The facts of this case are as follows. The appellant had joined service on ad hoc basis in 1970. It was followed by regularization of his service in 1973. His services were terminated with effect from 16-4- 1984 on account of wilful absence vide Annexure 'A'. His appeal was accepted by respondent No,2 on 14-11-1994 and the order, dated 16-4-1984 was set aside having been found suffering from legal infirmities and on the finding that no inquiry as envisaged under rule 7 of the Punjab Civil Servants (E&D) Rules, 1975 was ever held. However, by the same order, dated 14-11-1994, the period of absence from 18-7-1983 to 12-9-1994 was regarded as "break" in service resulting" in forfeiture of the past service for purposes of pension. It was also directed that "reinstatement will be deemed as fresh appointment for all purposes".
2. The aforementioned appellate order, dated 1-11-1994 was further challenged before the Government but the representation was declined on the ground that as per advice of the Regulation Wing of S&GAD, received through Secretary, Communication and Works Department vide letter, No,SOE-II (C&W) 12-65/96, dated 13-10-1996 "2nd appeal" could not be entertained. A copy of the above advice was communicated to the appellant through Ends. No,PF/5315/dated 28-4-1999 (Annexure 'D' to the Memo. Of appeal may be seen). Thereupon, the appellant filed the present appeal.
3. On 20-7-1999, the learned District Attorney had appeared on behalf of the respondents. On 28-3- 2000 the respondents were directed to file written objections with a caution that in case objections were not filed by the next date, ex parte proceedings would be carried out and costs of Rs,2,000 might also be awarded against them. However, no comments were filed by the respondents. The appeal was, therefore, heard on the present record.
4. I have examined the impugned order passed by the respondents with Care.
5. A reading of the impugned order, dated 14-11-1994 would show and show very clearly that the order of termination, dated 16-4-1984 was found to suffer from serious legal infirmities. It was noted that the Enquiry Officer had not conducted the enquiry in accordance with the provisions of rule 7 of the P.C.S. (E&D) Rules, 1975. It was also noted that the Authorised Officer had also failed to determine if the charge against the appellant was proved or not. It was further found that no opportunity of hearing was given to the appellant by the Competent Authority before imposing major penalty. For these reasons, the appeal was "accepted" and the impugned order under appeal was "set aside'. Nevertheless, the appellate authority proceeded to impose the following penalties:-- "The period of absence from duty from 18-7-1983 to 12-9-1994 will constitute break in service and result in forfeiture of the past service for purposes of pension.Reinstatement will be deemed as fresh appointment for all purposes."
' It appears that the appellate authority (respondent No,2 herein) was totally oblivious of the import and meaning of "reinstatement" which he himself had ordered in para.2 of the impugned order, dated 14-11-1994. The term "reinstatement" means as per the Black's Law Dictionary and Standard Oxford English Dictionary, "to reinstall, re-establish or restore person or thing to its former state or conditions". A reference may be made 1992 PLC (C.S.) 621. In my humble opinion, the conditions attached to the "reinstatement" of the appellant, were totally unwarranted and unjustified. The learned appellate authority took almost ten years to decide the departmental appeal. It is height of things.
6. Likewise, when the appellant filed a petition terming it as an "appeal" before the Superintending Engineer, Highway Circle, Bahawalpur, he took four and a half years to inform him (the appellant) that second appeal was not competent as per advice of the S&GAD, Government of the Punjab received through the Secretary, Communication and Works Department vide Letter No,SOE-II- (C&W)12-65/96, dated 13-10-1996. It is evident that the advice obtained from the Government on the maintainability of the second appeal was communicated to the appellant by the S.E., Highways Circle, Bahawalpur on 29-4-1999 vide Endst. No,FF/5315. One could imagine the performance of the respondents.
7. As already noted above, the respondents allowed the appeal to proceed ex parte against them and they did not bother to file written comments/objections despite caution as noted in para.3 above. The conditions attached to the reinstatement as highlighted above being totally unwarranted, unjust and void ipso facto, the question of limitation must be held to have paled into insignificance. 1999 SCMR 1245 may be referred to.
8. Wrong mention of the word "appeal" could not debar the respondents or for that matter, the Government to treat it as revision under rule 18(1) of the Punjab Civil Servants (E&D) Rules, 1975 which authorised the Government to call for and examine the record of any proceedings before any authority for the purposes of satisfying as to the correctness, legality or propriety of any finding, penalty or order recorded or passed and as to the regularity of any proceedings of the authority. Sub-rule (3) of rule 18 (ibid) provided an opportunity to the accused to file a revision with the condition that he would not so file a revision where he would have a right of appeal but appeal was not brought by him. These rights are not dependent on the capabilities of the accused.
9. For all the above reasons, I have no option but to set aside the two conditions reproduced in para. 5 of this judgment as were attached to the reinstatement of the appellant by order, dated 14- 11-1994 by respondent No,2. . The result would be that the appellant would stand reinstated with all the back benefits. A copy of this judgment shall be sent by the Registrar of this Tribunal to the worthy Administrative Secretary, Government of the Punjab (Secretary C&W), Lahore to see as to who was responsible for keeping the departmental appeal pending for decades and as to who is responsible for the loss which will now be suffered by the Government on account of payments to the appellant even for the period during which he did not work. Loopholes invariably provided to the accused must be checked and plugged.