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Case No. 33/1502 of 1982, decided on 29th June, 1982.

‑‑ Rr. 2 (1) (b), (c) & 2 (3) ‑-- "Authority" and "Authorised Officer"‑No delegation of power in favour of any subordinate authority ‑Power of "Authority" and "Authorised Officer" in circumstances, held, would vest in Government ‑ Employees of Vocational Institutes transferred from Education Department to Labour Department‑No delegation of powers in respect of such employees made in favour of any subordinate authority in Labour Department Penalty order passed by Director Manpower and Training, in circumstances, held, not legally sustainable.

Abrar Hussain Kazmi v. I. G. R. etc. N L R 1978 service 306 rel.

‑‑ Misconduct of absence from duty ‑ Official proceeding on sanctioned casual leave and with permission to leave station for home, town to look after damage caused to his house due to heavy rain----Making further application for extension of leave in order to make arrangements for his family having been rendered shelterness due to house being collapsed ‑ Failure in reporting back for duty being due to Act of God, charge of absence from duty, in circumstances held, not warranted.

Masud Ahmad Riaz for Appellant.

Haroon‑ur‑Rashid Cheema, District, Attorney for Respondents.

Ch. Tawangar Hussain, Senior Trade Instructor (Rtd.) has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 in which he has impleaded the Director, Manpower and Training Punjab Labour Department and Secretary to Government of the Punjab, Labour Department as respondents.

2. By virtue of this appeal he has prayed that the impugned orders dated 15‑3‑1981 and 28‑12‑1982 may be set aside and the appellant be re‑instated in service with full benefits of Pay, Allowances, Seniority from 15‑3‑1981.

3. Brief facts of the case are that up to 1979 the Administrative control of the Government Vocational Institutes in the Punjab remained with the Education Department and thereafter these institutes were trans ferred to the Labour Department. The teachers of these institutes resisted the transfer of these institutions to Labour Department 'and ultimately the Labour Department had to concede before the learned civil Court that the terms and conditions of the teachers would not be altered. The appellant was, however, the torch‑bearer of the cause of his class before the Courts/Department. During the course of his service with the Labour Department he was given adverse reports for the year 1979. He filed an appeal before this Tribunal and by judgment dated 6‑10‑1981 (Annexure 'A') we expunged the said adverse remarks. While the afore said appeal of this appellant was pending before this Tribunal he received a charge‑sheet dated 9‑12‑1980, which was accompanied by statement of allegations. The appellant submitted detailed reply dated 29‑12‑1980 which did not find favour with respondent and appellant was given show cause notice dated 4‑2‑1981. The appellant was compulsorily retired from service wide order dated 15‑3‑1981 by the Director, Labour and Manpower. The appellant submitted an appeal before respondent No. 2 on 31‑3‑1981 but the same was rejected vide order dated 28‑12‑1981. Hence thin appeal.

4. We have heard the learned counsel for the appellant and learned D. A. and perused the record carefully with their assistance. It has been submitted on behalf of the appellant through his learned counsel that the entire proceedings were taken by the Director who was neither Authority nor Authorised Officer as laid down under the rules; that the proceedings against the appellant were based on the malice on account of the personal prejudice of the Director Manpower and Labour, Sardar Hadayat Ullah Khan Mokal, which‑is, according to the appellant, obvious from the action of the said Director when he imposed the condition at the time of appellant's transfer that the appellant would not be entitled to T. A. and pay in advance on account of his transfer from one place to another though no such condition was imposed on others.

5. With regard to the merits of the case the learned counsel for the appellant has submitted that the charge of wilful absence is without any foundation and other charges relating to insubordination are in fact the result of prejudice which existed in the mind of the Director who on his whim and fancy distorted the facts to the disadvantage of the appellant.

6. On the other hand the learned D. A. has adopted the parawise comments given by the Department with regard to the merits of the case. As to the legal objections, he teas submitted that the same are liable to adjudication by the Tribunal in accordance with the law.

7. First‑of all 'we will advert to the legal objections raised by the learned counsel for the appellant that the Director, Manpower and Training was neither an Authority nor Authorised Officer in his case and as such the entire proceedings are without any lawful authority. In this respect the learned counsel for the appellant relied upon the Directorate of Manpower and Training, Punjab Delegation of Powers Rules, 1979 which were pro mulgated on 26‑5‑1979 i.e. p0ior to the transfer of the Vocational Institute alongwith their staff to the Labour Department, We find that on the transfer of such staff to the Directorate of Manpower and Training no such Delegation of Rules were formulated which would authorise the Director of Manpower and Training either to act as Authorised Officer or Authority in this behalf. We have also examined, further contention of the learned counsel in which reliance has been placed on In re : Abrar Hussain Kazmi v. I. G. R. etc (N L R 1978 Service 306), decided by this Tribunal. We have already upheld the similar contention that in the absence of any delegation in favour of and subordinate authority the powers of Authority and Authorised Officer will remain vested in the Government.

8. In view of above we are of the considered opinion that the legal objection so raised by the learned counsel goes to the very root of the case and is liable to prevail. The learned D. A. and the representative of ' the Department were unable to show anything to the contrary.

