2008 PLP (C (PLC(CS))

ARSHAD BIN AHMAD (MEMBER-III).

Muhammad Tasleem Shoukat, Ex-Constable, Punjab, Constabulary, Abbas Lines, Lahore while posted in Lahore was issued two show-cause notices, dated 29-7-2005 and 16-9,2005 for wilful absence from duty from 3-7-2005. Since no replies were received, ex parte proceedings were taken under the Punjab Removal from Service (Special Powers) Ordinance, 2000 and the appellant was dismissed vide impugned order, dated 19-10-2005 passed by the respondent No.1. The departmental representation filed by the appellant, dated 10-11-2005 was rejected vide impugned appellate order, dated 9-12-2006 by the Appellate Authority/ respondent No.2.

2. Learned counsel for the appellant contended that, the absence was not wilful and that, the appellant was seriously ill on account of severe backache. It was contended that, the appellant had applied for leave prior to proceeding on leave in anticipation as allowed under the Leave Rules. As proof of his illness he had submitted medical certificates which could have been got verified if the respondents had any doubt. It was further contended that, no regular inquiry was held in the matter and that, ex parte proceedings culminated in the imposition of major penalty of dismissal without considering his appeal. It was also contended that, though the appellant's absence was of lesser duration, two other colleagues namely constables Tariq Ali and Muhammad Asif, who were absent from duty for 165 and 263 days respectively, and were similarly awarded major penalties, were reinstated by the Appellate Authority and their penalties were converted into minor penalties. Thus, a discriminatory treatment was meted out to the appellant. In support, copy of application, dated 3-7-2005 submitted by the appellant for sanction of 30 days leave on the basis of medical certificates issued by a private Medical Centre was shown. Reliance was placed on 2006 SCMR 846, 2006 SCMR 434 and 2006 SCMR 1653.

3. Learned District Attorney relying on the parawise comments of the respondents opposed the contentions raised saying that, absence from duty worked out to 130 days. It was also contended that, medical certificates attached with the appeal were not valid as these were issued by a private practitioner.

4. Heard the parties and perused the record. It was found that, both the show-cause notices were suffering from a grave lacunae in that, no mention of dispensation of regular inquiry was made therein as required by the provisions under section 5 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. It was also found that, the respondents vide original impugned orders, dated 19-10-2005, upheld by the Appellate Authority without any modification, had treated the period of absence as "leave without pay". As held by the honourable apex Court and this Tribunal in various judgments the period of absence treated as leave without pay, amounts to condonation of the absence. The aforesaid legal infirmities are so serious that, these cannot be ignored as these have rendered the impugned orders, ineffective, liable to be set aside.

5. Without going into merits and demerits of the case, in view of the aforesaid legal infirmities, the impugned orders are set aside and appellant is reinstated in service to face fresh proceedings including regular inquiry under the law. The period of absence and that which he spent out of service, shall be decided by the competent authority as an outcome of the fresh proceedings. No orders as to cost. Consigned to record. H.B.T./58/PST Order accordingly.