2007 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Saeed Akhtar Butt was a stenographer in the Railway Headquarters, Lahore. He was charge-sheeted on 2-11-2000 under the Removal from Service (Special Powers) Ordinance, 2000. Following charges were levelled against him: "(1) While working as Steno to XEN/General, you remained absent from duty from 2-8-1981 to 3-9-1991. (2) You managed to have the above said period decided as LHP/LWP by producing a medical certificate from Dr. Muhammad Yousaf Ch., Senior Medical Officer/Government Mental Hospital, Lahore dated 3-9-1989 which indicates that you remained under his treatment from 25-11-1981 to 3-9-1989. (3) You have been issued Passport No.B-276102 at Jeddah on 19-8-1985 on which you visited different countries. You had not obtained NOC for issuance of Passport, (4) From the above, it is evident that you were not facing any disease and did not remain under the treatment of Dr. Muhammad Yousaf Ch., Senior Medical Officer/Government Mental Hospital, Lahore.

2. The disciplinary proceedings resulted into appellant's dismissal from service vide order, dated 30-3-2001. His departmental appeal dated 14-4-2001 was rejected on 18-6-2001. It is prayed by him in his present appeal that the impugned order of dismissal and order of the Departmental Appellate Authority be set aside and he be reinstated into service with back benefits.

3. The appeal is resisted by the respondents. It is stated that the Authorized Officer had ordered an inquiry against the appellant and since in the inquiry the charges were proved, therefore, he was dismissed from service after fulfilling all the legal requirements.

4. Today we have heard the learned counsel for the parties and have also perused the record.

5. The learned counsel for the appellant has vehemently argued that on the same charges an action was taken against the appellant which had resulted into an order dated 28-9-1991, therefore, in the presence of that order the present proceedings could not be initiated against him. The contention of the learned counsel is that the present proceedings are barred by Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973. He has relied on 2004 PLC (C.S.) 1517 and 1995 PLC (C.S.)

349. In both these rulings it was held that no person could be prosecuted or punished for the same offence more than once. We have perused the rulings relied upon by the learned counsel for the appellant and uphold his argument so far as it relates to the charges of remaining absent from duty and production of medical certificates. Since the service of the appellant for the period of his alleged absence was regularized by the respondents vide order, dated 28-9-1991, therefore, the charges Nos.1, 2 and 4 mentioned above, could not be levelled against him on the principle of `double jeopardy'. However, charge No.3 is totally different. This charge was not framed in the earlier proceedings against the appellant. The respondents were thus fully competent to take appropriate action against the appellant on this charge. The appellant has not denied having gone to Jeddah and obtaining a passport from there. His defence is that he was unaware of the rules pertaining to "NOC" for visit abroad. Ignorance of law and. rules is not good defence in disciplinary proceedings. If other employees had committed same irregularity it did not justify the commission of the same irregularity by the appellant. A serious misconduct was committed by him when he left Pakistan, while in service, without obtaining NOC. On charge No.3 penalty imposed upon the appellant does not suffer from any legal error.

6. The next submission of the learned counsel for the appellant is that the impugned proceedings had been initiated against the appellant on a direction issued by the Minister for Railways that the appellant be dismissed from service for presenting false certificates for obtaining duty. We agree with the learned counsel that Minister for Railways could not order the dismissal of the appellant from service. He could at the most recommend disciplinary action against the appellant. He was not competent to direct the respondents to dismiss the appellant from service. The direction issued by the Minister is, therefore, held to be without lawful authority. But our this observation is of no help to the appellant since it is established on record that he had left Pakistan without obtaining NOC. The respondents had not passed any mechanical order on the basis of the direction of the Minister but had passed the impugned order after observing all the legal formalities. A specific charge was framed against the appellant and he was given an opportunity to defend himself. The appellant was not able to defend that charge in the disciplinary proceedings and he has not defended that charge even today before us. As held above, a serious misconduct was committed by the appellant in leaving the country without NOC while in service of the respondents.

7. For the above reasons we hold that penalty of dismissal from service was imposed upon the appellant strictly in accordance with the rules/Removal from Service (Special Powers) Ordinance, 2000 on the basis of charge No.3. We see no illegality in the impugned proceedings as so far as this charge is concerned. The result is that the appeal is dismissed.

8. No order as to costs. Parties be informed. H.B.T./146/FST Appeal dismissed.