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Civil Appeal No. 198 of 1982, decided on 19th March, 1986.

(Against the judgment of the Punjab Service Tribunal, dated 17‑7‑1982, in Case No. 367/1213 of 1981).

‑‑Art. 212(3)‑‑Leave to appeal granted to examine inter alia whether before arriving at guilt of appellant, a civil servant, previous quality of service rendered by him could be so copiously referred and made basis for upholding finding and punishment when civil servant had not been put on notice with regard to quality of service earlier rendered by him.

‑‑‑R. 15‑‑Dismissal from service on charge of unauthorized absence‑ During pendency of appeal before Appellate Authority, earlier order of dismissal substituted, without notice to appellant changing date of dismissal‑‑Appeal dismissed with short order without affording personal hearing‑‑Decision challenged‑‑Service Tribunal, without attending to any of legal grounds, referred copiously to past service record and dismissed appeal‑‑Leave to appeal granted‑‑Plea that Tribunal had sanctified orders of competent authority an basis of past service record of appellant was borne out from record‑‑Leave applications submitted by appellants were not considered and he was treated absent even for period when he attended office or was on sanctioned leave‑‑First order of dismissal being defective could not be sustained on facts and had to be set aside and second order being without jurisdiction could not remain in field‑‑Appeal accepted being competent authority at liberty to enquire afresh into matter after associating appellant.

Imtiaz Muhammad Khan, Advocate‑on‑‑Record for Appellant.

M. Nawaz Abbasi, Asstt. A.‑G. Punjab and Rao Muhammad Yousaf, Advocate‑on‑Record for Respondents.

Date of hearing: 19th March, 1986.

Leave to appeal was granted under Article 212(3) of the Constitution to examine, inter alia, whether before arriving at the guilt of the appellant, a civil servant, the previous quality of service rendered by him could be so copiously referred and made the basis for upholding the finding and the punishment when the civil". servant had not been put on notice with regard to the quality of service earlier rendered by him.

The appellant was at the relevant time posted as Assistant Vernacular Clerk in the Irrigation Department, Mianwali. His competent officer was the Superintending Engineer and the Appellate Authority the Chief Engineer. The Competent Authority on 11‑8‑1979 served on him a show‑cause notice. The charges were two: one of unauthorised absence from 8‑8‑1978 and the other charge was that he obtained private employment in a Banking Corporation at Khushab. He submitted his reply denying both the charges. As regards his absence he stated that he had submitted applications alongwith a certificate of private medical practitioner about his illness. The Superintending Engineer after affording him a personal hearing, by an order, dated 20‑11‑1979 dismissed him from service with effect from 8‑8‑1978‑‑The date of his authorised absence. The appellant filed a departmental appeal to the Chief Engineer on 30‑11‑1979. While this appeal was pending with the Chief Engineer, the Superintending Engineer passed an order on 14‑5‑1980 substituting his earlier order and this was without notice to the appellant. Herein the date of dismissal from service was changed from 8‑8‑1978 to 27‑1‑1979.

When the appeal came up for hearing before the Chief Engineer in the presence of the appellant, it was found that the appeal was not properly drawn up as required under rule 14 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (hereinafter referred to as the Rules). The appellant was directed to re‑submit his appeal in accordance with the rule. He did so and by a very short order, dated 1‑7‑1981 the appellant was informed that "Your appeal cited as subject has been considered and rejected". This communication was addressed by the Administrative Officer for Chief Engineer, Irrigation. The office note which was submitted to the Chief Engineer on the factual aspect of the case disclosed that the order under appeal had been substituted by a subsequent order pending the appeal, that the date of dismissal had been changed from 8‑8‑1978 to 27‑1‑1979 and that from 8‑8‑1978 to 27‑1‑1979 and two days thereafter the appellant was on sanctioned leave.

The appellant finally approached the Service Tribunal and objected to the procedure adopted by the Superintending Engineer and the Appellate Authority in passing the orders adverse to him. The Service Tribunal did not attend to any of these legal grounds and instead referred copiously to the past service record of the appellant and dismissed his appeal.

The main contention of the learned counsel for the appellant is that there was no period of his absence which was not covered by an application for leave and that the departmental officers have not taken note of the applications filed by him seeking leave. They have treated him as absent even during the period when he attended the office and worked therein and the pay for that period was also drawn by the office itself for disbursement to him. A grievance was also made that while the appeal was pending the Competent Authority could not substitute its order to make a substantial alteration therein by changing the date of dismissal from 8‑8‑1978 to 27‑1‑1979 when in fact on 27‑1‑1979 he was on sanctioned leave. It was also contended that the Appellate Authority did not at the final stage of consideration of his appeal afford him a hearing.

The contention that the Service Tribunal sanctified orders of the Competent Authority as maintained in appeal on the basis of past record of service of the appellant is borne out by the fact that in para. 5 spreading over three typed pages, the quality of service rendered by him since 1968 was brought under review. Secondly, it was not at all noted that the Competent Authority had no power or the jurisdiction to pass a revised order on 14‑5‑1980 because an appeal was already pending and after passing an order dismissing the appellant from service with effect from 8‑8‑1978 he could not substitute that order about six months thereafter. The first order of dismissal dated 20‑11‑1979 was defective and it had to be set aside. The second order of the Competent Authority passed on 14‑5‑1980 was without jurisdiction and could not remain in the field.

The Appellate Authority heard the appellant personally at the stage when it ordered that the appeal should be refiled in accordance with rule 14 but there is no indication either in the order or in the record that a personal hearing was afforded to the appellant when the appeal was refiled. The appellate order is so lacunic that it does not deal with certain factual aspects appearing from record of which an extract in the form of a note was submitted to it showing that there were applications covering entire period of his absence and they had to be considered and dealt with.

We find that as the first order of dismissal passed on 20‑11‑1979 could not be sustained on facts and the second order of dismissal dated 14‑5‑1980 was without jurisdiction the same had to be set aside We accept the appeal, set aside these two orders and that of the Appellate Authority, dated 1‑7‑1981. The department and the Competent Authority shall be free to enquire afresh into the matter after associating the appellant and taking stock of the applications filed, and the time when they were filed. No order as to costs.

M.I. Appeal accepted

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