1988 PLP (C (PLC(CS))

CHAUDHRY ABDUL RASHID (MEMBER).-‑This is an appeal under section 4 of the Punjab Service Tribunals Act, 1974 filed on 22‑5‑1986 by Mr. Muhammad Latif, Tracer, office of the Assistant Director, Local Government and Rural Development Department, Okara, in which he has impugned the order dated 8‑9‑19.85 of the Assistant Director, Local Government and Rural Development Department, Okara removing him from service w.e.f. 9‑6‑1985 and order dated 22‑4‑1986 of the Director Local Government and Rural Development, Lahore Division, Lahore dismissing his appeal. He has impleaded the Assistant Director, Local Government and Rural Development Department, Okara and the Director Local Government and Rural Development Department Lahore Division, Lahore as respondents. The appeal was admitted to regular hearing on 5‑6‑1986 and has been contested by the respondents.

2. The facts of the case are that the appellant joined service as a Tracer on 21‑6‑1982 in the office of Assistant' Director Local Government and Rural Development Department Okara. The Assistant Director Local Government and Rural Development, Okara proceeded against the appellant on the charge of willful absence for 79 days for the following periods: 9‑6‑1985 to 13‑6‑1985 24‑6‑1985 to 2‑7‑1985 4‑7‑1985 to 12‑7‑1985 15‑7‑1985 to 8‑9‑1985

3. The appellant was required to come for personal hearing on 7‑9‑1985 but he did not turn up nor submitted any reply. He was removed from service w.e.f. 9‑6‑1985, vide order dated 8‑9‑1985 by the Assistant Director LG & RP Department, Okara. He filed an appeal to the Director Local Government and Rural Development Lahore Division the appellate authority on 13‑10‑1985 which was dismissed on 22‑4‑1986. Hence the present appeal.

4. The learned counsel for the appellant has submitted. (i) that the appellant was not absent. He was on tour or ill. He had submitted a medical certificate issued by the SMO Government Hospital, Pattoki covering the period from 15‑7‑1985 to 2‑9‑1985 and the period from 3‑9‑1985 to 15‑9‑1985. In reply to notice for personal hearing he had submitted in his application dated 3‑9‑1985 that he was ill and requested for postponement till 15‑9‑1985. This application was sent by registered post on 4‑9‑1985. The ex parte action is, therefore, liable to be set aside. (ii)that the impugned order dated 14‑9‑1985 removing the appellant from service w.e.f. 9‑6‑1985 is illegal as no executive order can be given retrospective effect. (iii) that in the case of appellant the Authority is Assistant Director and the Authorised Officer is Project Manager/ Administrative officer as prescribed in the Punjab Local Government and Rural Development Department (Delegation of Powers) Rules, 1982. It was for the Authorised Officer to issue charge‑sheet or show‑cause notice under the E & D Rules. In the instant case the Authority i.e. Assistant Director has used powers of the Authorised Officer as well as Authority which is against the rules. Reliance is placed on the Punjab Service Tribunal Judgment in Case No.854/1252 of 1984.

5. The learned District Attorney on the other hand submitted that the appellant was in the habit of remaining on leave without pay. During a total of three years service he availed of following extra ordinary leave: 120 days 5‑3‑1983 to 2‑7‑1983 60 days??????????????????????? 3‑7‑1983 to 31‑8‑1983 30 days??????????????????????? 1‑9‑1983 to 30‑9‑1983 90 days??????????????????????? 1‑1‑1984 to 30‑3‑1984 ??????????? 31‑3‑1984 to 31‑5‑1984 ??????????????????????? 1‑6‑1984 to 30‑6‑1984 ??????????????????????? 1‑7‑1984 to 31‑7‑1984 ??????????????????????? ??????????? 1‑9‑1984 to 31‑12‑1984. It is further submitted that the personal hearing was fixed for 8‑9‑1985 whereas the requests for postponement and medical certificate were received on 9‑9‑1985. The order of removal from service had been passed before this i.e. 8‑9‑1985. It is further submitted that the defence of the appellant has not beers prejudiced because he was heard by the appellate authority. As regards retrospectiveness of the order of the removal, it is submitted that the defect is curable.

6. We have perused the paper book of the case and given anxious thought to the arguments of the learned counsel for the appellant and the learned District Attorney. We will take up point No.(iii) first. It is admitted fact that according to the Rules the Authority in this case is the Assistant Director and the Authorised Officer is the Project Manager/ Administrative Officer concerned. Further, it is admitted that the Authority i.e. Assistant Director has issued a show‑cause notice and removed the appellant from service, which means the functions of the Authorised Officer and Authority were performed by one person.

7. The Authority and Authorised Officer have been defined in sub‑rule (1)(b) and 1(c) of Rule 2 of the Punjab Civil Servants (E&D) Rules 1975 as follows:‑ (b) AUTHORITY means the Government or an officer or authority designated under these rules. (c) AUTHORISED OFFICER means an officer authorised or designated by Government to perform the functions of an authorised officer under these Rules. Provided that where in the case of a civil servant no authorised officer has been so authorised or designated the authority shall have power to appoint an officer to act as authorised officer in that case: Provided further that in relation to a civil servant the authority may be authorised to act as authorised officer. From reading of the above‑provisions of the Rules, it is clear that Government can confer the powers of Authorised Officer as well as Authority on one officer. The Government can also designate separate officers as Authority and Authorised Officer in respect of a particular civil servant.

8. We are of the considered view that where the Government has appointed the same officer as Authority as well as Authorised Officer in respect of a certain civil servant, both the functions can be performed by the same officer in accordance with the procedure laid down in the said rules. However, where two different officers have been designated as Authority and Authorised Officer in respect of a' certain civil servant then the functions of Authority and Authorised Officer must be performed by them respectively as laid down in the said Rules. The present case falls in the second category because Authority and Authorised Officer in relation to the appellant have been designated at serial No.11 of the Schedule attached to the Punjab Local Government and Rural Development Department (Delegation of Powers) Rules, 1982. The Authority in this case was Assistant Director Local Government and the Authorised Officer was the Project .Manager/ Administrative Officer concerned. In the instant case the Authority should have directed the Authorised Officer to proceed against the' appellant in accordance with the provision of the rule 5(1) of they Punjab Civil Servants (E&D) Rules, 1975. It was the Authorised Officer who was to decide whether enquiry should be conducted against the accused according to rule 6(2) of the said Rules or a show‑cause notice was to be given according to rule 6(3) of the said Rules. In the instant case a show‑cause notice has been issued by the Authority. The provisions of these rules have not been complied with and the order is, therefore, illegal.

9. So far as point No. (ii) is concerned we have noted that the Authority passed the order of imposing major penalty of removal from service on 14‑9‑1985, but the removal has been ordered w.e.f. 9‑6‑1985. We are of the view that the removal from service cannot be ordered with retrospective effect.

10. As regards point No. (i) we will not touch the merits of the case because that will prejudice the mind of the departmental authorities to whom we are remanding the case.

11. The upshot of the above discussion is that the impugned orders dated 14‑9‑1985 and 22‑4‑1986 being illegal are set aside and this case is remanded to the Authority for proceeding against the appellant in accordance with the provisions of law. The departmental authorities shall also decide as to how the period from 9‑6‑1985 to date is to be treated. There is no order as to costs M. Y. H./206/Sr.P?????????????????????????????????????????????????????????????????????????????? Case remanded