' The petitioner, Aurangzeb, a former senior clerk of Improvement Trust, Murree was dismissed from service by respondent No, 1/Deputy Commissioner/Chairman, Murree Improvement Trust, through the imposition of major penalty, on 22-1-1983. His appeal was dismissed by respondent No .2/Commissioner, Rawalpindi Division, Rawalpindi, on 11-4-1983 and his revision petition was dismissed by respondent No,3/Secretary, Government of Punjab, Housing and Physical Planning Department, Lahore, vide communication dated 20-10-1986. Hence, this Constitutional petition.
2. The relevant facts are that the Secretary, Murree Improvement Trust/Authorised Officer, on 14-9- 1982 charge-sheeted the petitioner under the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1975, applicable to the petitioner by virtue of Rule 21 of the Punjab Town Improvement Trusts Service Rules, 1945, made by the Governor of the Punjab, in exercise of the powers conferred on him by section 73 of the Punjab' Town Improvement Act, 1922, as under:
(1) That he left the station on 14th January, 1982 (AN) without obtaining any station leave or casual leave.
(2) That after availing two months' leave as requested from time to time, he failed to attend the office on 17-3-1982 and instead he forwarded an application for extension of one month leave supporting with a medical certificate dated 16-3-1982 of the Medical Officer, Daultala, TehsilGujarkhan. Thus he absented without any station leave from the office for one month.
(3) That once again he failed, to attend the office on due date of 17-4-1982 as per Medical Fitness Certificate and instead he attended the office on 19-4-1982 i,e, two days after the due date.
(4) That although a show-cause notice No, 3489/P/IV/29, dated 17-4-1982 was sent to his home address but he failed to submit his reply to the said notice within the specified period.
(5) That as per service record, it also reveals that he has been absenting off and on due to one reason or the other thus suffering the office work badly.
2-A. The enquiry was entrusted to Mr. Zafar Iqbal, Chief Officer, Municipal Committee, Murree, who in his report dated nil gave finding that charges Nos.3 and 5 stood proved against the petitioner. As regards other charges, he opined that the same stood dropped because the leave from 16-1-1982 to 16-3-1982 was allowed through ex post facto sanction. The Enquiry Officer concluded that the allegations of wilful absence and false claim of leave on medical grounds were proved against the petitioner. He also held that the petitioner was off and on a habitual absentee. He, however, on the basis of petitioner's longstanding recommended leniency and proposed minor penalty. The Authorised Officer agreeing with the report of the Enquiry Officer but not imposing the minor penalty, submitted/forwarded the petitioner's case to respondent No,1 in his capacity as authority.
The respondent No, l/the authority, as mentioned above, vide his impugned order dated 22-1-1983, imposed the major penalty and dismissed the petitioner from service. The operative part of the order dated 22-1-1983 is as under: "3. I have considered the enquiry report, the evidence on record and the version of the accused official. I agree with the findings of the Enquiry Officer that charges at Serial Nos.3 and 5 above have been proved. Although the leave of the accused official is stated to have been sanctioned, yet I think that the charge regarding leaving the station without prior sanction also stands proved.
The conduct of the accused official has been quite unsatisfactory. He absented himself from the office on various dates either without intimation or application or without getting leave sanctioned.
This appears to be a regular habit with him. He has grossly violated the office discipline. He appears to be incorrigible type of man and not fit to be retained in service. I, therefore, impose upon him the major penalty of dismissal from service."
3. The petitioner's appeal and revision, were dismissed by respondents 2 and 3 respectively on 11-4- 1983 and 20-10-1986. It may also be mentioned here that petitioner also filed an Appeal No,61 of 1987 before the Punjab Service Tribunal which was dismissed in limine through intimation dated 20-7-1988, on the ground that the Improvement Trust was a body corporate and its employees could not be treated as civil servants under the Punjab Civil Servants Act, 1974. The order passed by the-Punjab Service Tribunal has attained finality and was not assailed any further.
4. I have heard the learned counsel for the petitioner and have also been assisted by the learned counsel for the respondents. It may be mentioned here that at the time when the case was called on for hearing, the learned counsel for the respondents was not available and only the petitioners' counsel was heard and, therefore, the respondents were proceeded ex parte and after hearing the learned counsel for the petitioner the order of dismissal of the writ' petitioner on merits was announced verbally. However, later in the day, the learned counsel for the respondents turned up and requested for being marked present and as he rendered proper assistance even after the announcement of the dismissal of the writ petition, his presence has also been recorded in the judgment and the assistance rendered by him has also been recorded.
