JUDGMENTABDUL HAFEEZ CHEEMA, CHAIRMAN - The appellant has assailed the order dated 1.8.2000 through this appeal whereby a penalty of withholding his promotion for a period of one year has been imposed upon him under Rule 4(l)(a)(ii) of the Punjab Civil Servants (E&D) Rules, 1975.
2. The facts which led the appellant to invoke the jurisdiction of this Tribunal briefly are that during his tenure as Additional Medical Superintendent, Service Hospital, Lahore, on 21.2.1997 the then Chief Minister, Punjab, visited the Hospital premises at 11.30 p.m. And found them to be unclean and d-irty and some of the wards Medical and para Medical Staff was found absent. The appellant was served with-a show- cause notice alohgwith charge-sheet and placed under suspension.
Professor Dr. Naseer Mahmoud Akhtar, Principal, K.E. Medical College, Lahore, was appointed as authorised officer and Professor Shamim Ahmad Khan was appointed as Inquiry Officer. According to the Inquiry Officer the appellant was not on duty at the relevant time. He, therefore, exonerated the appellant of the charges and submitted his report. The authorised officer agreed with him and recorded his findings accordingly. The worthy Chief Minister, however, did not agree with the findings and appointed Chairman, MIT, as an authorised officer, who nominated Hamid A. Malik as an Inquiry Officer. Mr. Malik proceeded with the inquiry and found appellant guilty. The Chairman/Authorised Officer agreed with him and consequently the penalty, indicated above, was imposed upon the appellant.
3. He has impugned, the penalty mainly on the grounds, inter alia, that he was not on duty at the relevant time as such he could not have been held guilty in, any manner, that a regular inquiry had already been held by Professor Shamim Ahmad Khan, which was concurred by the authorised officer, wherein he was exonerated of the charges. No valid ground was recorded by the worthy Chief Minister for disagreeing with the aforesaid findings and the fresh inquiry was totally uncalled for and unwarranted, that he was not associated with the second inquiry proceedings, as such that carried no sanctity in law, that despite repeated requests, the second authorised officer did not furnish him with a copy of inquiry report, which caused a serious prejudice to the defence of the appellant.
4. After admittance of the appeal to regular hearing, the respondents submitted their comments/written objections. Both the respondents conceded that at the crucial time, the appellant was not on duty but pleaded that nevertheless he was held responsible by the inquiry and authorised officers after fulfilling all the codal formalities.
5. I have heard both the parties at a considerable length and have perused the record carefully.
6. In this case the significant aspect of the matter is that the appellant had challenged its suspension by means of Constitutional Petition No. 26555/97 in Lahore High Court Lahore, in which it was inter alia, pleaded that suspension of the appellant was unjustified and the order, merited to be set at naught. The learned Judge relying upon the inquiry report of Professor Shamim Ahmad Khan and concurred by Professor Naseer Mahmood, Principal, K.E. Medical College, Lahore, was pleased to hold:- "This all shows that nothing has come out against the petitioner who was not found on duty according to the roaster at the visit of the Chief Minister of Punjab on 21.2.1997. In spite of conclusion of enquiry and submission of recommendation of the Authorised Officer as well as Secretary Health Government of the Punjab, the fate of the petitioner is still in- the doll drums." After these remarks the Court was pleased to order the reinstatement of the appellant.
7. In this case the main-stay of the appellant is that he was not on duty at the crucial date and time and has unnecessarily been dragged into the controversy and has been made to suffer mental torture and financial strain. In the very first para of appeal it has been emphatically claimed by the appellant that at the time of visit of the Chief Minister, he was not on nt rk Kto raniw hoc o/irtiittaH thc nnsitinn "as correct".
Respondent No. 2 also conceded this position.
