S.S.Sandhawalia, J. - (1.) WHETHER the provisions of Rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, are mandatory in nature is the primary question which falls for determination in this; second appeal which is before us on a reference.
(2.) DR . Kartar Singh Grewal was a member of the P.C.M.S. Class I service and was due to superannuate on the 1st of September, 1972. However, long before that, departmental proceedings on six charges of corruption were commenced against him in July, 1968. The Enquiry Officer found him guilty of the following two charges, whilst exonerating him on the remaining four: 1. That on 1st September, 1967, Dr. Grewal, obtained Rs. 1,000 as illegal gratification from Shri Sukhminder Singh, son of Shri Gurdev Singh resident of village Kot Shamir for the medical treatment and operation of his brother Shri Gurcharan Singh; and 2. That on 25th September, 1967, the said Dr. Grewal obtained Rs. 10 as illegal gratification from Mrs. Savitri Devi, Teacher, for recommending extension of her maternity leave. The report of the Enquiry Officer was accepted by the Government and a notice dated the 15th of September, 1970, was served on the Respondent to show cause as to why he should not be dismissed from service. On a consideration of the explanation submitted by the Respondent, the Government took the view that some clarification was required on the effect of delay in the lodging of the original complaint against the Respondent and further whether the nonperformance of the operation for which the Respondent is alleged to have taken a bribe of Rs. 1,000, in any way affected the prosecution case. After complying with the necessary formalities a second Enquiry Officer was appointed in order to give his findings on the aforesaid two points. Before him, the Respondent on the 23rd of July, 1971, made a prayer that he should be allowed to summon further evidence but this was declined by the order dated the 26th of July, 1971, on the ground that no amendment of the charge had been made and the relevant witnesses had already been cross -examined at length. As the issue was more or less of a legal nature regarding the effect of delay and the performance of operation by another doctor, the parties were directed to cite law and argue the matter before the Enquiry Officer. Having heard the counsel for the parties on the issues aforesaid, the Enquiry Officer by his order dated the 9th of September, 1971, decided both the issues against the Respondent. The Government agreeing with the findings of both the Enquiry Officers served a fresh show cause notice against the Respondent for imposing the punishment of dismissal. After considering the reply filed by the Respondent in detail, the Governor of Punjab passed the dismissal order on the 28th of August, 1972. As the date of the superannuation of the Respondent was drawing close, the aforementioned order of dismissal was published in a Government Gazette (Extraordinary) on the very date of 28th of August, 1972. It is equally not in dispute that the Appellant State further took the precaution of having the order broadcast from the Jullundur All India Radio and further had it published in the 'Tribune' before the 1st of September, 1972.
(3.) MEANWHILE up to the 22nd of August, 1972, the Respondent attended to his duties in the office but apparently having got some wind of the action impending against him he went on a day's casual leave on the date aforementioned. Thereafter he applied for extension of that leave but it is the common case that the sought for extension in leave was never sanctioned by the competent authority. Persistent attempts to personally serve the Respondent with the order of dismissal after the 28th August, 1972, forthwith were made on behalf of the Appellant State at all his known addresses. A vigorous attempt to trace him was made both at Patiala and Ludhiana but it appears that the Respondent managed to evade such service effectively and it was not till the 2nd of September, 1972, that he was served personally. This, however, was obviously after his date of superannuation. Subsequently the order of dismissal was received by the Respondent through registered post on the 7th of September, 1972, which in fact had been despatched from office on the 1st of September, 1972.;