1993 PLP (C (PLC(CS))

"You were transferred from SSD‑Baghbanpura, Lahore Region to ITC/SSD‑Kala Shah Kaku, Shahdara Region and were relieved from duty w.e.f. 11‑6‑1990 vide Office Order No. SSLE/Estt/Med/90/482, dated 11‑6‑1990, but you failed to report for duty at the said place of posting till date; flouting the orders of the authority and absenting yourself from duty un-authorisedly, which is gross misconduct." It is alleged that he gave no reply to this show‑cause notice. Another show‑cause notice dated 21‑7‑1990 was, therefore, issued to him with the following allegations:‑ "You were transferred from SSD‑Baghbanpura, Lahore Region to ITC/SSD‑Kala Shah Kaku, Shahdara Region and were relieved of your duties on 11‑6‑1990 to report for duty at the said place of posting by 12‑6‑1990. You failed to do so and as such a show‑cause notice was served upon you vide this office letter No. SS.MP. 1(236)/77/6489, dated 23‑6‑1990. You flouted the orders of the authority and failed to submit written reply to the abovesaid show‑cause notice, and absented yourself from duty till date." It appears that the petitioner reported for duty on 21‑7‑1990 and submitted an application stating therein that he was on casual leave from 4‑6‑1990 to 7‑6‑1990 and thereafter he fell sick and could not attend the office about which he informed Senior Medical Officer, Lahore Region. He accordingly requested for the grant of leave from 8‑6‑1990 to 20‑7‑1990. With this application, he also appended Medical Certificates for the period 8‑6‑1990 to 15‑6‑1990 and 16‑6‑1990 to 20‑7‑1990. The certificates were issued by the Medical Officer, Rural Health Centre, Raja Jang, Kasur. Respondents authorities inquired from the Senior Medical Officer whether the petitioner was on casual leave from 4‑6‑1990 to 7‑6‑1991. The latter informed the Departmental Authorities that no casual leave was granted to the petitioner for the period in question. Petitioner submitted his reply to the show‑cause notice dated 21‑7‑1990 on 1‑9‑1990. On 5‑1‑1991; it was decided by the Authorities to proceed against the petitioner for his wilful and unauthorised absence from duty w.e.f. 4‑6‑1990 to 20‑7‑1990 and it was proposed that the petitioner should be formally charge‑sheeted and proper enquiry be initiated. Petitioner approached the Minister for Labour/Chairman, Governing Body, PESSI on 14‑1‑1991 with an application requesting for the grant of ex post facto sanction for 4 days' leave i.e. from 4‑6‑1990 to 7‑6‑1990. On the application, the Minister passed the following orders:‑‑ "Please probe in and put up for orders." While this application was under process, the petitioner moved another application to the Minister on 20‑1‑1991 requesting that "necessary directives may kindly by issued to the department to regularise my leave already applied on medical grounds". The Minister sanctioned the leave "subject to provision of Medical Certificate". Petitioner moved yet another application before the Minister for Labour on 27‑1‑1991 making a grievance therein that the Punjab Employees Social Security Institution has not issued any orders on his application for the grant of leave from 4‑6‑1990 to 20‑7‑1990. He made a request in this application that his leave upto 20‑7‑1990 be regularised to enable him to draw his legitimate dues. This application was also allowed by the Minister on 28‑1‑1991 with the following orders:‑‑ "Leave sanctioned, Medical Certificates are attached." Commissioner, Punjab Employees Social Security Institution submitted a note to the Minister on 20‑2‑1991 pointing out therein that the petitioner had obtained the orders sanctioning his leave by concealing the true facts. It was stated in the note that on being transferred from Baghbanpura to Kala Shah Kaku, petitioner absented himself and he sent application for medical leave but the medical certificates produced by him were not attested by Authorised Medical Attendant. Medical Advisor, PESSI, therefore, recommended that a formal enquiry be held against Dr. Muhammad Bashir under the Punjab Civil Servants (E&D) Rules, 1975 which recommendation was accepted on 6‑1‑1991. It was emphasized in the note that on coming to know that he would be facing a formal enquiry, petitioner had approached the Minister and obtained the leave sanctioning order. Minister was, therefore, requested to reconsider his order-dated 28‑1‑1991. The Minister reconsidered the matter and agreed with the contention of the Commissioner by his order dated 21‑2‑1991. Petitioner then made an application to the Chief Minister on 22‑4‑1991 stating therein that although the leave had been sanctioned by the Minister, he was not being paid salary for the months of June and July, 1990 as well as February and March, 1991. He accordingly requested the Chief Minister, that "necessary directives may kindly be issued to the Department concerned to sanction my leave and release my salary". On this application, the Chief Minister by his order dated 29‑4‑1991 desired that "the leave availed of by Dr. Muhammad Bashir, Medical Officer, PESSI, Shahdra may be sanctioned to him subject to entitlement". Secretary Labour submitted a summary to the Chief Minister pointing out therein that the petitioner had obtained the orders from