5. It is submitted by the learned counsel for the petitioner that the Enquiry Officer recommended imposition of minor penalty, it was not disagreed by the authorised Officer who was himself competent to impose the minor penalty but the authorised Officer acted illegally in not exercising the jurisdiction vested in him and by forwarding the case to the Authority. It is also submitted that the Authority could not have assumed the jurisdiction and could not have passed the order of dismissal from service unless the imposition of major penalty had been proposed and recommended by the Authorised Officer. On facts, the correctness of the allegations levelled against the petitioner have been denied. In the last, it has been submitted that the imposition of major Penalty under the circumstances is harsh as the alleged lapse on the part of the petitioner is merely minor. Reliance has also been placed on Dr. Abdul Majeed. Memon v. Province of Sindh through Secretary to Government of Sindh, Health Department and 2 others (1984 PLC (C.S.) 518, a judgment delivered by Sindh Service Tribunal in which the punishment of dismissal, in circumstances, was held to be too harsh and the same was reduced to that of compulsory retirement with benefit of pension admissible under the rules. Reliance on this judgments is of no avail to the petitioner because the same has been delivered by the Sindh Service Tribunal in the exercise of its appellate jurisdiction whereunder it is competent to consider the issue of quantum of sentence, whereas, it is doubtful that the issue of quantum of sentence can be gone into by this Court in the exercise of its Constitutional jurisdiction.
6. Learned counsel for the respondents has rendered assistance by making reference to, rule 4 of the Punjab Improvement Trusts Leave Rules, 1944, and Rule 35(3) of the Revised Punjab Leave Rules, 1981 framed under the Punjab Civil Servants Act; 1974. He has also placed his reliance on Cashier, United Bank Limited v. The State (1987 PLC (C.S.) 122) and Allah Ditta Waheed v. L.M.C. And another 1983 PLC (C. S.) 67.
7. Rule 21 of the Punjab Town Improvement Trusts Service Rules, 1945 provides that rules regarding conduct and discipline applicable to persons in the service of Government in Punjab Province shall apply to officers and servants of the Trusts, as far as they can be applicable and, therefore, the Punjab Civil Servants (Efficiency and Discipline) Rules governing the civil servants in the service of Province of Punjab are applicable to the petitioner. It may be mentioned here that even under rule 4 of the Punjab Improvement Trusts Leave Rules, 1944. Leave cannot be claimed as of right and the petitioner's case that his absence could have been treated by the Authority as on leave has no force because the discretion in this regard, under the above Rule, is reserved to the Authority empowered to grant leave, to refuse or revoke leave at any time and the petitioner has failed to establish that non-exercise of the alleged discretion in his favour was illegal or improper. In view of the above mentioned, the Revised Punjab Leave Rules, 1981 framed under the Punjab Civil Servants Act, 1974 are applicable to the petitioner and sub-rule (3) of Rule 35 of the above Rules provides that when a civil servant submits a medical certificate for the grant of leave it shall be, by an authorised medical attendant in the form attached to these rules. No such effort was even made by the petitioner. The petitioner had left the station of his duty without permission, his application for leave, prior to his leave in the station, had been declined on the ground that a disciplinary case against him had yet to be finalized and his presence was considered necessary and correctly on the ground that leave could not be claimed by him as of right. The fact of petitioner's illness was thoroughly probed into by the Enquiry Officer and the petitioner's story in this regard, his witnesses and then medical certificate were all held to be false and dubiously manoeuvred and the conclusions of the Enquiry Officer, in my opinion, cannot be held to be perverse or illegal. Even otherwise, the findings of facts cannot be interfered with and are not open to interference by this Court in the exercise of its Constitutional jurisdiction. Reference in this regard can be made to Allah Ditta Waheed v. L.M.C. And another supra). The argument of the learned counsel for the petitioner that the Authorised Officer had endorsed the view of the Enquiry Officer for the imposition of minor penalty, is also incorrect. The respondents, in para. 5 of their parwaise comments have given the details which show that the Authorised Officer served the petitioner with a notice to show cause as to why one or more of the penalties as prescribed in rule 4 of the Punjab Civil Servants (Efficiency' and Discipline) Rules, 1975 should not be imposed on him. The said notice has been enclosed as Annexure R 1 to the comments. The notice was duly replied and after considering the same, the Authorised Officer, under rule 8 of the above Rules, offered an opportunity of personal hearing to the petitioner before the respondent No,1/ the authority through notice dated 11-1-1983 (Annexure R-2) and the Authorised Officer's view is clearly depicted in the second paragraph of the same, wherein it was stated that "It is proposed to impose on you the penalty of whichever the Authority may consider necessary".. There is nothing on the record to show that the Authorised Officer proposed imposition of minor penalty. If this had been so, he would have himself imposed a minor penalty upon the petitioner on the receipt of his reply to show-cause notice dated 29th of November, 1982 (Annexure R-1). The very fact that he did not impose the minor penalty and referred the matter to the Authority shows that the Authorised Officer was of the view that the petitioner deserves the imposition of minor penalty and the major penalty could be imposed only by the authority. In Cashier, United Bank Limited v. The State (supra), the Enquiry Officer had recommended penalty of stoppage of increment for one year with a letter of warning. The competent Authority terminated services of the employee. It was held by a learned Single Judge of this Court that competent Authority could take final decision and was hot bound by recommendations of the Enquiry Officer. This would show that the argument of the learned counsel for the petitioner that the Enquiry Officer had proposed minor penalty, therefore, major penalty could not be imposed, has no force.
8. In view of the above mentioned, I see no merit in the petition, which is accordingly dismissed, leaving the parties to bear their won costs.