9. We regard to the merits of the case we will reproduce the charges as under : ‑

(i), That the appellant availed, leave from a1‑5‑1980 to 31‑5‑1980 on medical grounds. During the course of leave he was asked to appear before the Medical Superintendent, Services Hospital, Lahore for second medical opinion as the Medical Certificate was originally issued by the Medical Officer, Mayo Hospital and was not countersigned by the M. S. of that hospital but he did not comply with tile orders.

(ii) That the appellant sent an advance copy of the application to the Labour Department for the grant of leave for 30 days without waiting for a decision from the competent authority which has been done in clear violation of the instructions.

(iii) That the appellant made correspondence with the Directorate and Labour Department as General Secretary of so‑called Punjab Vocational Teachers Association which is illegal.

(iv) That the appellant was absent from duty w.e.f. 9‑8‑1980 to the date of issue of the charge‑sheet simply leaving an application dated 7‑8‑1980 with the Principal, G.V.I., D. G. Khan, followed by another application of 30‑8‑1980.

10. To resolve the issue involved in the first charge, we have perused the detailed explanation of the appellant. We have also the advantage of going through the Departmental file and find that the certificate of illness issued by the Medical Officer Outdoor Mayo Hospital was not required to be countersigned by the concerned Medical Superintendent.. Therefore, the appellant should not have been advised to approach any Medical authority for its verification. Undoubtedly the appellant was directed to appear before the Medical Superintendent but we also find that no such date was fixed by him in order to apprise the appellant to get needful done. As the validity of the documents/certificate has not been challenged, therefore, we did not in any way agree with finding of miscon duct. The appellant was declared fit to resume the duty, and he accordingly reported for the same. With regard to the assertion of the respondent that certificate so produced by the appellant was by unidentified person, the same is not plausible as, if that would have been the situation, the M. S. would not have countersigned it. It may not be out of place to mention that the leave was availed by the appellant in June 1980 and the charge sheet was issued in December 1980. In the light of the above analysis of this charge, we are fully convinced that this charge is without any foundation.

11. With regard to the charge No. 2 the appellant has applied 30 days leave and the same was verified and title to leave was called for from the Principal, G.V.I., Gujranwala. It is clear from the record that the appel lant was in the meanwhile transferred to D. G. Khan and was advised to apply afresh. In this way the appellant had submitted an advance copy to Secretary, Labour which was alleged to be a contravention of the instruc tions. The record of this case reveals that the appellant applied on 16‑4‑1980 for the grant of one month's earned leave w.e.f. 2‑5‑1980 to I M & T through D. D. (Dv. Cell) stating that he has been sanctioned a house building advance and had to build a house. He has. constantly been reminding to the Department for sanction of the said leave on the plea that there was every likelihood of the material being deteriorated during that period. According to the instructions the leave should be sanctioned within two weeks of the receipt of the complete papers but it seems that no action was taken in this regard: Therefore, the appellant after a number of reminders sent an advance copy of the same to the Department. Thus the procedure so adopted by the appellant was justified in accordance with rules laid in this behalf. We therefore, exonerate the appellant from this charge also.

12. With regard to the charge No. 3 there is no doubt about that fact that the D M & T has been asking the appellant to stop his activities as General Secretary of the Government Vocational Teachers Association which was not a recognised body. But when we look into the record, we find that this Directorate and Labour Department have all along been addressing the appellant as 'General Secretary' as well as show ing full sympathies with the problems of Vocational Teachers. The appellant had applied for recognition of his Association and the instruc tions on the subject show that it was the duty of the Department to recognise the association as no deficiency was pointed out to the Secretary for his request to accord such recognition. In this situation would not be fair to hold that appellant was engaged in activities, subversive in nature.

13. With regard to the charge No. 4 the facts are that while posted at D. G. Khan, the appellant received an intimation on 4‑8‑1980 that his house at Lahore has severely been damaged due to heavy rain of 1980 and was about to collapse. He applied for three days' casual leave to the Principal with permission to leave the station which was granted. When he reached Lahore, he found that there was about five feet deep rainy water inside his house premises. The appellant had made a statement on solemn affirmation that his house had collapsed and his household affects including dowry of his daughter had been destroyed and his seven children were rendered shelterless. We in the circumstances would not hold the appellant guilty of absence from duty as alleged in this charge as he had left with the permission of the Department and due to U.S. Major (Act of God), he could not report back and requested the Department to consider his leave, which was due.

14. We have carefully taken the note of the findings of Section Officer IV (Labour) offered by him while dealing with this appeal addressed to the Secretary, Labour and we are fully in accord with his recommendation that the appellant was liable to be exonerated from all the charges. We are also constrained to observe that the Secretary without adverting to the detailed report of the Section Officer which dealt with each and every aspect of the case passed the impugned order without giving any cogent reasons for the same or controverting the recommendations of the Section Officer. We, therefore, find that the both impugned orders are liable to set aside, on the ground that order of D. M. T. is unrealistic and contrary to facts and without lawful authority whereas the appellate order has failed to give reasons for maintenance of the basic order and ignoring the patent legal flaw.

15. In view of the above we are of the considered opinion that the appeal is liable to be accepted both as on legal as well as factual plane. The result is that we accept the appeal and set aside the impugned orders as being without any justification and not by legal authority and direct the appellant be re‑instated in the service from the date he has been removed He will be given all benefits, pay, allowances and seniority etc., as if he was never retired from service.

Appeal accepted.

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