MOHAMMAD SIDDIQUE KHATTAK, MEMBER.- This appeal has been filed by Ali Asghar s/o Daud Khan, Village Mohra Kalanwan, Tehsil Haripur, District Abbottabad, against the order of respondent No.2 dated 10.8.90, whereby he was dismissed from service and order of respondent No.1, dated 25.10.87, rejecting his departmental representation. It has been prayed that the appeal be accepted and the impugned orders be set aside and he may be reinstated in service with all back benefits.
2. Facts of the case, as narrated in the appeal are that the appellant was appointed foot constable District Police Abbottabad and had been serving as such for the last 12 years. On the basis of his good record of service he was promoted as L.H.C. During the year 1985, he fell seriously ill and in support of his request for the grant of leave on medical grounds he submitted medical certificate from 6.11.85 to 17.12.86. He remained bed ridden till 29.7.87 and for this period he submitted medical certificates from the to the to the Superintendent of Police Abbottabad. That his illness was verified by the authorised Medical Officer and Mr. Hukam Dad A.S.I. Haripur and authenticated by the local councillor and notable of the area. But despite his illness and the medical certificates submitted by him, respondent No.2 dismissed him from service on 10,8.87 (Annexure-A). Before his dismissal from service a Medical Board, for his medical checkup, was constituted with his consent but he was never informed about the date of convening of the Medical Board. That no inquiry was conducted against him and he was not informed about the fate of his request for leave. That the orders of respondent No.3 are mala fide, unjust and not covered by rules on the subject. That his departmental appeal was rejected by respondent No.1 without assigning any reasons. Hence this appeal.
3. Respondent No.3 in his reply has stated that the appellant joined the Police Force as constable on 22.4.1974, but he remained lethargic not caring for his duty and discipline. On earlier occasions he absented himself from duty subjecting himself to departmental action which is evident from his service record. He was prosecuted U/S 7 of the Essential Service Act and was fined Rs.40/- by the M.I.C. Abbottabad. That his absence from duty was wilful and without prior permission he left the station of his duty on 6.11.85, for which he was served with a show-cause notice. Instead of explaining his position and joining duty, he submitted medical certificates to justify his absence.
When a Medical Board was constituted for his medical check up, the appellant did not care to appear before the said Board on the appointed date i.e. 17.12.86. He was served with a final show- cause notice through the daily Mashriq, appearing in its issue of 26.6.87, but even then there was no response from him. He was therefore, dismissed from service and the action was covered by the Police Rules. His departmental representation was examined in the light of his past service record and having no force, was rejected. Respondent No.2 has stated that all the formalities were completed by respondent No.3, the appellant's dismissal is covered by rules, his appeal may be dismissed
4. Counsel for the parties heard and record perused. Counsel for the appellant argued that the appellant was seriously ill and was getting treatment at his home also submitting medical certificates in support of his request for the grant of leave on medical grounds, but his leave was not sanctioned by respondent No.3. He submitted that the appellant was prosecuted by the Police Department under the Essential Service Act and was fined Rs.40/- by the EA.C-IV, Abbottabad, which was paid on 25.2.87. This prosecution was for his absence from duty. His dismissal from service was also due to his absence from duty and since an official cannot be prosecuted and penalized twice on one and the same charge, therefore, when he was fined by a court for his absence from duty, he could not be penalised for the same charge by dismissing him from service.
The appellant's dismissal is therefore, illegal and is liable to be set aside. The learned counsel further submitted that the punishment awarded to the appellant is not commensurate with the charge levelled against him.
