Full Judgment Text & Judicial Ruling

2007 P L C (C.S.) 1018

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

WAPDA through Superintending Engineer and others

Versus

MANZOOR HUSSAIN, EX-ALM

Civil Appeal No.1390 of 2000, decided on 10th February, 2005.

(On appeal from the judgment, dated 18-7-1998 passed by Federal Service Tribunal, Lahore in Appeal No.1032-L of 1997).

Pakistan WAPDA Leave Rules for WAPDA Employees, 1982---

----R. 27---Service Tribunals Act (LXX of 1973), S.4---Fundamental Rules, R.18---Constitution of Pakistan (1973), Art.212(3)---Absence without leave for 21 years---Belated issuance of show-cause notice---Effect---Employee joined service of WAPDA in 1974 and in the year 1976, he proceeded on leave and remarried absent for 21 years---Employee was issued show-cause notice on 30-9-1997 and his services were terminated in the same year---Federal Service Tribunal on appeal reinstated employee in service after treating his prolonged absence without leave as extraordinary leave without pay on ground that WAPDA was responsible for lapses for not taking notice of such absence at the earliest---Validity---Action of WAPDA against employee was though belated but it was the employee who had to justify his absence of not one day but of more than two decades---Absence of employee was so glaring and unjustifiable that there was no need even to hold an enquiry---Belated action taken by WAPDA was perfectly justified---Employee being in service of an authority, he could not be allowed to rejoin his service at his own pleasure and convenience---Rule 27 of Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, clearly provided that even by combination of different types of leaves, an employee was to cease to be an employee, if he remained absent beyond a prescribed period---Even under Rule 18 of Fundamental Rules, a civil servant who remained continuously absent from duty with or without leave for a period of more than five years ceased to be in government service---Issuance of show-cause notice could at the most be dubbed as a much belated action but this lapse did not in any case regularize an absence of 21 years without leave---Appeal filed by WAPDA was accepted.

Ch. Ghulam Hussain Ghulshan, Advocate Supreme Court for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 10th February, 2005.

JUDGMENT

SARDAR MUHAMMAD RAZA KHAN, J.--- This appeal, by leave of Court, is filed by WAPDA through the Superintending Engineer and Executive Engineer Jhang against the judgment dated 18-7-1998 of the Federal Service Tribunal whereby, on acceptance of .his appeal, Manzoor Hussain Ex-Assistant Lineman was reinstated in service treating his prolonged absence without leave of 21 years as extraordinary leave without pay.

2. The background gathered from the record is that the respondent joined service in 1974. Before completion of two years of service and in the year 1976 he proceeded on leave. Again; it is gathered from record and in the absence of any evidence to the contrary, that he surfaced after a long time and tried to report back on duty. He was issued a show-cause notice and eventually, his services were terminated on 30-9-1997.

3. The learned Tribunal despite having accepted that the respondent was absent from duty for a long period of 21 years, held the Department responsible for the lapses and for not taking notice of such absence at any early stage or at the earliest. We are afraid this reasoning of the Tribunal was neither plausible nor reasonable because even if the action of the Department is belated, it was the respondent who had to justify his absence of not one day but of more than two decades. The absence was so glaring and so unjustified that there was no need even to hold an enquiry. The action of the Department, though belated, was thus perfectly justified. It is the service of an authority and hence one could not be allowed to rejoin at his own convenience and pleasure.

4. Even, the Government rules do not permit a civil servant under F.R. 18 to remain continuously absent from duty with or without leave for a period of more than five years and niter the passage of five years, the Government servant seizes to be in the Government employment.

5. Though the aforesaid rule is applicable to civil servants yet WAPDA has its own leave rules as the Pakistan WAPDA Leave Rules for WAPDA Employees, 1982. Rule 27 clearly provides that even by combination of different types of leaves, an employee shall cease to be an employee, if he remains absent beyond the said period. The rule is with regard to the leaves duly applied for whereas in the instant case the absence of respondent was without leave. The respondent had ceased to be an employee of WAPDA long, long ago.

6. The issuance of show-cause notice could at the most be dubbed as a much belated action but this lapse does not in any case regularize an absence of 21 years without leave.

7. Consequently, the appeal is accepted, the impugned judgment dated 18-7-1998 of the Federal Service Tribunal is set aside and the order of Departmental Authority is restored.

H.B.T./W-7/SC Appeal accepted.

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