' The appellant was proceeded against under the Disciplinary Rules, 1975 for absence from duty w,e,f, 4-2-1996. The appellant during inquiry proceedings was not found available at the last known address. A proclamation in Roznama Khabrain of 25-11-1996 was published but the appellant did not join the inquiry proceedings. Respondent No,1 who was the "Authority" in the case in terms of rule 2(1)(b) of the Punjab Civil Servants (E&D) Rules, 1975, acting himself as the "Authorized Officer" also, directed removal from service of the appellant vide the impugned order, dated 11-12-1996 (wrongly noted in the prayer clause of the appeal as 11-12-1997). The appellant preferred an appeal before respondent No,2 on 7-1-1997 (Annexure 'A/4'). The appellant was informed by respondent No,2 vide order, dated 3-12-1997 that his appeal stood rejected. The present appeal was filed on 1- 1-1998 on the grounds:--
(i) That the "authority" having himself acted as the "authorised officer" also, was not competent to award major penalty of removal from service;
(ii) that the departmental appeal was rejected without recording any reasons whatsoever; and
(iii) that holding of a regular inquiry was sine qua non before awarding major penalty of removal from service.
2. The respondents contested the appeal and filed written objections contending that the appellant had never applied for leave; that his appeal before the departmental authority (respondent No,2) was barred by time and that final orders were passed by respondent No,1 after observing all the codal formalities as required under the Disciplinary Rules.
3. On 5-6-2000, the appellant had moved an application that he would be satisfied if he was awarded the penalty of compulsory retirement. Notice was issued to the respondents for filing reply and for arguments on the main appeal.
4. I have heard learned counsel for the parties and gone through the material on record.
5. The appellant was appointed as Naib-Qasid on 1-9-1982 in the office of respondent No,1 . His plea that he had applied for leave seems to he a subterfuge. Without getting the leave application duly sanctioned, he could not settle things sitting at home whimsically. However, the other plea of the appellant as recorded in paragraph 1 of this judgment seems to have considerable force. In Muhammad Razzaq v. Conservator of Forest and others (1994 PLC (C.S.) 477) and Government of Pakistan v. Zamir Ahmed (1996 SCMR 630), it was ruled that if the "Authority" himself proceeds to act as the "Authorised Officer", he would not be legally competent to award major penalty. The keywords of the proviso appended to rule 2(1)(b) of the E&D Rules, 1975, namely, "....To act as authorised officer" were interpreted and it was held that the safeguards provided to an accused civil servant could not have been curtailed by the Authority particularly because the Authority "initiates the proceedings partaking the status of a complainant or the prosecutor and then he punished the accused official assuming the role of a Judge".
6. Moreover, even if the appellant had not joined the inquiry proceedings, the department should have, as per the dictum in 1992 PLC (C.S.) 341, maintained the official record indicating that an inquiry was actually held in his absence. The departmental record did not show anything of the sorts.
7. In the above circumstances, I would have remanded the case for inquiry in accordance with law setting aside the impugned orders, because long absence from duty was not excusable in a Government Department. However, as the appellant had himself moved an application that he would be satisfied if the penalty of removal from service was modified to that of compulsory retirement, he appeared to have reconciled with himself perhaps because long absence on his part from duty without permission pricked his mind. The respondents did not take any serious objection to the application moved by the appellant on 5-6-2000 as noted earlier. Being Court of Appeal, the Tribunal would be within its mandate to modify the penalty as per request of the appellant as absence from duty stood admitted by him. I am conscious that compulsory retirement is also a major penalty but when the appellant himself admits his unauthorised absence and prays for modification of the penalty as aforementioned, I do not feel inhibited from acting upon the same being Court of Appeal with coextensive powers.
8. Under the circumstances, I dispose of the appeal in the following terms:--
(i) The penalty of removal from service shall stand converted into that of compulsory retirement;
(ii) the intervening period i,e, from the date of his absence from duty i,e, 4-2-1996 till the announcement of this judgment (26-6-2000) shall be treated as period on leave of the kind due and this question will be decided by the competent Authority (respondent No,1) within one month from the date of communication of this judgment; and
(iii) the parties shall bear their own costs.