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Case No. 325/207 of 1985, decided on 13^th January, 1986.

‑‑‑Rr. 2(1)(d)4(1)(a)‑‑Misconduct‑‑Absence even for an hour if not justified can be considered as wilful absence‑‑Civil servant under transfer relinquishing charge of existing post and instead of joining second post submitting leave application on medical grounds without medical certificate‑‑Leave application returned with observations that it should be according to procedure and supported by medical certificate‑ Duty resumed thereafter after lapse of about 5 months without submitting'"" application duly supported by medical certificate for intervening period‑ Penalty of withholding annual increment for two years, in circumstances held, not exceptionable on charge of wilful absence.

Syed Aqa Asif Jaffery for Appellant.

Malik Ghulam‑us‑Sayyadain, Deputy District Attorney for Respondents.

.‑Jan Muhammad Javed. Project Manager, Rural Development Markas, Taunsa District Dera Ghasi Khan, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Director‑General Local Government and Rural Development, Lahore and the Secretary, Local Government and Rural Development. Government of Punjab, Lahore as respondents.

2. By virtue of this appeal he has prayed that the orders of respondent No.1, dated 6‑6‑1984 and that of respondent No.2, dated 6‑5‑1985, whereby the respondent No. l has imposed a penalty of stoppage of annual increment for two years, and respondent No.2 upheld the same, be set aside.

3. Brief facts of the case are that the appellant while posted as Project Manager at Fazilpur District Rajanpur, was transferred to Taunsa vide, order, dated 19‑5‑1983. The appellant relinquished the charge on 21‑5‑1983, but did not join Taunsa due to his aliment. He has submitted leave application on medical ground but as the same was not accompanied by medical certificate nor entitlement was stated therein, the same was returned with the observation that he should apply leave according to the rules, accompanied by medical certificate, also stating therein his entitlement for the said leave. However, the appellant joined his new assignment on 8‑10‑1983. Meanwhile the appellant was charge‑sheeted for his wilful absence, without any leave and the authority directed the Director‑General, Local Government and Rural Development, as Authorised officer, to proceed against him under the Punjab Civil Servants (E & D) Rules, 1975 vide order dated 31‑8‑1983. The Director, Local Government and Rural Development Multan was appointed as Inquiry Officer vide order, dated 15‑11‑1983. The Enquiry Officer proceeded in accordance with the (Efficiency and Discipline) Rules, 1975 and gave full opportunity to the appellant. The Enquiry Officer found the appellant responsible for not adopting the proper procedure for submission of his leave applications and remaining absent from duty unlawfully. The appellant was served with a show‑cause notice by the Authorised Officer for major penalty, who after hearing his defence, himself imposed upon him minor penalty of stoppage of annual increments for two years. He filed appeal before the authority, which was rejected and the order of Authorised Officer was upheld. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned Deputy District Attorney assisted by the representative of the department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the substance of the charge was mainly schemed out of appellant's non‑joining at Taunsa due to his serious ailments, the charge that no intimation regarding sickness and non‑pining at Taunsa was given to the superior officers was arbitrary and without any basis.

It has been vehemently argued that the appellant was genuinely ill as well as suffering from Renal colic pain and was advised rest by the Medical Officer, therefore, the Government was not within its rights to refuse such leave and to treat his period of absence as wilful absence. He has challenged the conduct of the inquiry so adopted against the appellant and has argued that even the evidence available before the Enquiry Officer did not justify the penalty so imposed upon him.

6. On the other hand learned District Attorney has adopted the comments submitted by Malik Muhammad Jehangir, Director‑General, Local Government and Rural Development Punjab, Lahore, duly signed by the Secretary to Government of Punjab, Local Government and Rural Development Department, Lahore, and has submitted that no injustice has been done in the case of the appellant, rather he has been treated leniently by imposing upon him minor penalty of stoppage of two increments and has prayed that the appeal be dismissed with cost because it has no legal force.

7. We have given our anxious thought to the arguments advanced by the parties and find that the appellant was served with a charge‑sheet accompanying by statement of allegation and Mr. Mumtaz Ahmad Khan, Enquiry Officer/ Director, Local Government and Rural Development, Multan, made an exhaustive inquiry in this case and was of the opinion that charges Nos. 1 and 2 did not stand proved against him whereas charge No‑3, which related to the wilful absence without intimation to the superiors w.e.f. 22‑5‑1983 to the date of assuming charge at Taunsa, stood fully proved against him.

8. The fact of the matter is that the appellant when he fell ill was under obligation to submit medical certificate of Government Medical Officer alongwith his leave application, which according to his own admission, he failed to do so. In these circumstances the respondent Government has no choice but to tell him that this was not procedure so laid down in the Leave Rules and was justified to return the application with the direction that it should be submitted on proper form alongwith medical certificate of Authorised Medical Officer. In these circumstances it was obligatory for the appellant to follow the laid down procedure, which he failed to do so. As the department has also taken stiff attitude in his case by refusing to entertain the application and not directing the appellant to appear before the Medical Superintendent/ Medical Board, the Authorised Officer keeping this aspect of the case in view, did not impose major penalty of any kind, but only awarded him minor penalty for his carefree attitude from which he cannot be exonerated. According to the rules, even an absence for an hour can be considered wilful absence, if the same is not justified whereas in the case of the appellant, he was absent for 5 months although on medical ground. It was incumbent upon the appellant to adopt the procedure so laid down in this regard, as any deviation from the same was likely to cause indiscipline among the service and no exception can be taken to the same.

9.The plea of the appellant that the first two serious charges were droped against him, therefore, he should not have been punished, is hardly tenable on the ground that if the said two charges stood proved against him, he was liable to be dealt with strictly and would have been visited with major penalty by the authority. Similarly his plea that the authorised officer although had issued him a show‑cause notice for major penalty was not within his rights to convert the same into minor one, is not plausible for the reasons that he was justified to issue such show‑cause notice as the charges proved against him of serious nature, when he took into consideration the entire pros and cons of the case he himself imposed the minor penalty, which he was competent to do so. It is also a fact established on record that first medical certificate, which came to the notice of the Government was made available to him after five months absence of the appellant at the time when the appellant joined his new assignment at Taunsa. The appellant was given full opportunity and his defence was taken into consideration, therefore, it cannot be said that the order so passed by the Authorised Officer was arbitrary and without application of mind.

10. The result is we do not find any merit in this appeal which is dismissed accordingly with the observation that stoppage of increments for two years will be without cumulative effect as required under the rules. There will be no order as to costs. ,

A.E. Appeal dismissed.

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