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Case No. 85/45 of 1985, decided on 26th March, 1986.

‑‑‑S. 4‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr.2 (3) 3 6‑‑Show‑cause notice‑‑Issuance of‑‑Requirement‑‑Show‑cause notice, held, was required to be issued not by Authority but by Authorised Officer‑‑Show‑cause notice neither issued by Authority nor by Authorized Officer would render entire proceeding taken against civil servant to be illegal, without jurisdiction and not sustainable‑‑Case remanded to competent authority to proceed afresh strictly in accordance with Rules.

‑‑‑ Removal from service‑‑Order purporting to give retrospective effect to order of removal from service, held, would be patently unlawful, void and could not be given effect tip

1985 S C M R 1178 rel.

Muhammad Iqbal Chaudhry for Appellant.

Ghulam‑us‑Sayyadain, Deputy District Attorney for Respondent.

Muhammad Ilyas, ex‑Forest Ranger, Southern Zone, Multan, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Chief Conservator of Forests, Punjab, Southern Zone, Multan (which is successor office to the defunct office of the Chief Conservator of Forests, Punjab) and Secretary. Government of the Punjab, Forestry Department, Lahore, as respondents.

2. By virtue of this appeal, he has prayed that the impugned orders, dated 26‑12‑1984 as well as, dated 2‑9‑1980 whereby he was removed from service w.e.f. 18‑12‑1979, be set aside, and he be re‑instated in service with full back benefits.

3. Brief facts of the case are that the appellant joined Forest Department as Forest Ranger on 1‑10‑1970. While serving, as Forest Ranger in Muzaffargarh the appellant proceeded on leave sanctioned by Divisional Forest Officer, Muzaffargarh, for four days w.e.f. 14‑12‑1979.The appellant and his wife seriously fell ill during the leave period, therefore, he telegraphically requested for grant/extension of leave, as per Annexures 'A/1' to 'A/10'. The health of the appellant seriously deteriorated thereafter and he submitted leave applications duly supported by Medical Certificates through postal service, copies of which have also been placed with the appeal. However, he did not receive any intimation from the Department either about acceptance or rejection of his leave and ultimately he was served with a show‑cause notice issued by the Chief Conservator of Forests Punjab, in daily Nawa‑i‑Waqt, dated 12‑8‑1980. The appellant appeared before the Authority on 16‑8‑1980, and again produced copies of Medical Certificates and postal service in support of the said leave applied for, and sought permission to join duty after obtaining fitness certificate from the authorised Medical Attendant but the respondent did not accept his plea and straightaway passed the impugned order, dated 2‑9‑1980, whereby the appellant was removed from service w.e.f. 18‑12‑1979. The appellant preferred departmental appeal on 1‑10‑1980, but the same was also rejected by respondent No,2 by his order, dated 26‑12‑1984. Hence this appeal.

4. 1 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 argued that it was not disputed that the appellant remained on leave duly supported by medical certificates issued by Registered Medical Practitioner and under the leave Rules also the leave applied on medical ground could not be refused. However, the Authority was empowered to secure a second medical opinion, which was never done therefore, the first opinion given by the Registered Medical Practitioner was binding on the respondents. The shrew‑cause notice referred to above was issued by the Authority whereas under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the show‑cause notice was required to be served by the Authorised Officer according to the Delegation of Powers Rules of the Department. Learned counsel for the appellant has argued that the impugned order sustained. He has placed reliance on 1985 SCMR 1178. Learned counsel for the appellant has also pointed out that the factum of Medical Certificates was never made a 'subject of enquiry and the Authority did not deny this fact also. Learned counsel for the appellant has further argued that the Appellate Authority while passing the impugned order did not afford opportunity of personal hearing as required under Rule .16 of the (END) Rules, which was incumbent upon the Appellate Authority to hear the appellant before disposing of his appeal, therefore, the appellate order was vitiated on this ground.

6. On the other hand learned Deputy District Attorney has adopted the comments of the Department and vehemently resisted the appeal and prayed that the impugned orders being justified be maintained.

7. I have given my anxious thought to the arguments advanced by the parties and find lot of force in the argument of learned counsel for the appellant that the show‑cause notice was required to be served by the Authorised Officer and not by the Authority as clarified in the Delegation of Powers Rules, 1962, as amended by Government Notification No. SORI (S&GAD) 15‑6/73, dated 25‑9‑1975, according to which Conservator of Forest is 'Authority' and Divisional Forest Officer is the 'Authorised Officer' for Forest Rangers, as defined in Rule 2 sub‑rule (3) Chapter I of the Punjab Civil Servants (E&D) Rules, 1975. Thus the respondent No.1 was neither Authority nor Authorised Officer to initiate any action against the appellant and to pass any order thereon, the entire proceedings become illegal, without jurisdiction and cannot) be confirmed, and the impugned orders are liable to be set aside on this score alone. Similarly the impugned order, dated 2‑9‑1980 giving retrospective effect from 18‑12‑1979, cannot be permitted to stand in view of the judgments of .this Tribunal as well as ruling of their Lordships of the Supreme Court of Pakistan reported as 1985 S C M R 1178. In the light of the above, this Tribunal has no alternative but to accept the appeal, therefore, proceed to accept the appeal, set aside the impugned orders and remand the case to the Competent Authority to proceed afresh against the appellant if he so desires strictly in accordance with the rules. The appellant is re‑instated in service in order to clothe him a civil servant for the purpose. The fate of the period of his remaining out of service shall also be decided by the Authority itself. There will be no order as to costs.

A.A. Appeal accepted.

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