NASRULLAH KHAN Versus GOVERNMENT OF THE PUNJAB
S. ABDUL JABBAR KHAN (CHAIRMAN). ‑Raja Nasrullah Khan, S. D. O. Public Health Engineering Department, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Government of the Punjab through the Secretary, Housing and Physical Planning Department, Lahore, as respondent.
2. By virtue of this appeal he has prayed that the order of respon dent, dated 27th July, 1982 as modified by 14th February, 1982 be set aside and further the suspension of the appellant beyond three months from ist October, 1978 be also declared as without lawful authority and respondent be directed to treat the appellant on duty for the said period and also pay him the full salary for the said period.
3. Brief facts of the case are that the appellant joined the Public Health Engineering Department as S. D. O. in 1970. In the year 1978, when the appellant was working as S. D. O. Public Health Engineering Sub‑Division at Murree District Rawalpindi, he developed a serious intestinal trouble due to which he could not perform his duties efficiently.
In view of his illness he applied for sick leave to the Executive Engineer, Public Health Engineering Division, Rawalpindi, who, vide docket No. 437/S. T., dated 13th August, 1978 asked the Medical Superintendent, District Headquarter Hospital, Rawalpindi, to examine the appellant, as the appellant was in serious trouble and could not proceed to Rawalpindi. He reported himself to the Medical Officer, Civil Hospital, Murree, on 14th August, 1978 for immediate medical aid. He was given medical aid on the said date but also directed him to report to the District Head quarter Hospital, Rawalpindi for further treatment. Next day the appel lant proceeded to Rawalpindi and reported himself to the Medical Superin tendent, District Headquarter Hospital, as directed earlier. He was thoroughly examined by the said Medical Superintendent and it was diagnosed that the appellant was suffering from Intestinal Colitis and was recommended leave for four weeks, vide Certificate No. 40/7192/M. B. dated 15th August, 1978. The pain from which the appellant was suffer ing became very acute and he was confined to bed for the next three days. Unfortunately during his absence due to illness, a massive land slide occurred on 15th August, 1978 near the main gate of 12 Division Head quarter at the Mall and thus water supply was disturbed due to breakage of water pipe. However, this damage was got repaired by the Executive Engineer and the water supply was restored on 17th August, 1978 two days later. When the appellant learnt this situation, he rushed to Murree, resumed his duty and worked till 2ist August, 1978 and then submitted his application for leave for four weeks to which he was entitled under medical advice. However, the X. E. N. as well as Superin tending Engineer, Public Health Engineering, Rawalpindi called his explana tion for absence from duty from 15th August, 1978 to 18th August, 1978. The appellant submitted his explanation to the said notice, the authority was not satisfied and the appellant was placed under suspension from ist October, 1978. The appellant was served with a show‑cause notice on 11th March, 1980, on the charge of absence from duty as well as break down of water supply at Murree from 15th to 18th August, 1978. The appellant submitted his reply on 24th March, 1980 giving detailed facts supported by documentary evidence. Mr. Feroze‑ud‑Din, Deputy Secretary (D), Housing and Physical Planning Department, was appointed as Authorised Officer who served a show‑cause notice on the appellant on 26th October, 1980 repeating the same charges mentioned above. Appellant again submitted his reply to the said show‑cause notice. A thorough enquiry was conducted by the said Mr. Feroze‑ud‑Din, Authorised Officer on 3rd December, 1980. By a detailed inquiry report, the appellant stood exonerated from all the charges. Despite this situation, the appellant was not informed of the result of the inquiry and remained under suspension from ist October, 1978 onward although the extension of suspension period had to be approved by the next authority after the lapse of three months. The facts of the case, as they are the appellant was again served with a show‑cause notice i. e. for the 3rd time and the appellant again submitted reply. This time the appellant was awarded punishment of stoppage of three increments without cumulative effect under rule 4 (a) (t) of E & D Rules, 1975, by the competent authority and the suspension order dated ist October, 1978 was withdrawn by a separate order dated 27th July, 1982. The appellant filed a representation under rule 16 of E & D Rules, 1975, against the order, dated 27th July, 1982. The review petition was partially accepted and the minor punishment of stoppage of three increments was reduced to one increment without cumulative effect. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has addressed a very lengthy arguments while recounting the chequered history of this case and has high lighted the following points :‑
Once Mr. Feroze‑ud‑Din has been appointed as Authorised Officer and had conducted a thorough inquiry into the matter, his recommenda tions should have been accepted and the appellant should have been exonerated. According to the learned counsel Mr. Feroze‑ud‑Din exercised the powers of Authorised Officer as delegatee of the respondent, thus, the same could not be exercised by the respondent again by assuming the powers of Authorised Officer. Learned counsel for the appellant has elaborated further that the first show‑cause notice, dated 11th March, 1980 stood revoked by implication when the respondent appointed Mr. Feroze‑ud‑Din as Authorised Officer and directed him to proceed against the appellant, therefore, no fresh show‑cause notice could be issued and impugned order could not be passed on the basis of first show‑cause notice, dated 11th March, 1980 which already ceased to exist. In this way according to the learned counsel for the appellant serious illegality had been committed in the procedure. For this purpose he has relied on 1982 P L C (C. S.) 795.
