ABDUL AZIZ MALIK, MEMBER-I.-- Abdul Ghani appellant, joined service as a Junior Clerk on 16.12.1955 in the Health Department, Government of the Punjab. He was promoted as a Senior Clerk in the department with effect from 30.3.1966 and was confirmed as such with effect from 1.7.1974. He was serving as a Senior Clerk in the Mayo Hospital, Lahore when he proceeded on 22 days earned leave (duly sanctioned by the competent authority) from 13.7.1977 to 3.8.1977 on medical grounds. He, however, tendered his resignation on 4.8.1977 with immediate effect from 4.8.1977 to the Medical Superintendent, Mayo Hospital Lahore (respondent No.2) on the ground that "his family circumstances did not allow to continue to join his service." An amount equivalent to his one month's pay was deducted from his leave salary, in lieu of his one month's notice for resignation, which was accepted by the Administrative Officer, Mayo Hospital, Lahore,(Respondent No.3) with effect from 4.8.1977, vide his impugned order dated 28.9.1977.
2. Against that order, the appellant submitted his Departmental Appeal/Representation dated 26.5.1981 to the Secretary Health, Government of the Punjab(Respondent No.1) praying therein that" his resignation dated 4.8.1977 may be treated to be- a nullity as having been tendered in an unsound state of mind and he may be permitted to rejoin his service and to complete the age of superannuation (30.9.1994). In the alternative, as a special case he maybe granted the benefits of retirement".
3. His Departmental Appeal/Representation dated 26.5.1981 was based on the following main grounds:- i) I had been an employee of the Health Department for more than 21 years and my entire career of service has been clean and blotless. There has never been any complaint or adverse remarks against me from any quarter. ii) Due to hard labour and meagre sources of income I have been suffering from certain diseases including gouts and urine trouble. I had difficult family circumstances and have been suffering from worries on account of financial troubles. By the passage of the I also developed certain mental ailments which affected the working of my mind and body. I have been receiving treatment from Psychiatrist Dr. Ijaz Ahmad Qureshi, M.R.C. Psych:(London), Department of Psychiatry, Mayo Hospital, Lahore, besides certain private Psychiatrists .And Doctors. However, due to burden of financial worries my mind was so much impaired that I was not in a position to control my actions in the middle of 1977. In this state of mind and body I tendered my resignation from service on 4.8.1977 when I was serving in the Mayo Hospital, Lahore which was accepted by the Medical Superintendent, Mayo Hospital, Lahore on 28.9.1977. iii) The at of tendering resignation was not a voluntary at on my part as due to the afore stated reasons I was not in a position to control my volitions and actions. I continuously remained under treatment of different Doctors/Psychiatrists during the past years and it is after a prolonged treatment that my mental health has been recovered. On 27.4.1981 I appeared before my old Psychiatrist Dr. Ijaz Ahmad Qureshi, and asked him to give a certificate about my mental health. He did not issue a certificate but recommended my case for rejoining service. iv) At present I am in a fit state of mind and body and I can render my services to the department to the best of my capabilities."
4. The Departmental Appeal/Representation remained pending with the Respondent No.1 and Ultimately with reference to his reminder/application dated 17.2.1987 the appellant was communicated the following impugned final appellate order bearing No.S.O.(Admn.IV)-I-23/81 dated 26.2.1987 by S. Ali Raza Zaidi, Section Officer (Admn.IV), Health Department:- "The case has been examined at length previously and was rejected."
5. Feeling aggrieved the appellant filed a Writ Petition No.1359 of 1987 in the Lahore High Court, Lahore on 26.2.1987 which was dismissed vide order dated 3.10.1987 for the reason that the matter required recording of evidence and therefore, could not be decided in exercise of the writ jurisdiction. The petitioner/appellant was then suggested to file a civil suit.
6. Accordingly a civil suit was filed by the appellant before the Senior Civil Judge, Lahore on 1.11.1987 which was dismissed by him on 12.3.1989 for want of jurisdiction.
7. Against the impugned orders dated 28.9.1977 and 26.2.1987 of the Respondents the appellant Tiled the present appeal under section 4 of the Punjab Service Tribunals Act 1974 before this Tribunal on 4.5.1989. The appellant has also filed an application under Section 5 of the Limitation Act for condonation of delay in filing his present appeal within the prescribed time.
8. Main contention of the appellant based on the grounds as reproduced at para 3 above is that the at of tendering resignation by him on 4.8.1977 was not a voluntary, at on his part, because due to acute mental/physical ailments, unbearable tension of difficult family circumstances and strain of severe financial hardships he was not in a position to control his volitions and actions at the Relevant the; that on recovery from the mental ailments he approached the Respondent No.1 and submitted his Departmental Appeal/Representation dated 26.5.1981 to him with the request to permit him to withdraw his resignation and to rejoin his service as his case was fully covered under the Policy Instructions contained in the Services General Administration & Information Department's Circular letter No.SO.XII-2/96/59 dated 24.12.1959 but his Departmental Appeal/Representation was rejected by the Respondent No.1 unjustly and illegally. For condonation of delay in filing his present appeal the appellant advanced almost the same grounds as incorporated in his application under Section 5 of the Limitation Act. The appellant prayed for reinstatement in service on the compassionate ground that after having put in more than 21 years unblemished service his involuntary at of tendering his resignation on 4.8.1977 had deprived him and his family of the rightful benefits of his pensions/gratuity etc.
