1985 PLP 921 (PLC(CS))

MUSHTAK ALI KAZI, (CHAIRMAN).‑The appellant, a Sub‑Divisional Officer, Irrigation, has been compulsorily retired from service by the Chief Engineer Irrigation and he has accordingly preferred this service appeal. The facts in brief are that the appellant was a refugee from U. P. and he was appointed as an Overseer in Irrigation after partition in the Province of Sind. He was then promoted to officiate as S. D.O., non -Gazetted. In the Province of Sind all S. D. Os. were non‑Gazetted till the year 1964 when Government of Sind for the first time brought them in the category of Gazetted Officer, Class‑

11. But it was a condition precedent that such officers should get a clearance from the Public Service Commission. The appellant's case had not been approved by the Public Service Commission,. however, he continued to draw his pay as S.D.O., Gazetted. Later on these classes were abolished and the Sub‑Divisional Officers, Irrigation, were placed in Grade‑

16. The appellant was posted as Sub‑Divisional Officer, Taunsa Sub‑Division, Despatch Observation Cell. From there on 22nd April, 1975 he left for his home town, Karachi and submitted application for leave on medical grounds with a medical certificate of a private practitioner. Official letter refusing leave was sent to the appellant by registered post on his residential address at Karachi. In fact, three letters had been sent on three separate residential addresses at korangi, Nazimabad and Pakistan Quarters, Lawrence Road, but all these letters were received back undelivered. The appellant continued to remain absent until 2nd March 1976, when the Chief Engineer, Irriga tion, Sukkur, issued a show‑cause, notice against him and sent it by registered post on his Karachi address. The appellant replied to the show -cause notice and stated that he had proceeded no medical leave due to ill‑health and he was sending leave applications with proper medial 'certificates regularly and if no action was taken and the leave was not granted, he could not be held liable for having absconded. That he was suffering from high blood pressure and diabetes as duly certified by the Medical Officer, J.P.M.C., Karachi. The record, however, shows that the certificates from the private medical practitioners alone were submitted. Therefore, by an order dated 21st June, 1976, the Chief Engineer, Irriga tion, Sukkur, found the appellant guilty of gross misconduct under the Sind Civil Servants (Efficiency anti Discipline) Rules, 1973 and awarded the penalty of compulsory retirement from Government service from 22nd April, 1975. The appellant preferred a departmental appeal to the Additional Chief Secretary, Irrigation and thereafter filed his service appeal' before the Tribunal on 26th October, 1976. The contentions of the appellant before the Service Tribunal were that since he was a Gazetted, Class‑II Officer the Chief Engineer had no authority to pass orders compulsorily retiring him from service and secondly that he had been allowed the option of being heard in person, but the concerned official before whom he was to appear refused to see him. The Tribunal found that, although, the appellant was drawing his pay as S.D.O., Gazetted, Class‑II, he was not designated as such by the Govern ment of Sind. The Tribunal also found that under the Efficiency and Discipline Rules.. no personal hearing was required to be given to the appellant. Against this judgment the appellant preferred an appeal before the Supreme Court being Civil Appeal No. K‑255 of 1979. It came up for hearing before Mr. Justice Muhammad Afzal Zullah and Mr. Justice Abdul Qadir Shaikh. The appeal was accepted on the short ground that the matter of personal hearing could not be denied to the appellant without sufficient cause and he was clearly deprived of the opportunity to show cause that the allegations against him were without foundation. The proceedings against the appellant were merely remitted to the Authorised Officer for proceeding afresh under sub‑rule (3) or rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. The Authorised Officer was; to hear the appeal in respect of the charges framed against him and he was then to submit his case to the appropriate authority for final orders in the light of the submissions made by the appellant. This Judgment was delivered on 3rd September, 1980. As a result of the above judgment the Chief Engineer, Irrigation, Sukkur, as the Authorised Officer cancelled the order of compulsory retirement of the appellant and reinstated him in service with effect from the date of his order viz., 23rd June, 1981. On reinstatement in service the appellant was posted as Sub‑Divisional Officer, Taunsa Sub Division of Despatch Observation Cell. The appellant, however, could not be served with these orders sent to him by registered post as they were received back undelivered. The notice was published in the newspapers refusing leave on medical grounds and he was served with a final notice by publication for compliance of his posting orders. It was then stated that it was not considered necessary to serve the appellant with a fresh show- cause notice under the Efficiency and Discipline Rules, but the appellant was asked to appear for personal hearing before the Chief Engineer on 2nd April, 1983 at Sukkur. The appellant was later on heard in person at Karachi by the Chief Engineer on 2nd June, 1983 and thereafter on 16th August, 1983; the Chief Engineer, Irrigation, also acting as the Authority passed the fresh order retiring the appellant compulsorily with immediate effect. From the above history of the case it becomes clear that the directions of the Supreme Court in the Appellate Judgment were not followed when a subsequent order of compulsory retirement was passed. It was clearly stated in the Supreme Court judgment that the proceedings were to be taken afresh and the charges against the appellant were to be considered in the light of personal explanation offered by him. The authorised officer was then to submit the case with his report to the authority. What has been done in this case is that the fresh show‑cause notice has been dispensed with and after the personal hearing allowed to the appellant the same officer, i.e., the Chief Engineer, Irrigation, has passed orders himself for compulsory retirement. It is well‑established rule that the orders regarding major penalty are to be passed by the "Authority" and not the "Authorised Officer". The Authority as a rule is the appointing authority for officers of that grade. The appointing authority for Grade‑16 officers under the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, is the Secretary concerned. The final orders in this case should, therefore, have been passed by the Secretary, Irrigation and Power. There is, however, no apparent reason for violation of the rules and disregarding the express directions of the Supreme Court. The Chief Engineer, Irrigation, who is not Secretary, Irrigation and Power has acted as the Authorised Officer as well as the Authority just because the Secretary, Irrigation was reluctant to exercise his powers and assume responsibility as the Authority. The final order passed in this case, therefore, suffers from an important legal defect that it was passed without jurisdiction. As such, the order is to be considered as void and without authority. The order of compulsory retirement would also be void for the reason that it has been passed with retrospective effect. The case of the appellant appears to be peculiar one. As a patient of high blood pressure and diabetes, he found it difficult to stay at Taunsa in Dera Ghazi Khan where no medical treatment was available to him. He accordingly came and submitted application for leave on medical grounds with a medical certificate from private practitioner. Under the rules leave on medical grounds cannot be refused. The Chief Engineer, Irrigation, could, however, arrange for examination of the appellant by a Medical Board, but this was presumably not done. As a matter of prestige the Chief Engineer insisted that the appellant should resume duties at Taunsa and he accordingly took action against him under the Efficiency and Discipline Rules. Even after his reinstatement under directions of Supreme Court his place of posting was not changed. The appellant being allergic to that place it seems avoided to resume duty and the fresh orders were, therefore, passed awarding him the same penalty. The case is of 1975 and 10 years have since elapsed. It would be inhuman to remand the case again for a fresh enquiry in respect of the same cause of action. We accordingly set aside the order of compulsory retirement and direct that the appellant may be reinstated in service with immediate effect. Further, under section 18 (proviso) of the Sind Civil Servants Act, 1973, we direct that the interven ing period from 22nd April, 1975 to the date of this order may be treated as leave actually due to him on medical grounds and the remaining period may be treated as extraordinary leave without pay. His arrears may be calculated on that basis. The appeal is allowed in terms of the above order. Parties will bear their own cost. A. E. Appeal allowed.