1996 PLP 1904 (SCMR)

SAJJAD ALI SHAH, C.J.

This appeal with leave of the Court is directed against the judgment dated 9th October, 1991 of the N.-W. F: P. Service Tribunal, Peshawar, whereby the service appeal of the respondent was allowed with modification in the order impugned therein to the extent that the period of absence from duty of the respondent was directed to be treated as leave on medical grounds as contemplated under the Rules and order reducing the respondent's pay to the minimum of his pay scale, i.e. Rs.625, was set aside and appellants directed to restore pay of the respondent as he was drawing before passing of the order impugned in the service appeal. 2. ' Briefly stated the relevant facts giving rise to this appeal are that the respondent was working as Forest Guard in the Forest Department. He was transferred from Batagram to Shergarh Water-Shed Rangc. After relinquishing the charge, he fell ill and applied for leave on medical grounds. Divisional Forest Officer took action under the provisions of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 and imposed major penalty of removing him from service vide order No. 47 dated 3rd November. 1988. Respondent filed appeal before the Conservator of Forests, Water-Shed Management Project Abbottabad, who passed order of his reinstatement with direction or reduction of his pay to the minimum of the pay scale. Respondent filed another appeal before the Chief Conservator of Forests, N.W.F.P. which was rejected. Feeling aggrieved, the respondent filed the service appeal before the Tribunal which has been allowed in the terms stated above.

3. Before commencement of hearing in this Court, it was found that the respondent was not present. Hence, inquiry was made to ascertain from the record as to whether he had been served or not. It appears from the record that seven notices had been sent to him and the last one was issued by the office on 23rd January, 1995 for hearing on 31st January, 1995. Learned counsel for the appellant department has informed the Court that the respondent has retired from the service and is getting pension in accordance with the judgment of the Service Tribunal and that is why probably he is not interested in contesting this appeal and is not present. Learned counsel assailed the judgment of the Service Tribunal and defended vigorously the order of punishment of reduction of pay to the minimum of the pay scale on the ground that inquiry- was held as permitted under the provisions of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 against the respondent for his wilful absence from duty for more than two months and he did not join the proceedings wilfully and deliberately. Nor did he appear before the Medical officer as directed and he had protested against his transfer.

4. Department took the stand before the Service Tribunal that the respondent after relinquishing the charge at Batagram, after his transfer, did not report at the place of his new posting but applied for leave on medical grounds and submitted a medical certificate which was received late after expiry of leave applied for. That in the circumstances, Mr. Sultan Muhammad, Assistant, was appointed as authorized officer to initiate disciplinary proceedings against the respondent for his wilful absence. That in spite of service of notice, he did not attend the proceedings and consequently the Authorized Officer had recommended major penalty. That during the process of inquiry the respondent sent medical certificate and he was referred to the Director Health Services, who directed the Medical Superintendent, District Headquarters, Abbottabad for medical examination of the respondent on 21st September, 1988 but the respondent did not appear. Objection was also taken by the appellants that the second appeal by the respondent before Chief Conservator of Forests was not competent.

5. It appears that the respondent filed first departmental representation to the Conservator of Forests, Water-Shed Management Project, against the order of the Divisional Forest Officer, which was allowed and order of removal from service was set aside resulting in reinstatement of the respondent in service. However, the Conservator of Forests imposed penalty by reducing pay of the respondent to the minimum of the pay scale and treated his period of absence from 7th July, 1988 to the date of joining on reinstatement as leave without pay, which was a fresh order. Hence, the respondent had right to make fresh representation and his service appeal was competently filed. It also appears that an Assistant was appointed as Authorized Officer who himself conducted the enquiry which should have been done by some one else not by himself. After finalisation of the enquiry, the department waited for the outcome of the medical examination. Respondent took up the plea that for medical examination he received a registered letter very late and for that reason he could not appear in the hospital for medical check up. The Service Tribunal has taken the view that the Chief Conservator of Forests should have applied his mind to the case before rejecting the departmental representation and medical certificates issued in favour of the respondent should not have been rejected outrightly without valid grounds. Respondent took up the plea that he remained ill for which he submitted leave application alongwith medical certificate and had given explanation that he could not appear for medical examination at the hospital as he received the registered letter very late after expiry of the date. In the show cause notice received by the respondent, there was no mention of the medical leave although he had applied for leave on medical grounds. Contention was raised before the Service Tribunal that an Assistant of the Officer of BPS-11 could not be appointed as Authorized officer in any departmental inquiry and secondly that Authorized Officer could not conduct inquiry himself.

6. We are satisfied with the reasons assigned by the Service Tribunal for arriving at the conclusions which are mentioned in detail in the impugned judgment. No interference is called for and this appeal is dismissed as it is devoid of merits. A.A./E-159/S Appeal dismissed.