SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---This is an appeal by Muhammad Jahangeer Khan Ward Boy, District Headquarter Hospital, Kotli against the order dated 15-6-1991 made by Director,. Health Services by which on appeal brought before him, the appellant was reinstated on his post but the period during which he remained out of service w.e.f. 26-7-1990 till 15-6-1991 was ordered to be treated as leave without pay. The appellant impugns above order of Director, Health Services on the following grounds before this Tribunal:--
(a) that after having accepted the contention of the appellant that his removal from service had taken place without following the relevant procedure prescribed by the Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977, the Director, Health Services has illegally rejected a part of his appeal regarding payment of his salary for the period he remained out of service because of illegal order of his discharge issued by the Office of Medical Superintendent, District Headquarter Hospital, Kotli; .
(b) that the impugned order is illegal for the reasons that no show-cause notice was issued to the appellant nor any inquiry under Efficiency and Discipline Rules was held against him;
(c) that no charge-sheet was served upon the appellant and as such the impugned order is not maintainable for being illegal and without jurisdiction;
(d) that the absence of the appellant from duty was not intentional and it had occurred because of untimely death of his real aunt;
(e) that under rules, the appellant was entitled to be afforded an opportunity of personal hearing but the same was not granted to him by the respondents and the impugned order was not maintainable on that account also.'
2. At the end, if it is requested by the appellant that after accepting his appeal, the impugned order by which he has been granted leave without pay for the period he had remained out of service because of illegal order of the respondent No. 2 may be cancelled and the respondents be directed to allow him full salary for that period.
3. By a short order of this Tribunal dated 23-10-1991, the above-noted appeal was admitted in this Tribunal for regular hearing and the respondents were directed to submit their objections if any in regard to maintainability of the appeal pending against them. In written statement submitted by the respondents paras. Nos. 1 to 3 of appeal were accepted to be correct while paras. Nos.4 and 5 were denied.
4. We have considered the arguments as were addressed by the learned counsel for the parties.
We have also examined the impugned order by which the appellant has been refused his salary for the period he remained out of service because of his illegal discharge from service. Under the impugned order the Director of Health Services (respondent No. 1) accepted the departmental appeal of the appellant and decided as under:--
(i) that the appellant is reinstated on his post with immediate effect;
(ii) that a fresh inquiry shall be initiated against the appellant under Efficiency and Discipline Rules by the Medical Superintendent, District Headquarter Hospital, Kotli;
(iii) that the period during which the appellant remained out of service because of his removal from service shall be treated as leave without pay;
(iv) that the Order No. 11745-46/DHS/91, dated 5-6-1991 shall be treated as cancelled.
4. The decision taken by the Departmental. Authority makes it very clear that the appellant was not absolved of the charge of absence from duty. He was reinstated on his post because of the fact that the Authority had not followed the relevant rules of procedure as was prescribed under Azad Jammu and. Kashmir Efficiency and Discipline Rules, 1977. The Appellate Authority allowed the appeal purely on legal grounds and ordered the Authority to initiate fresh proceedings under Azad Jammu and Kashmir Efficiency and Discipline Rules against the appellant. At the same time, the Authority refused to treat the appellant on duty for the period he remained out of service. We sent for the Administrative Officer of Health Department to know whether the proceedings under Efficiency and Discipline Rules against the appellant have been initiated and finalised by the Department. It was disclosed to us that the Departmental inquiry was still pending against the appellant. Therefore, we do not feel ourselves inclined to allow this appeal unless the Departmental inquiry initiated against the appellant is completed and finalised. In the given circumstances, it is ordered that the question of pay of the appellant for the period he remained out of service shall also be determined by the Authority himself after the inquiry report is submitted to him for his orders. However, the Health Department is directed to expedite the inquiry proceedings and decide the matter within next two months positively. The appeal is filed. No order as to the costs.