1999 PLP (C (PLC(CS))

Muhammad Akram Naveed for Appellant. Muhammad Nawaz Bhatti, Addl. A.‑G. for Respondents. Date of hearing: 10th November, 1998. This petition under Article‑199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 19‑5‑1997 passed by respondent No. l whereby petitioner's three annual increments with cumulative effect were stopped as penalty imposed on the petitioner by the appellate authority.

2. The relevant facts are that the petitioner being a Sanitary Inspector employed with Municipal Corporation, Gujranwala was charge‑sheeted on as many as 21 counts alleging inefficiency, negligence, carelessness and to have committed misconduct in the performance of his duty. He was suspended from the service allegedly in sheer violation of Rule 10(1) (Efficiency and Discipline) Rules, 1981. According to the petitioner all the charges were baseless, unfounded and vexatious and he contested the allegations refuting all the charges. The Authorised Officer ordered inquiry which was conducted by the Enquiry Officer, who expressed his opinion and forwarded the same to the Authorised Officer. The Authorised Officer in turn ordered that the petitioner be compulsorily retired from his service w.e.f. 19‑9‑1996. The petitioner, filed an appeal against the above said order and the appeal auth6ritf/Director Local Government; Gujranwala re‑instated the petitioner in service reducing the penalty to stoppage of three annual increments with cumulative effect and treating the intervening period i.e. from the date of compulsory retirement till the date of rejoining as leave without pay vide his order dated 19‑5‑1997.

3. The above said order has been assailed in the present Constitutional petition‑on the allegations levelled against the petitioner in the charge‑sheet do not come under the purview of in‑efficiency or misconduct as‑ stipulated under sections 3 and 4 of the Efficiency and Discipline Rules, 1981,‑therefore, no penalty could at all be imposed on the petitioner or at-least in the absence of any previous warning, no such penalty could be imposed. In any case, it was submitted that the penalty of stoppage of increments with cumulative effect and treating the intervening period as leave without pay could not be imposed upon the petitioner.

4. Report and parawise comments were called for and have since been filed. ‑ It is maintained by the Director Local Government and Rural Development, Gujranwala Division Gujranwala that the appellate authority had the powers under the Punjab Local Council Servants (E&D) Rules, 1981 to alter the punishment and this was done keeping in view the long service of the petitioner. Excepting for the reply above‑noted, nothing has been said as to whether the increments of the petitioner could be stopped with cumulative effect treating the intervening period as leave without pay. Learned counsel for the petitioner on the other hand relied on "Sardar Ghulam Mahdi v. Province of Punjab through Chief Secretary Lahore (1988 PLC (C.S.) 678), a judgment delivered by the Punjab Service Tribunal in support of the proposition that stoppage of increments with cumulative effect is illegal. In the said judgment the provisions of Rule 4(i) clause (a) (ii) of the Punjab Civil Servants (E&D) Rules, 1975 has been considered to mean that the increments can be withheld for a specified period but not with cumulative effect. Though the judgment afore‑referred is no authority for this Court but in the absence of any counter judgment, the persuasive value of the same cannot be denied. It is, thus, obvious that the penalty of stoppage of three annual increments with cumulative effect could not be imposed on the petitioner nor the intervening period i.e. date of dismissal till the date of rejoining could be treated as leave without pay. As far the plea that the appellate authority could not at all impose any punishment, suffice it to say that it militates with the provisions of rule‑19 pertaining to the appeal whereby the authority has the power to reduce or enhance the penalty imposed by the Authorised Officer and the learned Additional Advocate‑General has very aptly relied on the same, therefore, it could not be successfully maintained that the appellate authority did not have the jurisdiction to alter the punishment.

4. In result this petition is partly accepted, resultantly stoppage of three annual increments of the petitioner with cumulative effect as also treating the intervening period as leave without pay i.e. date of dismissal till the date of rejoining, are declared to be without lawful authority and of no legal effect. There shall, however, be no order as to costs. Q.M.H./S‑308/H Order accordingly.