6. With regard to the merits of the case, the learned counsel for the appellant has submitted that the appellant was genuinely ill and he had been recommended medical leave with rest for 4 weeks, therefore, by no stretch of imagination, he could be considered an absentee without leave. According to the learned counsel, it was the sense of duty on the part of the appellant, which compelled him to forego the said concession and he voluntarily reported back to duty despite his illness, in order to see whether he could be of any assistance for the restoration of water supply to 12 D. I. V. at Murree. It has also been emphasized that the break down of water supply was an act of God, beyond the control of the appel lant or any one else. It has been argued that it is on the record that such break down occurred due to massive landslide which damaged the water supply pipes and destroyed the water line altogether. In this manner it has been submitted that the appellant cannot be held guilty under any circumstances, for the act of God, which occurred during his absence, when he was confined to bed. Learned counsel has also reiterated hi; stand that the appellant had committed no act of insubordination as he positively appeared before the Medical Officer Murree as well as before the Medical Superintendent, District Headquarter Hospital, Rawalpindi and thus in no way was guilty of any misconduct. He has also high lighted the affair of the suspension of the appellant, which according to him, continued for full three years without any justification and has urged that the authority which kept the appellant suspended for this long period failed to get approval for further extension from the next superior as laic down under the rules. According to the learned counsel no body cat remain under suspension indefinitely and it was incumbent upon the authority to see that the period of suspension is extended after every three months period by the next higher authority.
7. On the other hand learned District Attorney has adopted the parawise comments filed by the respondent and has submitted that the appellant has been punished for his negligence for his failure to make alternative arrangements for supply of water to 12 D. I. V. when the land slide occurred. According to the learned District Attorney, when he was told by the X. E. N. to make such arrangement, he failed to do so, and therefore, he was guilty of misconduct.
8. We have given our anxious thought to the arguments so advanced by the parties and have carefully perused the record of this case which has been submitted in the form of parawise comments. We are at a loss to understand that when the respondent has admitted the pleadings from paras. 7 to 15, which includes the very material allegation that the appellant was exonerated by Mr. Feroze‑ud‑Din, who was appointed as Authorised Officer by the respondent, then how can it be stated on their behalf that the appellant was guilty of misconduct. We are also conscious of the reply of the respondent in his last paragraph of the parawise com ments, in which the respondent has, laid stress on an event viz. the order of the X. E. N. to the appellant for making arrangement of water supply. We have taken pains to loot into the record of this case to verify this statement. There is hardly any order which could substantiate that the appellant was called upon by the X. E. N. after the landslide and told that he should make alternate arrangement. Strangely enough the case of the respondent itself is that the landslide occurred, when the appellant was absent from duty on 15th August, and continued as such till 18th August. This is very clear from language of charge No. 2 as well as charge No. 1. On the other hand it is on the record in the form of documentary evidence that the appellant did apply for medical leave and did appear before the Medical Officer, Murree as he was suffering from acute pain and could not proceed to District Headquarter Hospital, Rawalpindi, which be was directed to do so under a valid docket. It is also on the record that the appellant did appear before the Medical Superintendent on the 16th August at Rawalpindi and was advised four weeks complete rest. It also cannot be denied by the respondent that the appellant did join the duty from 21st August. 1978 despite he was ill in order to see that be could be of any assistance in restoring the water supply to 12 D. I. V. With these uncontrovertible facts on the record, it is very difficult for us to accept that the appellant was actually without leave or he was responsible for the landslide which had occurred due to natural phenomenon. It is a matter of common knowledge that land slides in Murree are so massive that the damage caused by such slides are unimaginable. The landslide destroy houses and obliterate buildings in no time. However, these are observations which are general in nature and may have no bearing on this particular case, but the very fact that a thorough probe was held into the matter by a senior officer like 114 r. Feroze‑ud‑Din and admission‑on the part of the respondent that the appel lant stood exonerated in the said probe, would clearly demolish the case of the respondent for imposing any penalty on the appellant. We also cannot help in making observation with regard to the unfavourable con duct of the respondent, as it is born on the record that the appellant remained suspended for complete 3 years for an affair in which he was exonerated after a thorough enquiry and for an act of responsibility so imputed to him which in fact was an act of God.
9. In view of the admission of the respondent in his parawise com ments to the allegations made in paras. 7 to 15 and the very fact that the appellant was absent from duty due to illness and was entitled to medical leave for at least four weeks recommended by the Medical Superintendent, District Headquarter Hospital, Rawalpindi, we do not find any force in the impugned order, which to our considered mind, is unwarranted as well as unjustified.
10. The result is we accept the appeal, set aside the impugned order. With regard to the period of suspension for full three years, we will direct the respondent to look into this matter and see whether the initial suspen sion period was duly approved for extension or not. In case it is found by him on the record that such like extensions were not accused, he is directed to condone the period and treat the appellant on duty during the said period of suspension as ultimately he has been reinstated by him and the suspension order has been annulled. However, there will be no order as to costs. Judgment be communicated to the parties.
M.I. Appeal accepted.