Full Judgment Text & Judicial Ruling

2006 P L C (C

2006 P L C (C.S.) 973

[Punjab Service Tribunal]

Before Muhammad Afzal Member-1 and K.B. Abid Member-111

FAIZ AHMAD EX-CONSTABLE NO.2411

Versus

CAPITAL CITY POLICE OFFICER and another

Appeal No.2017 of 2005, decided on 3rd May, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service on charge of wilful absence from duty---Period of absence of appellant had been regularized by concerned Authority by granting him leave without pay for the same period---When period of absence stood regularized by same Authority who had passed orders of dismissal from service through grant of leave without pay, the very ground for ousting appellant from service, had vanished---Impugned orders were set aside and appellant was reinstated in service and the period he remained out of service, was to be considered as leave of kind due.

LDA and others v. Muhammad Nadeem Kachllo and another 2006 SCMR 434 ref.

Mehmood Ahmad Qazi for Appellant.

Rana Muhammad Yasin District Attorney for Respondent. Date of hearing: 3rd May, 2006.

JUDGMENT

MUHAMMAD AFZAL (MEMBER-I).---Appeal is directed against the orders, dated 19-7-2005 vide which the appellant was visited with punishment of dismissal from service on charges of wilful absence from duty. Appellant tiled departmental appeal. However, the same failed to elicit positive response from departmental appellate authority and the same was rejected through impugned orders, dated 11-8-2005 hence present appeal in this Tribunal.

2. Learned counsel for the appellant has argued the case in prolixity pointing out that in the first place, allegations of wilful absence from duty was unfounded as the appellant had actually been ill quite seriously and had submitted medical certificates in proof of his illness. Secondly, he had not been absent from duty continuously and the authority had wrongfully calculated the period of absence from duty as seven months and 12 days. It is pointed out that the Authority, while passing the impugned orders of dismissal from service of the appellant, had also, through the same orders, regularized the period of alleged absence from duty, by granting the appellant leave i.e. leave without pay. It is pointed out that it was now settled law that when period of absence was regularized by granting leave for the same period, the grounds for dismissing a civil servant ceased to exist. Learned counsel has in that connection placed reliance on many judgments of this Tribunal and particularly, on the latest judgment of the Hon'ble Supreme Court of Pakistan reported as 2006 SCMR 434 (LDA and others v. Mohammad Nadeem Kachillo and another). It is finally stated that the appellant was not a habitual absentee and that prior to this incident, appellant had never been proceeded against on grounds of wilful absence from duty etc.

3. Respondents have opposed the appeal pointing out that the appellant had been absent from duty from time to time and finally he remained absent from duty for more than three months continuously which was viewed seriously and the appellant was proceeded against in accordance with law. It is further pointed out that absence of the appellant being proved from record, he was awarded punishment of dismissal from service which he deserved as per facts and circumstances of the case.

4. We have considered averments from both sides and gone through the relevant record as produced before us. Appellant has contended that he had remained under an attack of handicapping illness and that he had submitted medical certificates in proof of his illness, in time. The respondents have however, denied having received any medical certificates from him. Without entering into the controversy whether the appellant had submitted medical certificates and whether he was actually ill during the period of alleged absence, we do agree with learned counsel for the appellant that as per law already settled by the Hon'ble Supreme Court of Pakistan (2006 SCMR 434), when the period of absence stood regularized by the same authority who had passed orders of dismissal of the appellant from service through grant of leave without pay, then the very grounds for ousting the appellant from service, had vanished. The same view has been held by this Tribunal with consistency in many judgments in identical appeals. Therefore, considering the sole fact that the period of absence of the appellant had been regularized by the concerned authority by granting him leave without pay for the same period, we accept the appeal and set aside the impugned orders. Appellant shall stand reinstated in service and the period he remained out of service shall be considered as leave of the kind due.

H.B.T./10/PST???????????????????????????????????????????????????????????????????????? Appeal accepted.

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