1984 PLP (C (PLC(CS))

Gul Rehman, ex Cook, Public Health Nursing School, 5‑Montgomery Road, Lahore has made this appeal under section 4 of the Punjab Service Tribunal Act, 1974, wherein he has impleaded the Principal, Public Health Nursing School, 5‑Montgomery Road, Lahore and the Deputy Director, Health Services, Lahore Division, Lahore as respondents.

2. By virtue of this appeal the appellant has prayed that the impug ned orders, dated 20th February, 1982 and 2nd December, 1982 be set aside. He has further prayed that he be declared to be continuing in service without any break and with full back benefits.

3. Brief facts of the case are that the appellant was served with a show‑cause notice, dated 11th February, 1982 under the Punjab Civil Servants (E & D) Rules, 1975 containing nine charges. It has been men tioned in the show‑cause notice that the charges of misconduct against the appellant are so persistent and obvious that it is not necessary to have any enquiry into the matter through an enquiry officer. Thus the appel lant was served with this show‑cause notice under rule 6 (3) of the Punjab Civil Servants (E & D) Rules, 1975. The appellant did not reply to the show‑cause notice. He was, therefore, removed from service vide Prin cipal, Public Health Nursing School, Lahore order, dated 20th February, 1982. The appellant made an appeal to the Deputy Director of Health Services, Lahore Division, Lahore which was rejected vide order, dated 2nd December, 1982. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant was that the appellant selected as a Cook and joined his duties in the year 1969. He has worked as such till September, 1981 when he was temporarily posted as a Chowkidar. The appellant has a good service record for the last 3 years. However, the appellant was served with a show‑cause notice in February, 1982 with the charges which were base less, without any facts and were as a result of his dispute with Mr. Khursheed Ahmad, Head Clerk who was involved in evil activities in the institution. Furthermore, though the appellant had submitted a reply to the show‑cause notice on 14th February, 1982 as per copy attached with the appeal, the same was not considered and the appellant was pro ceeded ex parte. He was also not heard in person. Thus, the appellant had not been provided opportunities to defend himself and he has been prejudiced in the matter. No enquiry was also held to prove the charges against the appellant. The appellant's counsel has further submitted that the appellant has been punished on the charges which were not proved against him, he is innocent in the matter and the impugned orders be set aside being unlawful and void ab initio.

5. Controverting the above arguments, the learned District Attorney assisted with the representative of the Department has relied on the para- wise comments submitted by the Principal, Public Health Nursing School, Lahore, Respondent No.

1. They have also produced a summary of the service record of the appellant from the years 1969 to 1982 at the time of hearing of the case to show that the appellant has a checkered record and he was warned on numerous occasions during the years 1969‑

82. The appellant was also censured and entry to this effect was made in the year 1930. It was pointed out by the learned District Attorney that in spite of warnings and censure to the appellant in the previous years, he did not improve his conduct. As his misconduct persisted, he was served with a show‑cause notice on 11th February, 1982 with serious charges. He did not give any reply to the show‑cause notice as is clear from his own confession as per Annexure 'D' attached with the para-wise comments submitted by the respondent No.

1. Thus contention of the learned coun sel for the appellant that the reply of the show‑cause notice was given on 14th February, 1982 and it was not considered, is absolutely incorrect. As the appellant did not submit any reply to the show‑cause notice and also did not come forward for personal hearing, there was no other alternative but to proceed against him ex parte under the circumstances. As the charges of misconduct were proved against the appellant, hence he was correctly and lawfully removed from service by the Respondent No.1. It was also pointed out by the learned District Attorney that while considering the appeal of the appellant by the appellate authority the appellant was heard in person, thus, before rejecting the appeal of the appellant by the said authority, he was given full opportunity to defend himself.

6. I have given my anxious thought to the arguments of the parties and have also gone through the record of this case so produced by the respondents very carefully. From perusal of the record, it is clear that the appellant was proceeded ex parte. The record shows that the appel lant was himself responsible for the same. His own confession (Annexure 'D' with para-wise comments of Respondent No. 1) to the Principal, Public Health Nursing School, vide his application dated 21st February, 1982, is clear that he did not give any reply to the show‑cause notice on the under standing that Riaz Ali Shah, A. S I., P. S. Qilla Gujar Singh had got the dispute/matter settled between the appellant and the Head Clerk on 13th February, 1982.

7. To adjudicate this case the following two points are worth con sideration in this case :‑ (i) Whether the regular enquiry was necessary in this case as conten ded by the learned counsel for the appellant (ii) Whether it was necessary to afford an opportunity of personal hearing before removing the appellant from service ? I consider that the charges of misconduct against the appellant were persistent, obvious and the Respondent No. 1 had rightly decided to dispense with the enquiry against the appellant through an enquiry officer. Thus, the issue of the show‑cause notice under rule 6 (3) o the Punjab Civil Servants (E & D) Rules, 1975 is in order. However. I further consider that as no reply to the show‑cause notice was submitted by the appellant, the orders of the appellant's removal from service should not have been passed in baste by the Respondent No. 1, the appellant should have been afforded an opportunity of personal hearing on the principle of audi alteram partem (no person will be condemned unheard) and thus, the appellant has been prejudiced in the matter.

8. Keeping the above analysis in view, I set aside the impugned orders, remand the case to the competent authority i.e. Principal, Public Health Nursing School, 5‑Montgomery Road, Lahore to afford an oppor tunity of personal hearing to the appellant, on the principle of audi alteram partem to meet the requirements of natural justice. The appellant is directed to be re‑instated in service to bestow upon him the status of civil servant for proceeding against him by the competent authority as~ mentioned above. However, the fate of the period from the date of the removal from service of the appellant to that of his re‑instatement in service shall also be decided by the competent authority after personal hearing of the appellant. There will be no order as to costs. M. Y. M. Appeal accepted.