' S. NASIM HAIDER (MEMBER).---The brief facts of the case are that the appellant was aggrieved by Order No, S.O. II(S)-2690/87, dated 29th June, 1993 passed by the respondent No,2 in the capacity of Authorised Officer whereunder the major penalty of removal from service was imposed upon him with the approval of the Authority concerned.
2. We have heard Mr. Abdul Latif Ansari, the learned A.A.-G. For the official respondents, as well as Mr. M. Anwar Cheema the learned counsel for the appellant and also perused the evidence and record, produced before us, at length. There is no point of law involved in this appeal, which revolves around the points of fact only.
3. The main contention of the learned counsel for the appellant, was that the impugned (1st) show- cause notice bearing Sell(H)-2690/87, dated 3rd April, 1993 was defective inasmuch as the alleged period of appellant's unauthorised absence was mentioned in its para 4(1) as "from 7-2-1992 to 9- 2-1992 and from 13-2-1992 to uptill now" whereas the appellant was present during the concerned period and he also drew his salary for the said period as certified by the concerned Treasury Officer, produced before this Tribunal. The learned A.A.-G. Contended that there was a typographical error in the impugned (1st) show-cause notice dated 3rd April, 1993 and the correct position was that the appellant was actually absent unauthorisedly from 7-2-1993 to 9-2-1993 and from 13-2-1993 to 3-4-1993 i,e, the date of the issuance of the (1st) show-cause notice. The extracts of the attendance register of the Chandka Medical College for the months of January, February, March and April 1993 were also produced before us through the Administrative Officer, Chandka Medical College, who appeared before this Tribunal on behalf of the official respondents. The Administrative Officer, Chandka Medical College also stated before us that the attendance register of the doctors was introduced by the present Medical Superintendent, Chandka Medical College and Muster roll for 1992, therefore, did not exist. According to the record produced before this Tribunal and as per extension of the learned A.A.-G. The appellant was absent unauthorisedly from 30th January, 1993 to 9th February, 1993 and again from 3rd February, 1993 to 21st February, 1993. In the month of March he was absent from 4th March to 7th March on 9th March and again from 23rd March to 31st March, 1993. In the month of April, 1993 he was absent from 1st April, to 19th April, 1993 i,e, the date of his suspension by the Government. The learned A.A.-G. Therefore, further contended that the appellant was habitual offender of unauthorized absence without intimation and permission. The appellant, according to him, did not deserve any mercy and was rightly removed from service with the approval of the Authority by the Authorised Officer. We have given due consideration to the arguments of the learned A.A.-G. But the fact remains that the 1st show-cause notice was patently defective inasmuch as the correct dates of app Hanes unauthorised absence were not mentioned. Further, the alleged typographical error of unauthorised absence from 13-2- 1992 (instead of 13-2-1993) to 3rd April, 1993 changed the' entire completion and aggravated the gravity of the alleged offence. The actual, unauthorized absence of 53 days (intermittent) was shown as unauthorised absence of 410, days (prolonged/continued). The magnitude of the appellant's offence was incorrectly and grossly magnified by 7344 (sic) i,e, approximately 8 time. In our opinion, due to this grave error the Authorised Officer, himself as well as the "Authority were misled and could not apply their mind correctly as to the actual magnitude of the offence committed by the appellant and what penalty was warranted in this case. Consequently, the major penalty of removal from service was imposed upon him which does ndt commensurate with the actual offence. The impugned (1st) show-cause notice, dated 3rd April, 1993 was also the basis of the final show-cause notice of even number dated 11th May, 1993 and this grave mistake of incorrect commutation of the period of unauthorised absence was not rectified therein too. The Authorised Officer and the Authority were misled, again and could not apply their mind correctly about the gravity of the offence and the propriety of penalty, called for the same. Therefore, the impugned order for removal from service of the appellant of even number, dated 29th June, 1993 was issued incorrectly and amounted to denial of justice, fair play and equity cannot be upheld by us.
4. However, the appellant, as well as his learned counsel could not offer any plausible or satisfactory explanation/clarification of the unauthorised absence of 53 days though intermittent without prior intimation and permission as per record of appellant's attendance produced before this Tribunal for the period January, 1993 to April, 1993.
5. We are, therefore, of the considered view that the impugned order dated 29th June, 1993 passed by the respondent No,2 in the capacity of the Authorised Officer, with the approval of the Authority suffers grossly from misstatement of facts magnified and enhanced unnecessarily to the extent of prolonged/continued unauthorised absence for 418 days, instead of 53 days, which artificially aggravated gravity of the charge and also misled the Authorised Officer and the Authority twice to impose the extreme penalty of removal from service upon the appellant. We, therefore, set aside the impugned order, dated 29-6-1993. It will, however, not be a bar for fresh proceedings against the appellant for the period of his actual unauthorised absence from duty without prior intimation and permission.
6. We have also noted with concern the last three lines of the impugned order of removal from service of the appellant, dated 29th June, 1993 wherein it is stated 'the period of unauthorised absence with effect from 13-2-1993 to the date of the issue of this order be treated as E.O.L., (without pay)" which creates annually and self-contradiction on the one side, the appellant was made to suffer pecuniary loss for the period of his alleged unauthorised absence and on the other hand he has also been penalized for the same charge by awarding the major penalty of removal from service. Since an accused cannot be convicted, and penalized twice for the same omission or commission as per established legal dictums, the use of such language is against the spirit of law.
Moreso, because on one hand it creates impression that the period of unauthorised absence was regularised by treating it is E.O.L., without pay and on the other hand despite this regularization, the major penalty of removal from service was also imposed for which no proper foundation has been laid down. We, therefore, observe that the use of such language is highly improper, and unjustified and Government may take appropriate necessary, measures in this regard so that there is no repetition of the same in the order of the Authorised Officers in future.
7. Given under our hands and seal of this Tribunal this 22nd day of September, 1994.