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Case No. 732/592 of 1985, decided on 17^th May, 1986.

(a) Punjab Service Tribunals Act (IX of 1974)

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‑‑‑S.4, Punjab Police (Efficiency and Discipline) Rules, 1975, R.6‑ Diciplinary action‑‑Principles of natural justice‑‑‑Nobody could be condemned unheard‑‑Police constable (appellant) on casual leave falling ill and applying for leave on medical grounds duly supported by medical certificate countersigned by Medical Superintendent of concerned District Headquarters Hospital‑‑Dismissed from service on charge of absence without leave or permission‑‑Service of show‑cause notice on given address not established‑‑Proper course for competent authority if not satisfied with Medical Certificate, held, was to call upon appellant to appear before Medical Board Appeal against impugned dismissed order accepted by Appellate Tribunal and same quashed being against fundamental principle of natural justice‑‑Appellant directed to be re‑instated with all back benefits.

(b) Punjab Service Tribunals Act (IX of 1974)‑‑-----

‑‑‑S. 4, Punjab Service Tribunals (Procedure) Rules,‑ 1975, R.19(2)‑ Non‑submission of comments/reply by respondent‑‑Effect‑‑Respondent Department despite reminder from Registrar, Service Tribunal failing to submit comments/report on date fixed by Tribunal‑‑Tribunal, in circumstances, accepting appeal by placing reliance upon affidavit of appellant

‑‑‑R. 6‑‑Civil services‑‑Disciplinary action‑‑Dismissal from service‑ Order would be effective from date of passing and not retrospectively.

Ch. Muhammad Abdul Salim for Appellant.

A.G. Humayun District Attorney for Respondent

Iqbal Hussain ex‑Constable has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the State through Superintendent of Police, Headquarter, Lahore, as respondent.

2. By virtue of this appeal he has prayed that the impugned orders, dated 24‑12‑1983 and 23‑9‑1985, passed by the S.P. Headquarters Lahore and appellate order passed by the Additional Inspector‑General of Police, Punjab, Lahore be set aside, being illegal and without justification.

3. Brief facts of the case are that the appellant was dismissed from service as Police Constable, vide ex parte order, dated 24‑12‑1983, by S.P. Headquarters, Lahore, on the ground that the appellant absented himself without leave or permission from competent authority. Against the said order he filed a detailed representation/appeal/revision before the learned Inspector‑General of Police, which was also dismissed as being without any merit. Hence this appeal.

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

5. Before 1 proceed with the merits of the case, it will be useful to mention that the appeal was admitted to regular hearing on 5‑31986 and notice was issued to the respondent to submit comments by 17‑3‑1986. On 17‑3‑1986 no reply was received. Registrar of this Tribunal was directed to remind the respondents to submit comments before the next date of hearing and it was mentioned that if no report was received, the case would be heard by invoking Rule 19 of the Punjab Service Tribunal Procedure Rules, 1975. On 13‑4‑1985, the case was taken up and it was found that no comments were filed by the respondent on that date also and compelled to proceed under Rule 19 of the Punjab Service Tribunal Procedure Rules, 1975, due to non‑co‑operative attitude of the respondent.

