SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the failure to supply a copy of the Enquiry Report vitiated the imposition of one of the major penalties on the appellant.
2. The appellant was an Inspector, Central Excise and Land Customs and he was posted to Jutana Salt Mines, Khewra Circle, Khewra, where he took over the charge on the 17th of June, 1981. On the morning of 21st June, 1981 in his absence the weighment of the salt was started which was objected to by the Sepoy on duty. The Sepoy was beaten in the process. A report was submitted to the Deputy Superintendent, who visited the spot on the 22nd of June, 1981 and learnt that the appellant had left his duty on the afternoon of 20th June, 1981, that he had not at all come for duty on 21st June, 1981 and 22nd June, 1981. In order to allow the contractor to continue the removal of salt, he had signed blank gate passes which were being utilized. The appellant was charge-sheeted. His reply to the charge-sheet was obtained. An enquiry was held by an Enquiry Officer. The Authorised Officer recommended the major penalty and the authority after considering all the material reduced his pay from Rs,520 per month to Rs,410 per month, the minimum of the grade. Aggrieved, the appellant went to the Service Tribunal and made the grievance of the fact that the Enquiry Report was not supplied to him. The Service Tribunal by the impugned judgment passed the following operative Order:-- "In view of the foregoing, we are of the opinion that the question of absence from duty of the appellant is established beyond any shadow of doubt. He could have easily arranged to inform the Deputy Superintendent at Khewra to avoid further complications.
' For the reasons stated above, the appeal is dismissed with no order as to costs. Parties to be informed."
3. Mr. Abdul Hakeem Khan, Senior Advocate, the learned counsel for the appellant has placed reliance on the decision of case reported as Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary PLD 1981 SC 176 to contend that a final show-cause notice alongwith the Enquiry Report should have been supplied to the appellant and in its absence the action gets vitiated. He has also relied upon the Leave Rules of 1980 which enjoined that medical leave has to be granted as a matter of course with the only condition that a second opinion could be obtained from the authorised doctor. Finally it was contended that the Enquiry Officer had made no recommendation, and it was the Authorised Officer who had made the recommendation with regard to the punishment. The report of the Handwriting Expert with regard to the signatures of the appellant was received on 8-2-1982 i,e. After enquiry etc. And about it the appellant had no notice. It was also contended that the penalty was arbitrary, extremely harsh and the suspension from 22-1-1982 to 9- 6-1982 was in any case illegal.
4. The supply of a copy of the enquiry report is not the requirement of any express provision of the enacted law or the rules framed thereunder. It is being insisted upon on the facts of a case as requirement of principle of natural justice. This difference has to be kept in view and has been sufficiently well explained in the case of Collector, Sahiwal and 2 others v. Muhammad Aktar 1971 SCMR 681 as hereunder:-- "The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view, then the defect, if any, in the initial order may be deemed to have been cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh PLD 1959 Kar. 669 it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would he wholly void; but if there be no such provision or if the provision he merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsaddah Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Pesh.
210.
' This Court too, has consistently taken the same view vide; The Commissioner of Income-tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410, Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62 and Mansab Ali v. Amir PLD 1971 SC 124.
' This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
5. No doubt on the facts of the case of Mir Muhammad it was found that the failure to supply a copy of the Enquiry Report had seriously prejudiced the civil servant because the facts indicated that during the enquiry, factors other than those on which the civil servant had been charged, had been taken into consideration and made the basis for dealing with him departmentally. In the case before us, there are certain features which clearly show that no prejudice whatsoever was caused or could be caused to the appellant. In the first place his absence from the venue of his postings was detected personally by his superiors. That fact is not in dispute. His explanation for the absence has been found to be inconsistent and remains so even before us because the medical certificate that he submitted explained his absence from 22nd of June, 1981 and not from 21st of June, 1981. He tried to explain the inconsistency in the medical certificate in his plea by stating as hereunder:-- "I was unwell and upset I did no care to go through the contents of the said certificate. It appears that due to rush in the doctor's clinic he put the date as 22nd instead of 21st, obviously quite unintentionally. I maintain sir, that I remained under his observation/treatment w.e. From 21-6-1981 morning. In view of the foregoing the question of my leaving the Headquarter without any application or permission from my superior officer does not arise."
6. The question of the appellant availing of the medical leave as a matter of right without informing the superior, without getting permission are not covered because he had a duty to be present on the location and was obliged, therefore, to seek leave before leaving that place. In any case, he had to inform his superior so that arrangement could be made for substitute to look after his duties. Section 18 of the Civil Servants Act provides that 'a civil servant shall be allowed leave in accordance with the leave rules applicable to him, provided that the grant of leave will depend on the exigencies of service and be at the discretion of the competent authority'. The statute obliged him to inform his superiors and to obtain the permission before leaving the place of his duties unattended.
7. It is true that the Enquiry Officer did not suggest any punishment but under the Rules he is not required to do so. It is the Authorised Officer who is competent to inflict minor penalty and if he considers that a major penalty should be imposed then he had to move the competent authority.
He followed the latter course and it was in accordance with the procedure.
8. The punishment awarded is permissible under the law. The absence of the appellant from the place of duty led to serious breach of discipline such as to adversely affect the functioning of the department. Keeping it in background it cannot be said that the punishment was too harsh or unjustified. We dismiss the appeal and maintain the orders of the Collector affirmed by the Service Tribunal, with no order as to costs.