1988 PLP (C (PLC(CS))

The relevant facts for the decision of the present appeal are that the appellant was serving as Instructor (Physics) in the Board of Technical Education Punjab, Lahore. The services of the appellant were. borrowed by the Government of the Nigeria and the arrangement was approved by the respondent No.l. The appellant proceeded on deputation to Nigeria on 1-9-1978. The period of deputation was initially for two years and the same was extended from time to time upto 31-8-1982 vide letter dated 21-11-1982. It was however, made clear in the Notification, dated 16-1-1983, that no further extension shall be granted. The relevant portion of the Notification reads as under:- "The Governor of the Punjab is pleased to allow extension in deputation abroad of Mr. Muhammad Altaf Malik, Instructor, Government College of Technology, Rawalpindi to work with Government of Nigeria for a further period of two years i.e., upto 3-8-1982. 2.The Governor of the Punjab is further pleased to order that no extension in deputation abroad beyond the said date shall be granted."

2. The appellant, in spite of this clear note of caution, did not resume duty on 1-9-1982 but instead he resumed duty on 3-7-1984. This way, the appellant absented himself from duty for a period of two years. The respondent No.3 decided to initiate disciplinary proceedings against the appellant accordingly. The appellant was served with a. charge-sheet dated 10-12-1984 with statement of allegations. The appellant took up the plea that as he was relieved by the Nigerian Government only on 24-6-1984, therefore, he could not report for duty earlier. It is maintained by the appellant that he moved for the extension of his deputation period in time but the Government failed to decide and to communicate the decision in time. The explanation rendered by the appellant did not find favour with the respondent No.2, who vide order dated 22-4-1985 decided to impose the penalty of forfeiture of two increments permanently. The appellant aggrieved by the order of the respondent No.2 proceeded to file a departmental appeal but since the same was not decided within 90 days, therefore,, the appellant decided to move this Tribunal within next thirty days. The appeal was admitted for hearing on 26-10-1985. The respondent No.2 has contested the same, filed parawise comments and prayed for the dismissal of the .appeal. I have heard the learned counsel for the appellant as well as learned District Attorney and gone through the record.

3. The learned counsel for the appellant in support of the appeal made the following submissions:- (i) That since the Nigerian Government did not relieve him, therefore, he could not resume the duty with the respondent No.2; (ii) The Government is responsible for in action in not deciding his applications, made from time to time for extension of his deputation period, promptly: and (iii) It was submitted that the respondent No.l in the impugned order imposed the penalty of withholding of two increments permanently. This was illegal. The said respondent after going through the departmental appeal illegally omitted the words permanently and further added the increments for the years 1982 and 1983. The learned counsel for the appellant further added that during pendency of the present appeal the respondent No.l has issued another Notification substituting the original two Notifications. This resulted in substitution of para No.5 of the Notification and through this the respondent No.l has withheld the increments for the years 1985 and 1986.

4. On the other hand, the learned District Attorney has argued that the appellant had been seeking extension from year to year. It is added that the appellant could have very much refused to enter into any further agreement with the Nigerian Government after the expiry of his deputation period, but on the other hand he had readily been signing the new agreement every year.

5. In the reply to the second point, it is submitted that it was the duty of the appellant to apply for the extension of deputation well in time and when extension was not granted he should have reported for duty.

6. I have considered the arguments of both the sides on these points and I cannot avoid the impression that the respondents are responsible if not wholly but at least to some extent for the so-called unauthorised absence of the appellant. The original period of deputation expired in the year 1980 but the respondent extended the same from time to time upto 31-8-1982. This approval was conveyed to the appellant through letter, dated 20-11-1982 whereby the appellant was informed that no further extension shall be granted in his deputation abroad beyond 31-8-1982. It is, therefore, clear that the appellant was informed of the decision about three months after the expiry of the deputation period whereas the Notification was issued in January 1985. The respondent No.l should adopt a uniform policy in this behalf and the cases should be decided expeditiously because delay not only embarrasses the position of the Civil Servant concerned but also bring a bad name to the Government not only within the country but also abroad. Anyhow the baffling and unconscious delay on behalf of the Government to decide the request of the appellant does not absolve the appellant of his obligations. He could not have entered into further contract abroad without first getting the decision of his own Government The penalty imposed is neither harsh nor out of proportion because even after receipt of a big NO the appellant still entered into afresh agreement for the year 1983.

7. In the end it was argued that the respondent No.l firstly passed the impugned order dated 22-4-1985 and then substituted para No.5 of the same during the pendency of the appeal. On the other hand the learned District Attorney has maintained that since an illegality had crept in the impugned order, therefore, the respondent No.1 corrected the same.

8. I have considered the arguments of both sides. There is no quarrel with the proposition that impugned order was twice amended by the respondent No.l and that too without notice to or the knowledge of or intimation to the appellant. It is, also, true that the illegality was corrected but I must observe that this was done in a most illegal and objectionable manner. The respondent No.l was fully aware of the pendency of this appeal, therefore, he should have awaited for the result.

9. Secondly if the Government functionaries are allowed to change/ amend or modify their orders as has been done in the present case then any one can substitute the order whenever he liked. The possibility of a mala fide change in the order cannot be ruled out, therefore, this practice cannot be approved.

10. Now coming to the legality of the permanently withholding the increment of the appellant. Since the respondent has illegally amended, substituted and altered the order the substitution made on 22-4-1985 and 15-1-1986 is held illegal, without jurisdiction and of no legal effect. The net result is that the order dated 22-4-1985 shall stand as it is for purposes of decision of this appeal. This order cannot be upheld because the respondent No.l had no authority or jurisdiction to permanently withhold the increment. The relevant portion of Rule 4 of the Punjab Civil Servant (E & D) Rules, 1975 reads as under:- "4. (a)(ii) withholding, for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post."

11. The authorities while dealing with any matter should check up their authority and the extent of exercising the same which will not only save the authority from being put in an embarrassing position but also help the Government to save unnecessary expenses and wastage of time. This is high time that Government should issue a note of caution directing the civil servants to act in accordance with the law otherwise they should be dealt with for misconduct and inefficiency.

12. The learned counsel for the appellant has also referred to case of Mubarik Ahmad D4alik end 4 others v. Federation of Pakistan and two others reported as 1980 P L C (C.S.) 418 in support of the contention that the impugned order could not have been revised and that too without granting an opportunity of hearing to the appellant. I have gone through the report and I do not find anything to support the proposition canvassed by the learned counsel for the appellant. The proposition is otherwise clear and does not require any precedent.

13. The upshot of this discussion is that the appeal is partly accepted and as a result thereof increments for the years 1984-85 are ordered to be withheld. There is no order as to costs. A.E./152/Sr.P Appeal partly accepted.