2007 PLP (C (PLC(CS))

CH. MUHAMMAD ZAFAR IQBAL (MEMBER).

Brief facts of the case are that a Show-Cause Notice 285/PA, dated 24-2-2003 was issued against Mr. Dilshad Hussain, A.S.-I. No.36/S (HC) 737 on the charge that he remained absent from duty vide Daily Diary Entry No.22, dated 28-1-2003 without any leave or prior permission from the competent authority and there is no reference of his return to duty in the show-cause notice but the punishment awarding order evinces that he reported back on duty vide Daily Diary No.4, dated 25-2-2003 after an absence of 27 days .and 13 hours and 10 minutes. The show-cause notice A was issued on 24-2-2003 and he reported back on duty on 25-2-2003. The contents of the show cause do not elaborate the period of absence in totality. Furthermore, the contents of the show-cause notice revealed that the reference to the dispensation of regular inquiry has not been made as contemplated in section 5(4), Punjab Removal from Service (Special Powers) Ordinance, 2000. After getting his reply to the show-cause notice a major penalty of reduction in rank from A.S.-I. to head constable with effect from 19-8-2003 has been slapped on him vide order, dated 21-8-2003.

2. Aggrieved by this order the appellant preferred an appeal before the Appellate Authority respondent No.1/D.I.-G., Sargodha Range, Sargodha on 25-8-2003, resultantly, a chance of personal hearing was afforded to him on 13-5-2004 and the decision of that appeal was announced on20-5-2004. The respondent No.1 as is evident from the order took a lenient view but imposed harsher punishment on the appellant and compulsorily retired him from service. Further aggrieved by this order the appellant resorted to appeal in the Punjab Service Tribunal on 18-6-2004.

3. Learned counsel for the appellant argued that in the guise of the lenient view the Appellate Authority has inflicted a harder punishment on the appellant without issuing a show-cause notice for enhancenient of that punishment as is required under section 9(a) of Punjab Removal from Service (Special Powers) Ordinance, 2000. He further stressed that it is a mandatory provision and should have been observed by the Appellate Authority instead of using his authority arbitrarily and unjudiciously using his official authority whimsically. Basing on this sole argument he prayed for the acceptance of the appeal.

4. I have gone through record on file and have evaluated the contention of the learned counsel in the light of the proviso of the Punjab Removal from Service (Special, Powers) Ordinance, 2000. The original punishment awarding order of the competent authority itself suffers from a legal infirmity, as the regular inquiry has not been dispensed with recording reasons for the same purpose. It is also a mandatory provision under section 5(4). When the regular inquiry has not been dispensed away with through a speaking order despite being having the competence it depicts that it escaped the keener eye of the competent authority. The Appellate Authority while exercising his legally competent authority also allowed the occurring of a legal glitch by not showing cause to enhance the punishment and instead using the word taking a lenient view and enhancing the quantum of punishment without any reference to reinstating the status of A.S.-I. or not, Automatically this punishment has been inflicted on him as a head constable in addition to punishment already awarded. These legal lacunas, technically leaves no option to me but to remit this case of the appellant with a direction that he be prosecuted judiciously, strictly under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, as to be prosecuted judiciously with a touch of fairplay is his vested right being a civil servant as has been observed in many legal precedents by the Honourable apex Court. He is reinstated in the rank of A.S.-I. for the purpose of launching of new disciplinary proceedings under the Punjab Removal from Service (Special Powers) Ordinance, 2000. This appeal is disposed of with the above direction. H.B.T./32/PST???????????????????????????????????????????????????????????????????????? Order accordingly.