8. - In para 2 of the memo, of appeal, it was alleged that he was not on-duty at the crucial time and in ground No. 4, he emphatically and categorically stated:-"(iv) That during the first inquiry no evidence to rebut the appellant's defence was produced by the prosecution. It was, therefore, proved that according to the above-referred duty Rosters appellant was not on duty on the evening of 21.2.1997 when the former Chief Minister visited the Hospital and noticed untidy conditions and absence of staff and as such appellant was not liable for those lapses."To this the respondent No. 2 submitted the following reply:- " Admitted."9. It was further contended by the learned counsel for the appellant that the second inquiry report was never provided to him despite his repeated requests which caused serious prejudice to his defence. In this regard, appellant's stance in ground-9 of the appeal is as follows:-"(ix) That though the impugned order is based on the Enquiry Report of the second Enquiry Officer yet copy of that report was also not furnished to the appellant. Thus appellant has been condemned unheard in so far as contents of that report are concerned."In reply to this paragraph, respondent No. 1 took up the following plea:-"The penalty of withholding promotion for a period of one year was imposed upon the accused after completing all the codal formalities."Whereas respondent No. 2 had furnished following reply:- "Relates to respondent No. 1."There was a clear assertion on the part of the appellant that he was not provided with the inquiry report. To this specific assertion, there ought to have been clear and unequivocal reply but respondent appears to have designedly given evasive reply, which shows that he has tacitly admitted the appellant's assertion.10. After clear admission by the respondents in their feplies that the appellant was indeed not on duty at the relevant time, there Was no fun in the further proceedings. However, in order to ensure that no injustice is done to either side, full-dress arguments were heard.11. It was next contended by M.A. Riaz, learned counsel for the appellant that the appointment of respondent No. 1 was incompetent and repugnant to the provisions of Rule 5(2) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975, which envisage that an authorised officer shall be appointed by the Authority if no authorised officer stands designated by the relevant Rules.12. The Government of the Punjab had designated Director Health Services' as the'.Authorised officer for' the Health Department vide Delegation of Powers Rules, 1975 (Annex.K).
That being so, appointment of any other officer as the authorised officer without having regard to the eventualities as mentioned in rule 2-A of the Punjab Civil Servants (E&D) Rules, 1975, was not covered by any rule. The argument of the learned District Attorney that it was the prerogative of the Chief Minister to appoint another authorised officer while disagreeing with the findings of the Enquiry Officer, seemed to be fallacious. Another person could be appoifited as the authorised officer (ignoring the officer, who stood designated as the authorised officer by Rules) only if the authorised officer was personally interested in the result of the proceedings and he had reported the matter to the Authority for authorising "another officer of the corresponding rank or status to act as the authorised officer" under rule 2- A(ii)(ii) of the PCS (E&D) Rules, 1975. It was indeed not the case of the respondents that the case fell under any of the eventualities as envisaged by rule 2-A of the Rules ibid. Under proviso to rule 8 of the same Rules, if the authority "is satisfied that inquiry proceedings have not been conducted in accordance with these rules and/or facts and merits of the case have been ignored, it may order initiation oi de novo inquiry". A combined reading of the above rules would reveal that even in case of ordering de novo inquiry, the authorised officer could not be changed particularly where the authorised officer stood designated by Rules.13. In this case, despite the insistence of the Court, the order of the Chief Minister appointing a new authorised officer while ordering de novo inquiry, was not provided thereby depriving the Court to correctly appreciate the import of the order. The initial inquiry officer and the authorised officer as well as the Secretary Health had clearly recorded their findings that the appellant was not on duty at the relevant time. There was, therefore no earthly reason to impose any penalty on a person who could not' have been held responsible by any rule of prudence. This fact has repeatedly been' asserted by the appellant as referred to above and has been[Vol.XX D.C.
Samson V. Director E.O.A.B. Inst. L&S.C. 191(Ch. Ejaz Ahmad, J.)conceded by the respondents all the time. It, therefore, stood proved that the appellant had ynnecessarily been dragged and subjected to mental torture and financial loss for no fault on his part. It has been claimed and claimed repeatedly by the appellant that his service record of 25 years was not merely unblemished but commendable. This fact was nowhere refuted by the respondents. In this view of the matter, after playing such a long innings in the field if a lapse of the nature attributed to him (which has not been proved on record) happens in such a situation, it merits to be considered with sympathy and may invariably be condoned.14. The Services Hospital, Lahore, is admittedly 1180 bedded hospital and is a huge organization. The charge of misconduct or inefficiency in the given situation cannot be said to have been proved. The appellant was Addl, Medical Superintendent at the relevant time.
In this view of the matter, it is obvious that the charge has not been proved against the appellant who admittedly was not on duty at the relevant time.15. As a result, the appeal is accepted and the impugned orders are set aside. Since the orders. Appealed against have been set aside, there would be no adverse effect on the promotion/seriiority of the appellant in any manner, revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.