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Case No. 540/1961 of 1982, decided on 26th July, 1983.

‑‑ Audi alreram partem‑Police Official‑Guilty of absence without leave‑Charge proved in enquiry‑Medical certificate in support of illness not produced in time and no application for leave made- Dismissal order passed in haste without opportunity of hearing -Accused in circumstances, held, prejudiced on principle of audi alteram partem‑Appellant (accused), in circumstances, directed to be reinstated and case remanded by Service Tribunal to competent authority for affording personal hearing‑Punjab Service Tribunals Act (IX of 1974), S. 4.

Ejaz Anwar for Appellant.

A. G. Humayun, District Attorney for Respondents.

Date of hearing : 26th July, 1983.

Zaka Ullah Khan, Ex.‑A. S. I. has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Inspector‑General of Police, Punjab, Lahore, Deputy Inspector‑General of Police Gujranwala Range, Gujranwala, and the Superintendent of Police, Sialkot, as respondents.

2. By virtue of this appeal, he has prayed that the impugned order of his dismissal dated 24th January, 1980, passed by the respondent No. 3, upheld and confirmed by the Departmental Authorities, be declared illegal, void ab initio, against the provisions of law and having been passed in contravention of the Punjab Police (E. & D.) Rules, 1975, as well as the principle of natural justice. He has further prayed that he be re. instated in service with all back benefits.

3. Brief facts of the case are that the appellant was charge‑sheeted on 9th June, 1979, for misconduct in that while posted in Police Lines, was found absent on 4th March, 1979 at 6‑45 p. m. in the roll call and did not resume duty till 4th April, 1979. The appellant proceeded to Lahore to appear before the D. I.‑G. of Police, Gujranwala Range at Lahore on 4th April, 1979, but he did not report back in the Police Lines and absented himself from duty. The appellant submitted his reply in response to the charge‑sheet and statement of allegations on 22nd July, 1979. The same was considered unsatisfactory and Enquiry Officer was appointed to hold departmental proceedings against the appellant. The appellant was summoned to join the proceedings but he failed to do so. Accordingly ex parse proceedings were taken against him by the Enquiry Officer and the Enquiry Officer held the appellant guilty of the charge. The appellant was also served with a final show‑cause notice on 11th January, 1979, through his father but he did not submit any reply in response to this final show‑cause notice also. The Superintendent of Police, Sialkot, considered the whole case and he dismissed the appellant from service vide impugned order dated 24th January, 1980. The period of absence from 4th March, 1979 to 3rd April, 1979 and from 5th April, 1979 to 23rd January, 1980, was treated as leave without pay. The appellant made an appeal before the D. I.‑G. Police Gujranwala Range at Lahore, which was rejected. The appellant made a review petition to Inspector‑ General of Police, Punjab, Lahore, which was also rejected vide impugned order dated 11th October, 1982. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant bas been proceeded ex parse. He was also not heard in person before dismissing him, thus, he has not been provided opportunity to defend himself and has been prejudiced in the matter, The appellant's counsel has further relied on Annexure 'B' of the appeal wherein the copies of the medical certificates (five in number, for the period from 7th April, 1979 to 7th March, 1980) given by Dr. S. M. Raza Bokhari, Medical Officer, Incharge Municipal Civil Hospital, Kot Radha Kishan, have been attached to certify that the appellant remained actually sick during the above‑mentioned period. This was also pointed out by appellant's counsel that these certificates in original were produced to the Department which is clear from the Report No. 9 dated 10th March, 1980 (copy at Annexure C'). It was contended by the learned counsel for the appellant that these medical certificates prove that the appellant was actually ill during the period from 7th April, 1979 to 7th March; 1980, and the appellant has been dismissed from service without proving the charge of absence from duty. In his written defence before the Enquiry Officer, the appellant had submitted that he was sick and would produce the medical certificates of the entire period after recovery from the sickness but his defence was not acceded to, he was proceeded ex parse at the will of the Enquiry Officer and then by respondent No. 3, who issued the illegal and unjustified order of the dismissal of the appellant.

5. Controverting the above arguments, the learned District Attorney has submitted that the appellant absented himself on self‑sanctioned leave and did not care to submit any application for leave. He did not appear before the Enquiry Officer to put up his defence, tried to hoodwink the inquiry proceedings and did not care to reply to final show‑cause notice issued by the Respondent No. 3. Thus, it was rightly decided by the Superintendent of Police, Sialkot, on 24th January, 1980 that the appellant was not interested in service and bad absented himself wilfully from 4th March, 1979 onward.

6. I have given my anxious thoughts to the arguments of the parties and have also carefully consulted the record of this case as produced by the respondents. The record shows that the appellant did not submit his application for leave supported by the medical certificates in time and when he was asked to explain his conduct by the Enquiry Officer. he did not bother also to put up the proof of his sickness at the proper time. He even, did not produce the medical certificates in support of his sickness, in reply to the final show‑cause notice. He is thus at fault in not taking part in the proceedings against him.

7. However, going through this case I consider that the impugned order dated 24th January, 1980, has been passed by the Superintendent of Police, Sialkot in a haste and the appellant should have been afforded an opportunity to be heard in person on the principle of audi al teram partem (no person will be condemned unheard). Thus, the appellant has been prejudiced in the matter.

8. Keeping the above analysis and the fact in view that the appellant had produced the medical certificates in support of his sickness for the period from 7th April; 1979 to 7th March, 1980, though alt a later stage, I set aside the impugned orders and remand the case to the competent authority, i. e. the Superintendent of Police, Sialkot to afford an opportu nity to the appellant to be heard in person on the principle of audi alteram partem. The appellant is directed to be reinstated in service to bestow upon him the status of a civil servant so that be could be afforded an opportunity of personal bearing by the competent authority i. e. the Superintendent of Police, Sialkot. However, the fate of period for which the appellant remained out of service including the disputed period of absence from duty shall also be decided by the competent authority after hearing the appellant in person.

There will be no order as to costs.

A. E Case remanded.

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