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Case No. 286/185 of 1985, decided on 11th October, 1985.

‑‑‑R.8‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Absence without leave‑‑Accused (appellant) not resuming duty after expiry of sanctioned leave and applying for extension‑‑Extension not granted by competent authority under intimation to accused with directions for resumption of duty‑‑Accused instead of resuming duty submitting resignation but same not accepted and subsequently accused withdrawing resignation and requesting for resumption of duty‑‑Enquiry Officer and Authorised Officer not finding accused guilty of wilful absence‑‑Enquiry conducted by Authority to afford personal hearing coming to conclusion for cogent reasons that accused could not presume sanction of leave without orders of competent authority and by failing to resume duty despite direction to that effect was guilty of misconduct of wilful absence‑‑Resultant order of Authority dismissing accused from service, in circumstances, upheld by Service Tribunal.

Riaz Anwar for Appellant.

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

‑‑Dr. Ghulam Rasul, ex‑Senior Medical Officer, District Headquarters Hospital, Lahore has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the respondents Nos. 1 to 6 as detailed above.

2. By virtue of this appeal the appellant has prayed that the impugned notification, dated 26‑12‑1984, whereby the appellant has been dismissed by the respondents Nos.1 and 2 from the service be declared of no legal effect and accordingly set aside. It has also been prayed that the appellant be allowed to resume duty after considering the intervening period as leave without pay.

3. Brief facts of the case are that the appellant was charge‑sheeted vide order, dated 17‑3‑1983 of Director Health Services, Punjab Lahore as under:‑

"That while posted as Sr. Medical Officer, District Headquarters Hospital, Sahiwal you were granted 3 months leave with effect from 3‑11‑1977 vide Director, Health Services, Punjab, Lahore Order No.7493/E.I., dated 1‑11‑1977. You were due to resume duty on 3‑2‑1978 but you applied for 3 months extension in leave from 3‑2‑1978 to 2‑5‑1978. The leave was rejected by Government and the Medical Superintendent, District Headquarters Hospital, Sahiwal was informed to communicate to you these order vide Deputy Director, Health Services, Multan Division, Multan Endorsement No.G‑II/MO/4078/13, dated 1‑8‑1978. Your leave case from 3‑2‑1978 to 2‑5‑1978 was under consideration when you again applied for 6 months extension in leave from 3‑5‑1978 to 2‑11‑1978. The Deputy Director, Health Services, Multan Division,. Multan informed you through registered A.D. Letter No. G‑IIIMO/ 3065/13, dated 14‑5‑1978, that your leave application could not be recommended and forwarded and you were directed to resume duty but you did not comply with the orders. You tendered resignation from service with effect from 3‑11‑1978. You were informed by the Deputy Director, Health Services, Multan Division, Multan vide his Letter No.G‑II/MO/7932/E, dated 27‑11‑1978 that you should deposit one month's pay into Government Treasury in lieu of notice but you did not care. In this way you are absent from duty with effect from 3‑2‑1978, un-authorisedly."

Dr. Altaf Hussain Gardezi, Assistant Director, Health Services, Multan Division, Multan was appointed an Enquiry Officer in this case vide order, dated 17‑3‑1983 by the Director, Health Services, Punjab, Lahore. The Enquiry Officer had submitted his report to the above Authorised Officer vide his letter, dated 7‑5‑1983. On receipt of the report of the Enquiry Officer, the Authorised Officer submitted his recommendations Vide order, dated 14th November, 1984, issued by the Government of the Punjab. Health Department to the appellant, the appellant was afforded an opportunity of personal hearing before the Additional Chief Secretary, Government of the Punjab, Services, General Administration and Information Department who had been designated by the Authority for said purpose. The Additional Chief Secretary, Government of the Punjab, Services General Administration and Information Department, afforded the opportunity of personal hearing on 21‑11‑1984, in addition to the oral submissions, the appellant presented supplementary written statements in his defence as well. The Additional Chief Secretary made his recommendations to the Chief Secretary, Government of the Punjab (Authority) on 10‑12‑1984. Ultimately the appellant was dismissed from service with effect from the date of his wilful absence from duty viz., 3rd February 1978, vide order, dated 26‑12‑1984 of the Chief Secretary to Government of the Punjab, Lahore. The appellant made a review petition to the Governor of the Punjab, Lahore on 21‑1‑1985, which has not been decided within 90 days. Hence the appellant has made this appeal within' next 30 days to this Tribunal. Hence this appeal.

