2006 PLP 1018 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This single order shall dispose of Civil Petitions Nos. 1,635-L of 2004 and 1805-L of 2004 as both are directed against the same judgment. (2). Leave to appeal is sought against the judgment, dated 31st March, 2004 vide which major penalty of removal from service imposed on Javed Akhtar (petitioner in Civil Petition No.1635-L of 2004) was converted into that of compulsory retirement. In Civil Petition No.1805-L of 2004, the Chief Engineer, Highway Department has challenged the afore-referred order of conversion. (3). Facts in brief are that petitioner was appointed as blacksmith in the Highway Department in the year 1983. After the promulgation of the Punjab Removal from Service (Special Powers) Ordinance, 2000 "(1) You remained absent from Government duty w.e.f. 10-9-2002 to 31-10-2002. (2) You are inefficient in performing your official duty. (3) You do not know your job as blacksmith for which you were recruited." (4) Having received the reply and having granted personal hearing the petitioner vide order, dated 12-6-2003 was awarded major penalty of removal from service. (5) Learned counsel for the petitioner submits that the afore-referred absence could not be classified as a misconduct as admittedly the petitioner had appended the outdoor patient tickets/slips issued by the Government Hospital indicating that he was suffering from ailment which required medication and bed rest. His application was not rejected by the Department and on 6-3-2003, the Sub-Divisional Officer had sent him a letter to resubmit the medical certificate along with endorsement of the concerned Medical Superintendent. This direction was duly complied with but the petitioner did not receive any intimation as to whether his application for leave on medical ground had been allowed or disallowed. With this factual background he contended this absence by no stretch of imagination warranted major penalty. So far as the other allegations i.e. allegations Nos.2 and 3 are concerned no material tenable in law is available on record that he was either "inefficient" or did not know his job as alleged in the charges. Petitioner who was appointed as far back as 1983 and by dint of hard work had earned promotion in the Department. With this service record he could not be dubbed as "inefficient" or that, "you do not know your job" without proper enquiry. (6). Learned Additional Advocate-General defended the impugned judgment and submitted that the concurrent orders are neither arbitrary nor illegal. No question of law of public importance has been raised to warrant interference. (7). Learned counsel for the petitioner in Civil Revision No.1805-L of 2004 filed on behalf of the Chief Engineer seeking restoration of the original penalty i.e. removal from service, submits that there is a letter from the Foreman to the Sub-Divisional Officer that Javed Akhtar the delinquent official did not know his job and that his continuation in service had an adverse effect on the office discipline. This letter is dated 1-11-2002 when admittedly petitioner joined the duty after availing the leave. (8). We have considered the submissions made and have gone through material placed on record by both the sides. (9). The respondent-Highway Department has not placed on record anything to indicate that the application for medical 'leave of the petitioner was ever disallowed and the order was conveyed to the petitioner. In absence of this no adverse presumption or inference could be drawn against petitioner's conduct particularly in view of the fact that medical slips issued by the Government Hospital were duly countersigned by the Medical Superintendent of the said Hospital. So far as the allegation of inefficiency and not knowing his job are concerned, they are conjectures and those are not based on any adverse entry in the Annual Confidential Report or backed by an inquiry carried out by the Department. (10). In the afore-referred circumstances, the impugned judgment cannot be sustained in law. The Petition bearing No.1635-L of 2004 is converted into appeal and allowed, the impugned judgment of the Punjab Service Tribunal as also order of the departmental appellate authority are set aside and petitioner is reinstated into service. In view of the order passed in Civil Petition No.1635-L of 2004, Civil Petition No. 1805-L of 2004 is dismissed as having become infructuous. The period in which petitioner remained out of service shall be treated as leave of the kind due. M.B.A./J-6/SC Appeal allowed.