1984 PLP (C (PLC)

Masud Ahmad Riaz for Appellant. A. G. Humayun, District Attorney for Respondents. Zafarul Hassan has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary (S & R), Government of the Punjab, Board of Revenue (S & R) Wing, Punjab, Lahore, and Member, Board of Revenue, (S & R), Board of Revenue, Punjab, Lahore, as Respondents.

2. By virtue of this appeal, the appellant has prayed that the impugned orders, dated 13th May, 1982/27tb May, 1982 and final order, dated 17th August, 1982, be set aside and the appellant be re‑instated in service, w. e. f. 7th August, 1981, with full back benefits of Pay and Allowances etc.

3. Brief facts of case are that the appellant had been serving as Junior Clerk under the respondents. He was transferred to Attock in the year 1981. Instead of complying with the orders of the respondents, the appellant applied for cancellation of transfer order vide his applica tion, dated 10th December, 1981. In the meanwhile the appellant fell ill and applied for leave on medical ground, which was not acceded to by ;he respondents. The appellant was charge‑sheeted and was served with the charge‑sheet and statement of allegations vide order, dated 13th January, 1982, of Kh. Abdul Sattar, Authorised Officer, Board of Revenue (S & R) Punjab, Lahore. Chaudhry Barkat Ali, A. A. O., Hqr's Office, Lahore, was appointed as Enquiry Officer. The inquiry proceedings were conducted against the appellant but he did not care to make himself present before the Enquiry Officer and to associate with the proceedings in spite of the fact that he was informed through the notice sent through registered A. D. which he refused to receive the same. A notice was published in the Press by the Enquiry Officer on which the appellant presented himself before the Enquiry Officer on 8th March, 1982 by taking a stand that he was sick and the appellant went to the Services Hospital, Lahore, for medical check‑up, but they refused to advise him unless an official letter was issued by the respondents to the Medical Superintendent, Services Hospital, Lahore, for medical check‑up. Accord ingly a letter dated 9th March, 1982, was issued to the Medical Super intendent, Services Hospital, Lahore, by the Enquiry Officer for medical check‑up of the appellant and issuing of a certificate that he was sick and unable to attend the duties. The Enquiry Officer did not receive any response either from the Medical Superintendent, Services Hospital, Lahore or from the appellant who did not appear before him again to put up his defence in support of his sickness. In these circumstances, the Enquiry officer completed his Inquiry Report and submitted to ‑the Authorised Officer; who in turn, submitted his recommendations to the Authority for taking proper action against the appellant. On receipt of recommenda tions of the Authorised Officer, the Authority viz. Secretary (S & R) Board of Revenue, Punjab, Lahore, summoned the appellant for personal hearing on 12th May, 1982, through a registered A. D. letter which the appellant refused to acknowledge the same. Consequently the Autho rity decided to issue the impugned order, dated 27th May, 1982, through which the appellant was removed from service, w. e. f. 7th December, 1981. The appellant filed an appeal before respondent No. 2, who rejected the same vide his order, dated 17th August, 1982. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant was a sick person and as certi ficates endorsing his sickness were issued by the Medical Prac titioner, these should have been accepted and he should have been allowed leave on medical grounds under the Leave Rules. Later on the appellant did appear before the Medical Superinten dent, Services Hospital, Lahore, who examined the appellant and pro mised to send a certificate to the respondents which must have been sup plied to them. It appears that the respondents did not care to honour the same and without taking into consideration of the fact that the appel lant was a sick person, his services were terminated without any justifica tion. It has been further submitted by the learned counsel for the appel lant that this all happened due to the reasons because the appellant was proceeded ex parse. Had the appellant been given an opportunity to participate in the inquiry proceedings and to put up his defence the matter would have been decided quite differently. The appellant was not provided with a copy of the inquiry report and thus the Authorised Officer had concluded his recommendations without considering his reply/defence. The appellant was not even heard in person and as such the ex parte pro ceedings have prejudiced him in the matter. While concluding his argu‑ ments, the learned counsel for the appellant has further contended that the proceedings against the appellant are not only unlawful but also unjustified as be could not be refused leave under the Leave Rules on medical grounds as such the impugned orders be quashed and set aside.

