SH. RIAZ AHMAD, J.---This order shall dispose of two appeals; viz. CA 95/93 filed by Secretary to the Government of the Punjab Communication and Works Department, Lahore against Muhammad Yaqoob Asad, and CA 96/93 filed by Muhammad Yaqoob Asad against Secretary to the Government of Punjab Communication and Works Department, Lahore. Both these appeals through leave to appeal are directed against the same judgment delivered by Punjab Service Tribunal on 21-4-1992, whereby, dismissal of appellant Muhammad Yaqoob Asad in CA No 96/93, from service was set aside, and he was reinstated in service. This order has been assailed by Secretary to the Government of Punjab Communication and Works Department, Lahore in CA 95/93, while through CA 96/93 appellant Muhammad Yaqoob Asad calls in question the same order making a grievance of refusal on the part of Punjab Service Tribunal, Lahore to allow him back benefits.
2. Facts in brief relevant for the disposal of both the appeals, referred to above, are enumerated as under: On 22-6-1977 appellant Muhammad Yaqboob Asad (in CA 96/93) was posted as XEN, Road Construction Division, Shandara, and on the next day of his posting, he reported to the Chief Engineer that a fraud had been committed in the Road Construction Division Shandara, and disclosed the name of Saleem Khan, an SDO as responsible for the said fraud. Accordingly, the matter was looked into, 41 id an F.I.R. Was lodged by the Department not only against the appellant, but against other officers also. After the investigation of the case, Chillan was submitted in Summary Military Court against appellant and others. The appellant alleged that since he was being made a scapegoat and was harassed and victitnized therefore, he absconded and thus he was tried in absentia and was convicted under M.L.R.
31. Simultaneously with the criminal proceedings, departmental action was also initiated against the appellant and other officials found involved on the charge of inefficiency because construction of new carriageway at Lahore-Sheikhupura Road was found below the requisite standard at various places. The officials other than the appellant were served with almost identical show- cause notices by the Secretary, Communication and Works Department being the Authorized Officer. Since the appellant absconded, thus, service of the notice could not be effected upon him.
However, after the perusal of the replies submitted by other officers to the show-causes notices, referred to above, and after hearing them, the punishments mentioned against the names of the following persons were awarded to them:---
(1) Naseem ud Din, XEN - Warned to careful in future.
(2) Mian Ayyaz Ahmad, SDO - Censured
(3) Saleem Asghar Hashmi, SDO - Censured
(4) M.Iqbal Qureshi, Sub-Engineer One increment stopped'
(5) Sagheer Ahmad Chatha Sub- EngineerDepartmental proceedings dropped as he had since left service.
Case of the appellant Muhammad Yaqoob Asad was submitted by the Authorized Officer to the Chief Secretary, Punjab- The Authority, and it was recommended that penalty of dismissal from service be imposed upon the appellant. The Authority approved of the recommendation made by the Authorized Officer, and thus, the appellant was removed from service in absentia vide order dated 4-11-1981. After the lifting of the Martial Law, the punishment awarded to the appellant under M.L.R. 31 by the Summary Military Court in his absentia was remitted by means of Presidential Order dated 7-12-1988. The appellant in these circumstances, approached the Department and requested for the supply of the copy of the impugned order dated 4-11-1981 and thereafter the appellant filed a review petition which was dismissed being barred by time, vide order dated 6-6- 1990.
Aggrieved by the aforesaid order, the appellant invoked the jurisdiction of the Service Tribunal, and contended that the case was not time-barred, because the original order of dismissal dated 4-11- 1981 was never endorsed/dispatched to him, nor the same was ever notified through press. It was further contended before the Service Tribunal that since the copy of the dismissal order was supplied to him on 31-3-1990, where after, he made a review/appeal, which was dismissed, therefore, the limitation for filing appeal should have been computed from the said date. It was further contended that the charge-sheet and the show cause notice were not served upon him, and were baseless. It was also urged that discriminatory treatment was accorded to the appellant, inasmuch as, a joint enquiry was held in regard to co-accused, who were let off and were dealt with leniently and were subsequently promoted, therefore, on the basis of the similar charge, he should not have been awarded the major penalty. It was also contended that the test of the material used in the construction of road was conducted by the Governor's Inspection Team and the Director Road Research and Material Testing Institute in the absence of the appellant and therefore these reports have no bearing upon the appellant in view of the case reported as 1981 PLC (C.S.) 285.
