2017 PLP 1880 (SCMR)

UMAR ATA BANDIAL, J.

Leave to appeal was granted vide order dated 22.12.2010 in the following terms: "Refers to section 7(f) proviso (ii) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, to contend that the law provides for major penalty of compulsory retirement or removal or dismissal from service only where the period of absence is for more than one year whereas in petitioner's case, the period of absence was only seven days and that too stood explained as petitioner was sick and have tendered a medical certificate issued by the Government Hospital. Having heard petitioner's learned counsel at some length, leave is granted inter alia to consider the issues raised."

2. The appellant was dismissed from service vide order dated 20.06.2007 on account of absence without leave for seven days commencing 12.05.2007 and thereafter again on 07.06.2007. The appellant took up the plea that he was fatigued with over work and upon refusal of his request for leave by the SHO he absented himself from duty on account of his physical condition. Though the procurement of medical certificate by the appellant is admitted in the parawise comments filed by the respondents before the learned Service Tribunal, however, no such document is available on the Court's record. The learned Service Tribunal took into account the 27 prior instances occurring from 1990 until 2007 when the appellant was punished with minor penalties for absenting himself from duty without approval. He was ultimately dismissed from service by the aforementioned order dated 20.06.2007. The competent authority passed the dismissal order after having dispensed with the inquiry required in terms of Section 5 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. ("PEEDA Act, 2006"). The provision of section 5(1)(b)(2) ibid requires reasons to be recorded for such dispensation or for documentary evidence to be available with the department to justify such action. Neither documentary evidence nor reasons are available in the show-cause-notice or in the impugned dismissal order passed against the appellant.

3. The appellant has been subjected to a major penalty terminating his service prematurely. The spirit of the law namely PEEDA Act, 2006 is that such terminal punitive action against a civil servant should be taken after an inquiry has been conducted. In the present case, whether the appellant had a satisfactory explanation for his absence for the period mentioned in the show-cause-notice has not been attended by the respondents. It is a matter upon which an opportunity to record evidence ought to have been granted. Likewise, the availability of documentary evidence, if any, with the respondents that justified dispensation of an inquiry ought to have been disclosed/confronted to the appellant. In the absence thereof, we find that the impugned punishment has been imposed upon the appellant without complying with the provisions of the law.

4. In the circumstances, the impugned order by the learned Tribunal dated 08.12.2009 and the impugned dismissal order by the respondent No.2 dated 20.06.2007 are set aside and the appellant is reinstated in service. However, the respondents shall conduct an inquiry into the allegation of willful absence from duty against the appellant and conclude the same within a period of two months from the date of this judgment. In case the appellant succeeds in making out his defence, the matter of giving him back benefits shall also be decided by the competent authority.

5. This appeal is allowed in the above terms. MWA/M-43/SC Appeal allowed.