the Chief Minister by concealing the true facts. It was stated in the summary that the medical certificates produced by the petitioner were not attested by the "Authorised Medical Attendant" and, therefore, formal disciplinary proceedings were to be held against him on account of un authorised absence from duty. It was also pointed out in the summary that the petitioner had earlier moved a similar application to the Minister for Labour and obtained sanction for the leave but on correct facts being brought to the notice of the Minister, he reconsidered his sanction. Chief Minister was also requested to reconsider his order-dated 29‑4‑1991 which had been obtained by the petitioner by misrepresentation and by concealing the true facts. It was further stated in the summary that the Department wanted to proceed against the petitioner on account of this additional misconduct. The Chief Minister agreeing with the views of the Department contained in the summary withdrew his order dated 29‑4‑1991 on 22‑2‑1992. It appears that while the aforementioned summary submitted by the Secretary Labour was still pending with the Chief Minister, an office order (Annex `G') was issued on 3‑2‑1992 according ex post facto approval to the grant of 47 days' earned leave on full pay to the petitioner for the period from 4‑6‑1990 to 20‑7‑1990 (both days inclusive) on medical grounds. Yet another office order (Annex. `H') was issued on 23‑2‑1992 dropping the disciplinary proceedings initiated against the petitioner vide show‑cause notices dated 23‑6‑1990 and 21‑7‑1990. Both these office orders were later withdrawn vide two office orders dated 15/16‑3‑1992 (Annexures `I' and `J'). Feeling aggrieved with the orders Annexs. `I' and `J', the petitioner has assailed them through this Constitutional petition praying that the impugned office orders may kindly be declared to be without lawful authority. I have heard the learned counsel for the petitioner as also the learned counsel appearing for respondent No. 4 at the limine stage and have also perused the record produced by the respondents. The factual position narrated hereinabove is borne out from the departmental record. Learned counsel for the petitioner, however, questioned the validity of the impugned orders mainly on the ground that the order dated 3‑2‑1992 (granting 47 days' leave to the petitioner) and the order dated 23‑2‑1992 (dropping the disciplinary proceedings) passed by the competent authority having taken effect, it was not available to the departmental authorities to withdraw the same. Learned counsel also contended that the impugned orders were passed at the back of the petitioner and without any notice to him and the authority issuing the orders gave no reason therefore. In support of his first contention, learned counsel relied upon Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) wherein it was held that locus poenitentiae is no doubt available to the Government or relevant authorities but once an order has taken legal affect and created certain rights in favour of any individual, it cannot be withdrawn or rescinded. Learned counsel appearing for respondent No. 4, on the other hand, explained that the orders Annexs. `G' and `H' (approving the grant of leave to the petitioner and dropping the disciplinary proceedings) were passed to give effect to the orders of the Chief Minister dated 24‑4‑1991 whereby he had directed that the leave availed of by the petitioner be sanctioned to him but when the Chief Minister withdrew his order dated 29‑4‑1991, the Departmental Authorities issued impugned orders withdrawing the orders Annexs. `G' and `H' which were based on the order of the Chief Minister dated 29‑4‑1991. It was pointed out by the learned counsel for respondent No. 4 that the order of the Chief Minister dated 22‑2‑1992 was received by the departmental authorities after they had issued the impugned order dated 23‑2‑1991 (Annex. `H'). In view of the position explained by the learned counsel for respondent No.4 which is borne out from the record, the respondent‑authorities were perfectly justified in withdrawing the orders Annexs.` G' and `H'. The principle of locus poenitentiae invoked by the learned counsel for the petitioner is not attracted to a situation like this. Reference may usefully be made to a Supreme Court judgment reported in PLD 1992 SC 207 "The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin". It was held therein that "locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade‑11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case". In the instant case, the order of the Chief Minister on the basis of which grant of leave to the petitioner was sanctioned vide Annex. `G' and disciplinary proceedings against him dropped vide Annex. `H' having been withdrawn by the Chief Minister himself, orders Annexs. `G' and `H' have been rightly withdrawn by the competent Authority. In the facts and circumstances of the case, petitioner cannot make any legitimate grievance against the impugned orders on any ground whatsoever. In view of what has been said above, the impugned orders are not open to any exception moreso in writ jurisdiction. This petition is, therefore, dismissed in limine. H.B.T./M‑1029/L Petition dismissed.