4. We have heard the parties I.e. Mr. Riaz Anwar, Advocate for the appellant and Mr. Haroon‑ur‑Rashid Cheema, District Attorney assisted by the representative of the respondents on behalf of the respondents.

5. It has been argued by the learned counsel for the appellant that the Enquiry Officer had not held the appellant guilty of the charge of wilful absence from duty. The absence from duty was due to the fact that no decision was taken by the Department on his resignation. The findings of the Inquiry Officer were in favour of the appellant which were further recommended by the Authorised Officer and the Secretary, Health Department to exonerate the appellant from charge and to allow him to resume duty, therefore, the respondent No. 5, incorrectly observed in notice under rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, that the findings/recommendations of the Inquiry Officer/ Authorised Officer were against the appellant. It was also pointed out by the appellant's counsel that it was under compelling circumstances that the appellant submitted the leave application for extension of the leave. The fact that his leave application was forwarded by the Deputy Director, Health Services on 23‑1‑1978 (Annexure 'D') t6 the Director, Health Services for sanction gave him sufficient indication that his immediate superior had no objection to the extension of leave and they were satisfied with the justification of extension in leave as requested by the appellant. Concluding his arguments it has also been submitted by the learned counsel for the appellant that the appellant was given personal hearing by the Additional Chief Secretary under rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for which he was not competent to do so. Thus, the impugned order of dismissal of the appellant is unlawful and be quashed on this ground as well.

6. On the other hand, the learned District Attorney has rebutted the above arguments of the learned counsel for the appellant by submitting that it was established beyond any doubt that the appellant remained absent from duty from 3‑2‑1978 wilfully and un-authorisedly. The. appellant was thus, guilty of misconduct and the major penalty of dismissal from the service has been imposed correctly. It was also pointed out by the learned District Attorney that as far as the plea of the appellants' counsel about the findings of the Enquiry Officer/ recommendations of the Authorised Officer are concerned, the opinion formulated by them did not find any support or substantiation from the relevant record. Thus, the Additional Chief Secretary, Government of the Punjab who gave the appellant personal hearing did not agree with the findings of the Enquiry Officer/Authorised Officer and rebutted the same. The learned District Attorney has also submitted that under rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the authority could himself afford an opportunity to the appellant of being heard in person before himself or the authority could designate an Officer senior in rank to the appellant for personal hearing. Thus, there is no force in the arguments of the learned counsel for the appellant that the appellant was given personal hearing by an incompetent authority. Concluding his arguments it has been submitted by the learned District Attorney that the impugned order is a lawful order and no exception can be taken against the same.

7. We have given our anxious thought to the arguments of the parties and have also consulted the record of this case very carefully. The contensions of the learned counsel for the appellant are as follows:‑

(i) The Enquiry Officer/Authorised Officer had not held the appellant guilty of the charge of wilful absence‑from duty. The absence from duty was due to the fact that no decision was taken by the Department on his resignation. The show‑cause notice does not contain the grounds for such difference of the opinion.

(ii) It was under compelling circumstances that the appellant submitted the leave application for extension of the leave. The fact that his leave application was forwarded by the Deputy Director, Health Services on 23‑1‑1978 to the Director, Health Services for sanction gave him sufficient indication that his immediate superior had no objection to the extension of leave and were satisfied with the justification on extension in leave requested by him.

(iii) The appellant was afforded an opportunity of personal hearing by the incompetent authority.