9. Learned D.A. Opposed the appeal by stating that the appellant had resigned of his own will and that there was no cogent for withdrawal of his resignation and his re-instatement in service at such a belated stage.
10. After hearing the parties at some length and on having perused the relevant record we now proceed to examine/determine the vires of the impugned final appellate order dated 26.2.1987 whereby the Departmental Appeal/Representation dated 26.5.1981 of the appellant was (purportedly) rejected by his Departmental Appellate Authority i.e. Secretary Health (Respondent No.1).
11. On scrutiny of the relevant record it has been noticed that the Departmental Appeal/Representation of the appellant was fob the first the proceeded on 11.7.1981 by the S.O.
(Admn.III) on the file bearing No.S.O.III-1- 23/81 when comments of the Medical Superintendent, Mayo Hospital, Lahore (Respondent No.2) were invited thereon. On receipt of the requisite comments from the Respondent No.2 vide his reference No.22975/P.F./M.H. Dated 20.9.1981 the appellant's Departmental Appeal/Representation was dealt with on 23.12.1981 by the S.O.(Admn.III) and the matter was referred to the SGA&ID (Regulation Wing) for advice. They returned the case on 23.6.1982, "inviting attention of the Administrative Department to the Policy Instructions contained in the SGA&ID's circular letter No.SO.XII-2-96/95 dated 24.12.1959 for taking decision in the matter at their own level as the SGA & IV did not come in the picture."
12. Thereafter the appellant's Departmental Appeal/Representation was dealt with by the U.S. (Admn.III) on 10.7.1982 Whose noting at paras 23/N to 24/N being relevant is reproduced below: -
23. "The M.S. Mayo Hospital, Lahore has confirmed that the applicant was under the treatment of Dr. Ijaz Ahmed Qureshi, Department of Psychiatry, Mayo Hospital, Lahore and on account of prolonged mental ailment, he could not control his volitions and actions. The resignation tendered, therefore, clearly falls under Para 4 of Policy letter (Page 4 Cor). After all a sane person would not tender his resignation after about 23 years service when he did not derive any benefit whatsoever out of it".
24. It is therefore, a fit case for taking action under Para-4 of the Policy letter No.S.O.XII-2-96/59 dated 24.12.1959. If approved, action may be taken accordingly. He may be reinstated in service on compassionate grounds. On reinstatement Mr. Abdul Ghani, shall be regarded as having- continued in service through-out."
13. The Additional Secretary (A) recorded his following views dated ^ 21.7.1982 at para 27/N of the file and submitted it to the Secretary Health (Respondent No.1):- "A person who resigns after 22 years satisfactory service must be under some kind of psychological stress and deserves to be pitied, in my opinion it is a fit case for showing clemency to an old employee by treating his resignation as involuntary and allowing him to rejoin service. It is only a clerical job."
14. In this way the appellant's case was submitted for the first and the last the to the Secretary Health (Respondent No.1), who disposed it of with the following orders dated 23.7.1982:- "He must be examined by Psychiatrist to assess his present mental state of affairs. Let us hold a medical board to find out facts of case which lead to his resignation.
ASA please see that re-instatement after such a long period may not be an audit objection."
15. Accordingly the appellant was medically examined on 27.11.1982 by a Medical Board headed by the Medical Superintendent/Professor S.A.R.Gardezi, with Professor of Medicine Mehmood Ali Malik and Professor of Psychiatry Ijaz Ahmad Khan Tareen, Mayo Hospital, as Members; and the Board submitted its report to the Secretary Health(Respondent No.1) vide endorsement No.31090/M.H.
Dated 6.12.1982.
16. On 11.12.1982, only the Medical Examination Report in respect of the appellant was put up by his subordinate official to the S.O.(Admn.III) with the following concluding noting at para 34/N:- "For information only. May file PI." which was never attended to by the S.O(Admn.III) with the result that the appellant's case/his Departmental Appeal/Representation dated 26.5.1981/his Medical Examination Report dated 27.11.1982/6.12.1982, were never put up for final orders/decision to the Secretary Health (Respondent No.1) in compliance with his order dated 23.7.1982 as reproduced at para 14 above.