It was further contended that small variations after such a long time between the results of the tests and the position at site were quite normal, and were thus, immaterial for imposing the penalty upon the appellant. It was further contended that the final bill had been paid by Mr. Masood Ali Khan, Executive Engineer, and not by the appellant, and in any case if the work was found defective, it could have been set right at the risk and cost of the contractor, as per agreement entered into between the contractor and the Department.
It was urged that like the appellant, Naseem-ud-Din XEN co-accused was also the in charge of a portion of the same road, but he was dealt with leniently. Lastly, it was contended that one of the grounds to proceed against the appellant resulting in his dismissal was that he had absconded, which was not part of the charge-sheet, and no notice for personal hearing was given to him.
3. The Punjab Service Tribunal examined all these contentions raised on behalf of the appellant before it, and also perused the relevant record of the case. The Tribunal thus came to the conclusion that discriminatory treatment was accorded to the appellant; and the mind of the Authority was prejudiced by the Authorized Officer against the appellant. The Tribunal also observed that the charge contained in the show-cause notice was only to the extent of inefficiency, but in the summary submitted to the Chief Secretary by the Authorized Officer, the charge of misconduct was also added by stating that the conduct of the appellant was not above board, and that he also failed to respond to show-cause notices sent at his address; and that the appellant did not turn up for personal hearing in spite of notices published in the press. The Tribunal thus observed that absence of appellant and non-compliance of the show-cause notices was made basis for imposing major penalty of dismissal upon the appellant which was extraneous to the charge-short.
4. The Service Tribunal also came to the conclusion that the Department after perusing the replies of the co-accused to the show-cause notices had come to the conclusion that no case was made out against them, therefore, the same treatment ought to have been meted out to the appellant.
The Tribunal also took an exception of such discriminatory treatment when the replies of the co- accused were the same as given by Naseem-ud-Din XEN, but different kind of punishments were awarded to each accused and no reasons were given as to the award of different punishments, inasmuch as, Naseem-ud-Din XEN was only warned to be careful in future, two SDOs were merely censured; one increment of a Sub-Engineer was stopped and against another SE departmental proceedings were dropped.
5. The Service Tribunal finally held that actually the ascendance of the appellant during the departmental proceedings prejudiced the mind of the Authorized Officer and ,the Authority, and thus, they proceeded to impose the major penalty of dismissal upon the appellant not only on the basis of charge of inefficiency, which did not conclusively stand proved against him, but on an other extraneous charge of misconduct for not responding to the show-cause notices. It was also held that the charges against the appellant were neither examined nor established by the Authorized Officer or the Authority as was done in the case of other co-accused. Thus, the Tribunal held that absence from the proceedings by appellant could not be considered to be a proof of the charge leveled against him. In final analysis, the Tribunal observed that since it is admitted that the charge against Naseem-ud-Din XEN and the appellant was the same, but the former was let off only with a warning, therefore, the appellant could not have been dismissed from service.
6. Leave to appeal was granted by this Court to examine the mode of service to be effected upon an absconding officer. Our attention was drawn to A three publications made from time to time of Pakistan Times and one in daily Nawa-i-Waqt calling upon the appellant to appear and to face the enquiry.
We have heard the learned counsel for the parties at length, and have perused the order impugned. At this stage after having seen the entire record, we are of the view that it would not be appropriate to examine the question of mode of service upon the absconding officer because the departmental proceedings against the appellant are full of flaws, and it seems that the charge of negligence was not probed, and on the basis of the same charge Naseem-ud-Din, XEN was let off only with a warning while the appellant was dismissed from service. In this view of the matter, no exception can be taken to the findings arrived at by the Service Tribunal, and the consequent reinstatement of the appellant in service. The Service Tribunal examined the case very minutely and noticed the flaws in the enquiry. The discriminatory treatment meted out to the appellant persuaded the Service Tribunal to pass the order impugned. That is why, we decline to examine the question of the mode of service upon the absconding officer, and the question can be dealt with in an appropriate case as and when such question arises. However, while maintaining the judgment of the Service Tribunal, we are of the view that since no enquiry was at all conducted into the charge leveled against the appellant, therefore, this matter should be left open to the Department to institute a fresh enquiry if deemed proper by the authorities concerned. With this observation, we are not inclined to interfere with the order impugned, and therefore, appeal (CA 95/93) is thereby 18 dismissed.
8. As far as appellant's prayer for back benefit is concerned, we are not inclined to interfere with the order impugned because award of such benefits was discretionary with the Service Tribunal, therefore, Ate decline to grant the relief of awarding back benefits. Hence, this appeal also stands dismissed.