5. Controverting the arguments of the learned counsel for the appel lant, it has been submitted by Ch. Nazir Abroad, Advocate, on behalf of respondents that the correct facts of the case have not been placed before the Tribunal by the learned counsel for the appellant. The appellant was transferred to Attock. He did not obey the transfer orders and pretended to be a sick person. Thus, he was a maling erer and did not join at his new place of posting deliberately. He refused to acknowledge the letters served on him by the Enquiry Officer for making himself present before him for the inquiry proceedings. Ultimately, the Enquiry Officer had to issue a notice through a Press asking the appellant to put up his defence if any. On this the appellant appeared before the Enquiry Officer on 8th March. 1982 and submitted an application that he went to the Services Hospital Lahore, for medical check‑up but they refused to check him and advised to get and produce official letter for the purpose. Accordingly a letter, dated 9tb March, 1982, was issued to the Medical Superintendent, Services Hospital, Lahore, by the Enquiry Officer, requesting him to cons titute a Medical Board and to examine the official as to whether he was actually sick or not. A photostat copy of this letter was also given to the appellant on 14th March, 1982, for doing the needful. In spite of all this, the appellant did not bother to produce a medical certificate to the Enquiry Officer or to join again the inquiry proceedings. Under the cir cumstances, there was no alternative left with the Enquiry Officer but to conclude his findings and submitted the same to the Authorised Officer. It is on the record that the Authority sent him a notice for personal hear ing but the same was received back with the remarks that the appellant had refused to receive the same. Thus the appellant was provided full opportunities to defend himself at all stages, but as the appellant was not interested and intentionally avoided to join his new place of posting, he did not associate in the proceedings. It was further submitted by the learned counsel for the respondents, as the appellant did not produce any medical certificate, nor any certificate was sent by the Medical Superin tendent to the respondents, so it was rightly concluded by the respon dents that he was a malingerer, not a sick person and had absented himself wilfully. As such, the action of the Authority is lawful and fully justified.

6. I have given my anxious thought to the arguments of the parties and have perused the entire record of this case very carefully.

7. The record shows that the appellant was avoiding to receive the letters issued by the Enquiry Officer. Consequently a notice had to be got issued by the Enquiry Officer in the Press. In response to this notice, the appellant appeared before the Enquiry Officer on 8th March, 1982 A letter was issued to the Medical Superintendent, Services Hospital, Lahore, by the Enquiry Officer on 9th March, 1982 for examination of the appellant by a Medical Board for medical check‑up to certify his sickness. A photo copy of the said letter was also given to the appellant on 14th March, 1982, by the Enquiry Officer. But neither the appellant did inform the Enquiry Officer the result of his medical check‑up by the Medical Superintendent, Services Hospital, Lahore, nor any intimation was given to the Enquiry Officer by the said Medical Superintendent as requested. At the time of arguing this case, a stand has been taken by the learned counsel for the appellant that the appellant was examined by the Medical Superintendent, who certified his sickness; but no solid proof of this fact has been produced by the appellant or his counsel and nothing is available on the record of the respondents to certify the same. The appellant also adopted a negative attitude for not appearing before the Authority for personal hearing to put up his defence and he is at fault. However, I feel that the Authority should have given the appellant another opportunity of personal hearing on the principle of audi alteram partem (no person will be condemned unheard) so that the appellant could have been heard in person to prove his innocence, before passing the impugned order of his removal from service.

8. Keeping in view the above analysis, the impugned orders are set aside. The case is remanded to the Secretary (S & R), Board of Revenue, Punjab, Lahore, the Authority, to afford an opportunity of personal bear ing to the appellant to prove his innocence or otherwise. The appellant be also provided with a copy of Inquiry Report to put up his defence. It is further, directed that the appellant be re‑instated in service to bestow upon him the status of a civil servant to enable the Authority td proceed against him. The fate of the period for which the appellant remained out of service will also be decided by the Authorities after personal hearing of the appellant. There will be no order as to costs. M. Y. M, Appeal accepted.