Tribunal that the spirit of the Rules was not violated by the authority concerned rather the petitioner has been shown more indulgence than he deserved on account of his conduct."
The above quoted observations of the Supreme Court of Pakistan are as true in the present case as they were in the case of Abdul Rehman's v. Secretary, Ministry of Information and Broadcasting.
8. In view of what has been stated in the foregoing paragraphs, we have come to the conclusion that the appeal has no legal force and it is accordingly rejected.
There will be no orders as to costs.
A.E. 126/Sr.P