Through this appeal Dr. Tauseef Ahmad, former Veterinary Officer (Health) Chak 'No,30-SB, Sargodha, challenges the order of his removal from service, dated 16-11-1996 (Annexure "W").
2. Facts of the case briefly are that after his appointment the appellant served only for 12 days and then applied for two years E.O.L. which was rejected by the competent Authority. Notwithstanding the rejection, the appellant left the office and remained absent from 15-6-1993 to 30-8-1995.
Disciplinary proceedings were initiated against him under Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 to which he did not initially respond. He, however, was smart enough to join duty on 15-6-1995 and somehow or the other procured his posting orders, at Civil Veterinary Dispensary at Chak No,30/SB.
3. The Inquiry Officer (Sh. Khurshid-ul-Haq) after hearing the appellant proposed the penalty of removal from service vide order, dated 13-10-1994. This was agreed to by the Authorized Officer vide order, dated 3-12-1994. The matter came up before the authority i,e, Secretary Livestock, Punjab who issued him a notice of personal hearing under rule 18 of the E &. D. Rules, 1975, on 14-11- 1996. He was heard but failed to satisfy the Secretary i,e, the authority. The Secretary Livestock and Dairy Development imposed major penalty of removal from service under rule 4 (a,(iii) of the E & D Rules, 1975 from the date he had absconded from duty i,e, 15-6-1993. This order was passed on 16- 11-1996. The representation of the appellant, dated 15-12-1996 was virtually rejected by the competent Authority on 6-2-1997.
4. The appellant has challenged the validity of the order of his removal chiefly on the ground that he had a genuine and reasonable ground for proceeding on leave which was illegally rejected.
5. While defending the impugned order, it was submitted by the Department in their comments that the appellant had initially applied for three days casual leave from 12th to 14th June, 1993.
Instead of reporting for duty on 15-6-1993, he sent an application on 19-6-1993 for grant of E.O.L. for two years on the ground that on account of domestic problems and unavoidable circumstances, it was difficult for him to continue his service with peace of mind. The request was refused by the competent Authority and he was proceeded against under E & D Rules, 1975. He was issued a show-cause notice but he failed to appear before the Inquiry Officer. However, he chose to appear before the Authorized Officer on 23-4-1996 who awarded him a minor penalty of Censure on 5-5- 1996. The Secretary of the Department as authority, however, called for the entire record and after giving him personal hearing, awarded major penalty of removal from service on 16-12-1996 w,e,f, 15-6-1993.
6. It is submitted by the learned counsel for the appellant that his absence was on account of circumstances beyond his control and he has established on record that his presence at his residence was essential. It was further submitted that under no law or rule the authority was competent to award punishment with retrospective effect.
7. Defending the impugned order, the learned D.A. argued that as for the retrospective effect of the orders, the defect has been substantially cured by the competent Authority and his removal from service has been ordered w,e,f, 15-6-1996. According to him, we are now left with the validity of order of removal from service passed by the authority. Although the Authorized Officer had imposed the penalty of censure in the given circumstances of the case, nevertheless, being possessed of the authority under rule 18 of the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1975, the Secretary as authority requisitioned the record in order to determine the validity, propriety and legality of the order passed by the Authorised Officer and after considering all the circumstances of the case and the gravity of the charge had imposed appropriate and reasonable penalty by means of order, dated 16-11-1996 while disagreeing with the subsequent Inquiry Officer and agreeing with the former Inquiry Officer.
8. Arguments have been heard and record perused.
9. It will be apt to make a reference to the decision reported as 1998 SCMR page 1898 wherein their Lordships of the Supreme Court were pleased to hold in a case of identical nature:-- "(11)Indeed, it is a well-settled proposition of law that an executive order cannot operate retrospectively but the above principle is not applicable in a case in which an employee is proceeded for misconduct on the ground of unauthorized absence from duty. In such a case, the employer will be entitled to dismiss or remove or terminate the services of the employees concerned with effect from the date, of unauthorized absence of the employee. In such a case, the employee cannot be treated on duty during the period when he remained absent unauthorized."
10.In this case, it appears that some of the officials of the department were in league with the appellant. When he remained absent without leave why was he allowed to join as per his own volition. Anyhow, the department appears to have been very lenient with the appellant in treating him on duty till 15-6-1996. In such a case, it was the duty of the appellant to have established beyond reasonable doubt that he had any genuine cause for remaining absent. The plea taken by him that initially his mother remained ill and then some other relative was afflicted with some disease appears to be a sheer concoction. The appellant does not seem to have come to this Court with clean hands. If his mother, father or any other relatives were suffering from sonic ailment, he was at liberty to request for leave until they are cured. This could have been for a week, for a fortnight, for a month or so and then it could have been prolonged or extended with the prolongation of the disease of the relatives. His insistence at the very outset for extraordinary leave for two years shows that he had some other purpose in his view and wanted to pursue job or callings more beneficial or profitable to the one on which he was serving. The leave sought for two years. thus, appears to have been applied as a ruse or trick to avail some other more profitable opportunity. The certificates produced by him. therefore, appear to be fake ones." The initial, application does not reveal that it was on account of ailment of some of his relatives. It was rather to the following effect:-- "To The Secretary, Livestock & Dairy Development Department, Government of the Punjab, Lahore.
THROUGH PROPER CHANNEL Sub Extra-Ordinary Leave-Application.
Honourable 'Sir.
Most respectfully, it is submitted that I am serving as Veterinary Officer (Health) I/c Civil Veterinary Hospital, Kahuta, District Rawalpindi since May 29, 1993. I proceeded on casual leave to my home at Faisalabad w,e,f, 12-6-1993 to 14-6-1993. But due to domestic and unavoidable circumstances, it is very difficult for me to continue my service with peace of mind.
So, the undersigned hereby submit an extraordinary leave (without pay) for a period of 2 years w.e.f: 15-6-1993 to 14-6-1995 for your sympathetic consideration and kind orders for sanctioning leave for the said period, please.
Thanking you in anticipation.
Date: 15-6-1993 Yours obediently (SO)
Dr. M. Tauseef Ahmad."
Subsequently, he came up with the certificates showing the illness of his mother and some other relatives. It is not understandable as to what prevented him initially coming up with the plea that he proposed to go on leave for treatment of his relatives. A careful analysis of the circumstances would, therefore, show that the officer had absented from duty without any reasonable cause and the order of the competent Authority was fully justified.
11. It is noteworthy that the department itself has cured the defect and removal from service has been ordered w,e,f, 16-11-1996 instead of 15-6-1993. As such , there is no merit in the appeal which is hereby dismissed.