The contentions Nos.(I) and (ii) above of the learned counsel for the appellant have been rebutted by the learned Additional Chief Secretary, Government of the Punjab in his note, dated l0‑12‑1984 sent to the Chief Secretary, Government of the Punjab (Authority) which are reproduced below:‑

"26. Personal hearing was accorded to the accused Officer, Dr. Ghulam Rasool, on 21st November, 1984. In addition to the oral submissions, the accused officer presented supplementary written statements in his defence which is placed at Annexure 'N'. Briefly he advance the following arguments/ pleas.

(i) The Enquiry Officer has not held him guilty of the charge of wilful absence from duty. The absence from duty was due to the fact that no decision was taken by the Department on his resignation.

(ii) Since the show‑cause notice does not contain the grounds of difference of opinion of the Enquiry Officer, while proposing action against the accused officer, the possible inference is that the Authority agrees with the findings embodied in the inquiry report.

(iii) It was under compelling circumstances that he submitted the leave applications. The sheer fact that his leave application was forwarded by the Deputy Director, Health Services on 23rd January, 1978 to the Director, Health Services for sanction gave him sufficient indication that his immediate superior had no objection to the extension of leave and they were satisfied with the justification of extension in leave as requested by him.

27. The pleas/arguments advanced by Vie accused Officer have been examined alongwith enquiry report, the findings of the Authorised Officer and the relevant record on file. As regards the plea at para. 26(i) above, the findings of the Enquiry Officer and the opinion formulated by the Authorised Officer do not finding any support or substantiation from the relevant record. The accused officer was granted leave for 3 months with effect from 3rd November, 1977 which expired on 2nd February, 1978. Thereafter, he applied for extension of leave for further 3 months from 3rd February to 2nd May, 1978 through the Deputy Director, Health Services. His request for extension in leave was not acceded to and the Director, Health Services, Punjab, asked him to justify his request for leave on 16‑2‑1978. He submitted the justification in March, 1978 but the leave was not recommended. However, he submitted another application on 30th March, 1978 for further extension of 6 months leave from 3rd May, 1978 to 2nd August, 1978 but was advised by the Deputy Director, Health Services in May,1978 to resume duty. Not only that, the accused officer was also notified about the rejection of his leave application for extension upto 2nd May, 1978. It is, therefore, abundantly clear that in total disregard of specific directions to resume duty in May, 1978, followed by written communication, in August, 1978, about the rejection of his leave, the accused officer persistently remained absent and finally tendered his resignation on 30‑10‑1978. The resignation was also not accepted and this fact ought to have been taken note of by the accused officer. This was an ample indication to resume duty. On the contrary, he did not bother to join till October, 1982 when he made request for withdrawal of resignation and resumption of duty.

28. As regards his argument at para. 26(ii) above, it was clearly spelled out in the show‑cause notice that the charge of wilful absence stood proved against him. The inference drawn by the accused officer that the Authority agreed with the findings of the Enquiry Officer since no grounds of difference were specified is accordingly untenable.

29. The third plea relied upon by the accused officer is also devoid of cogence. The mere fact of forwarding of his application by the Deputy Director Health to the Director, Health Services, Punjab for sanction does not, by any stretch of imagination, confer any privilege to the accused officer to go on leave. Sanction of competent authority has to be there for availing the leave; without prior sanction it amounts to unauthorised absence from duty."

As far as the contention No. (iii) is concerned, the rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 is reproduced below:‑

8. In the case of any proceeding the record of which has been reported for orders under sub‑rule (4) of rule 6 or sub‑rule (8) of rule 7‑A the authority may pass such orders as it deems fit but before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person either before himself or before an officer senior in rank to the accused designated for the purpose, after taking into consideration the record of such personal hearing prepared by the officer so designated."

This rule makes it clear that Chief Secretary (Authority) could designate the Additional Chief Secretary, Government of the Punjab Services, General Administration and Information Department to afford an opportunity of personal hearing to the appellant. Thus, there is no force in the arguments of the learned counsel for the appellant that the appellant has been provided an opportunity of personal hearing by the incompetent authority. Hence, this objection of the appellant's counsel is dispelled.

8. The upshot of the above analysis of the case is that there is no force in the appeal of the appellant which is dismissed as such.

There is not order as to costs.

A.E.

Appeal dismissed

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