17. As would appear from the record the appellant kept pursuing his case all along through various applications/reminders submitted by him from the to the to the Respondent No.1, some of which were dealt with on a new file bearing No.S.O.(Admn.IV)-I-29/83. On that new file, the appellant's Medical Examination Report was dealt with by the SO(Admn.IV) on 7.4.1985 vide his noting at paras 16/N to 18/N, concluding that: "Withdrawal of resignation after 7 years is meaning-less. For information please."
The case was submitted by him to the D.S(A) concerned for information who merely affixed his signatures thereon on 17.4.1985 at para 19/N and returned the file to the SO(Admn.IV), but then no decision was ever communicated to the appellant.
18. When the appellant moved yet another application/reminder dated 17.2.1987, only his Medical Examination Report was again dealt with and put up by -the S.O(Admn.IV) on 19.2.1987 vide his noting at Paras 20/N to 22/N of the new file, to the D.S.(A.II) with the following concluding noting at para 22/N:- "The case has been examined at length previously. Perusal of the last noting in paras I6 to 18 is requested in this connection. In the light of foregoing notes no action is, therefore, called for at this state."
19. The D.S (A) merely initialled it on 19.2.1987 and returned the file to the S.O(Admn.IV), who under his own signatures issued/communicated the following order bearing No.SO(Admn.IV)-I-23/81 dated 26.2.1987 to the appellant: - "Reference your application dated 17.2.1987 on the above I d subject. The case has been examined at length previously and was rejected."
20. And that is how the impugned final appellate order bearing No.SO(Admn.IV)-I-23/81 dated 26.2.1987 was passed and ultimately communicated to the appellant whereby his Departmental Appeal/Representation dated 26.5.1981 was purportedly rejected by his Departmental Appellate Authority i.e. Secretary Health (Respondent No.1).
21. From the above discourse it is absolutely clear that:- i) the impugned final appellate order dated 26.2.1987 rejecting the Departmental Appeal/Representation dated 26.5.1981 of the appellant was infact never passed/approved by his competent Departmental Appellate Authority i.e. Secretary Health (Respondent No.1) to whom the appellant's case was in fact never resubmitted, in compliance with his first and the last interim order dated 23.7.1982 recorded on the file, and as reproduced at para 14 above." ii) the impugned final appellate order dated 26.2.1987 was actually issued by the SO(Admn.IV) with the approval of D.S(A.II), who under the law were not empowered and competent to at/function as the Departmental Appellant authority in the case of the appellant and pass/approve/issue the impugned final appellate order dated 26.2.1987 by encroaching upon the exclusive jurisdiction of the Secretary Health (Respondent No.1). iii) the Departmental Appeal/Representation of the appellant dated 26.5.1981 is thus yet to be considered/decided on merits by the Departmental Appellate Authority of the appellant i.e. Secretary Health (Respondent No.1). iv) the appellant was never given any opportunity of personal hearing/leading his evidence by his Departmental appellate Authority i. e. Secretary Health (Respondent No.1) and his Departmental Appeal/Representation dated 26.5.1981 was never considered/examined by the Respondent No.1 on merits, at any stage throughout its pendency.
22. Resultantly we hold the impugned final appellate order dated 26.2.1987 to be illegal, ultra vires, void ab initio and therefore, of no legal consequence as against the appellant.
23. As regards the question of limitation it has already been held at para 22 above, that the impugned final appellate order dated 26.2.1987 of the Respondent No.1 was illegal, ultra vires and void ab initio. Thus it being a case in which the impugned final appellate order under adjudication was initially void and illegal, the provisions of the Limitation Act 1908 would not apply to it.
24. More-over on the point of limitation plea of the appellant is that immediately on regaining normalcy of mind he had submitted his Departmental Appeal/Representation dated 26.5.1981 to the Secretary Health (Respondent No.1) for withdrawal of his resignation and praying for reinstatement in service, which was rejected vide impugned appellate order dated 26.2,1987. He then filed a Writ Petition No.1359 of 1987 on 26:2.1987 in the Lahore High Court, Lahore, which was dismissed vide order dated 3.10.1987, suggesting him to file a Civil Suit. Accordingly he filed a Civil Suit before the Senior Civil Judge, Lahore on 1.11.1987 which was dismissed on 12.3.1989. Thereafter, against the impugned orders of the Respondents the appellant filed the present appeal before this Tribunal on 4.5.1989. In view of the above narrated facts and. Circumstances of the case we feel convinced that the appellant had been pursuing his case throughout diligently, and without any undue delay on his part. As such in the interest of justice the delay if any in filing the present appeal by the appellant before this Tribunal is hereby condoned.
25. For the foregoing reasons, the appeal is allowed, the impugned final appellate order dated 26.2.1987 is set aside, and in view of its peculiar facts and circumstances, the appellant's case is remanded to the Secretary Health, Government of the Punjab, (Respondent No.1) for expeditious decision of the Departmental Appeal/Representation dated 26.5.1981 of the appellant, on merits, in accordance with law, after affording him proper opportunity of personal hearing/leading his evidence. There will be no order as to costs.
Parties be informed.