6. Learned counsel for the appellant has submitted that the order of dismissal was ex parts order and the appellant had not been heard which was against the principle of natural justice. Learned counsel for the appellant drew attention of this Tribunal to the effect that the observation of the competent authority that the appellant was duly served, was without any foundation as the service was nothing but ficticious (fake). It was further argued that leave application of the appellant was duly certified and countersigned by the Medical Superintendent, therefore, under the rules, the same could not be refused. Learned counsel for the appellant has vehemently argued that the appellant submitted appeal before the learned I.-G.P., which was detailed one and stress, was laid on the fact that the medical certificate issued by Dr. Muhammad Iqbal M.B.,B.S, M.C.R.P. (England), Sheikhupura, was duly countersigned by the Medical Superintendent of the same place. It was further argued that no service was effected upon the appellant as were evident from the affidavits of Amir Ali Bhatti, Chairman, Ushr‑Zakat Committee, Jhok Chandaran and Nausher Lambardar. Jhok Chandaran, who had categorically stated that the appellant remind present during his ailment at the village. Learned counsel for the appellant has also relied on the statement of the said respect-able that the appellant had no brother by the name of Ghulam Hussain, on whose service was stated to have been effected and thus claimed that Ghulam Hussain was fictitious person and service too was fabricated. He forcefully argued that Constable had not visited the village and remained at Lahore. He has relied on the affidavits of Amir Ali Bhatti and Nausher appended with the appeal before the learned I.‑G. Police. Learned counsel for the appellant has also submitted that under no, law the appellant could be dismissed retrospectively from service as the impugned order would only take effect from prospectively and not retrospectively. In the end it was argued that the appellant maintains large family with aged parents and his dismissal has ruined his entire career and has brought the family at the verge of starvation despite the fact that the appellant has put in nine years of service in the Department.

7. On the other hand learned District Attorney has submitted that the appellant has been rightly dismissed for wilful absence and, therefore, no exception can be taken to the orders passed by the respondents. He has prayed that the appeal be dismissed.

8. I have given my anxious thought to the arguments advanced by the parties and find that it is on record that the appellant, who was on casual leave in the first instance fell ill and applied for medical leave on the stength of medical certificate issued by Dr. M. Iqbal, M.B.,B.S, M.R.C.P.(England), Sheikhupura, dated 17‑10‑1983 and advised him complete rest from 17‑10‑1983 to 31‑12‑1983, as he was incapacitated due to Sciation pain. I have further seen that the same certificate has been countersigned by the Medical Superintendent of the said District. In view of this established fact on record, it cannot be said that the appellant was not genuinely ill and has not applied for medical leave duly accompanied by medical certificate. In view of his un‑controversial position on record the only course left open for the S.P. Headquarters, Lahore would have been to call upon the appellant to appear before the Medical Board in case the S.P. was of the opinion that the certificate so issued by Dr. M. Iqbal, M.B.B.S. M.R.C.P. (England), Sheikhupura, was fake one and the Medical Superintendent has also countersigned without any justification.

9. It is further on record that appellant has relied on affidavits of Amir Ali Bhatti, Chairman, Usher Zakat Committee and Nausher Lambardar, Jhok Chandaran, in which they have stated that nobody in the name of Ghulam Hussain was the brother of the appellant and that Maratab Ali never visited the village to serve upon notice to the appellant. In view of these two affidavits on record, it was incumbent upon the appellate Authority to remand the case for further inquiry to verify these facts. This inquiry was necessitated on the ground that S.P. Headquarters, Lahore, who has relied on the report of Maratab Ali, Constable, with regard to the service so effected upon the brother namely Ghulam Hussain as alleged had neither summoned the said Msratab Ali before him nor recorded evidence so that it was proved that the report so made by Maratab Ali was fictitious, who was to be proceeded against for providing this fake document, what the learned S.P. did that he arbitrarily accepted the report of Maratab Ali and thus straightway dismissed him from service. Similarly when the case was before the learned additional I.‑G.P. with all these documents, which are now before this Tribunal, the justified course open to the authority was to probe into the matter for remanding the case for further inquiry to see the stand taken by the appellant, was correct or not. This Tribunal is in agreement with the learned counsel for the appellant that dismissal order cannot be passed in retrospectively manner and it will only be effective from the date when it is so passed.

10. In the above given circumstances of the case particularly when the respondents have failed to file any comments or to take any stand despite three reminders issued by this Tribunal, this Tribunal is left with no alternative but to accept the documents on record so produced by the appellant and accept the appeal.

11. The result is the appeal is accepted and ex parte order so passed against the appellant is quashed being against fundamental principle of natural justice with the direction that the appellant be re‑instated in service to clothe him the status of civil servant and proceed under the rules, if so desire. He will be entitled to all back benefits because his dismissal was in complete violation of the fundamental principle of natural justice as nobody can be condemned without being heard. There will be no order as to costs.

A.E. Appeal accepted

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