5. Respondents were represented by Mr Abdul Hamid P.S.I. Abbottabad, who, while controverting the above submissions, stated that the appellant left the station of his duty, without permission, for home. Had he been ill, he should have reported the matter to his superior officer for referring him to the hospital. Instead of availing treatment at his residence, he could be provided better treatment in the hospital. The appellant was informed that his request for leave on medical grounds has not been acceded to and that he must report for duty but he never cared. He was directed through the local police to resume his duty, but he failed to do so. He even did not care for the show-cause notice sent to him, though he was absent from 5.11.85 onward but he sent an application for leave on 1.7.86 supported by medical certificates. To ascertain as to whether he was really suffering from some illness or not, a Medical Board was constituted and he was informed at his home address to appear before the Board on 17.12.86, but he did not care to appear which meant that he was not suffering from any ailment, rather this was an excuses to cover up his absence. There was no medical certificate for the period from 283.86 to 1&.8.87. He was given a notice through the press to join his duty, failing which he would be proceeded departmentally and ex parte action would be taken against him. This notice appeared in the daily Mashriq on 26.6.87 but there was no response from him. He was again informed through the DSP Haripur on his residential address but he failed to resume his duty. In such a situation there was no option for the department but to proceed against him. His plea that no inquiry was conducted against him is baseless as he never bothered to attend his duty nor furnished any explanation for his wilful absence. Mere sending of medical certificates were of no use until he appeared personally to explain his position. As for the penalty of Rs.40/- imposed by the Court, it was submitted that since the appellant was absent and he was not attending his duty, therefore, he was proceeded against under Essential Service Act. Before the court he could not justify his absence from duty. On the other hand it was proved before the Court that he was wilfully absent from duty on the basis of which he was fined. Even when he was fined by the Court for absence he did not care to attend his duties, therefore the respondents had no other alternative but to take action against him which led to his dismissal from service. With regard to the point that the appellant could not be penalised twice for one and the same offence i.e. Fining him Rs.40/- and then dismissing him from service it was submitted that the Court's orders in the case did not debar the respondents from taking departmental action against the appellant, because even after the imposition of penalty he did not care to report for duty.
6. We have given our anxious consideration to the arguments of both the parties. We also perused the departmental record placed before us. The appellant submitted application for leave for the period from 7.11.85 to 28.3.86, supported by medical certificates, on 1.7.86 but at the same the he failed to respond to the notices of respondent No.3 sent to him at his home address. If he was really suffering from some illness then he should have presented himself before the Medical Board constituted for the purpose which would have given him appropriate advice for the treatment of his ailment and this would have satisfied his department as to the truthfulness of his statement.
Even if he did not receive the information about the meeting of the Board in the, as stated by him, he could make a request to his department to reconvene the Medical Board for his checkup but this was not done, although as admitted by the appellant, the Medical Board was convened for his check-up with his consent. Further for the period from 29.3.86 to 10.8.87 no medical certificate was submitted by the appellant and to a question as to why he could not send any application for this period, he stated that his place of duty was far away from his residence, therefore, he could not send any application. This plea is very weak and simply cannot be accepted. He was given a notice through the press but he failed to respond to it. Finally as a last resort, a notice was sen, to him through DSP Haripur, directing him to join his duty but he never cared. It was because of this attitude that the department dismissed him from service. The appellant could not convince us that his absence from duty was due to his ailment except a few medical certificates, which is not difficult to obtain these days from the medical practitioner on payment. Even the medical certificates for the period from 7.11.85 to 26.3.86 were submitted very late i. e. On 1.7.1986. The other point stressed by the counsel for the appellant was that the appellant could not be punished twice for one and the same charge i.e. Absence from duty. The appellant was fined Rs.40/- under section 7 of the Essential Services Act for his absence from duty but even then he did not report for duty. He was given ample the from 25.2.87 to 25.10.87 with repeated notices to report for duty but he did not pay any heed to these notices. Thus the appellant, by his own attitude, subjected himself to disciplinary action. In the circumstances we are led to the conclusion that the action of respondent No.2 was not wholly uncalled for. However we find that the punishment awarded to him is too harsh to be commensurate with the offence of the appellant. Further we have noticed that order No.OB 339-A, dated 10.8.87 dismissing appellant from service has been given retrospective effect from 6.11.1985, i.e. The date from which the appellant absented himself from service. This order could not be given retrospective effect from 8.11.1985, as there was no cause of action on that date. The order could be given effect only from the date on which it was passed.
7. To sum up, the appellant by his own attitude has exposed himself to disciplinary action. However, keeping in view his 12 years service in the police force we direct that his dismissal from service be converted into removal from service and such orders be made effective from 10.8.87 instead of 6.11.85. The period from 6.11.85 to 28.3.86 be treated as leave on medical grounds provided it is available to him as per leave rules. Appeal is disposed of, accordingly. There is no order as to costs.
File be consigned to record.