' JUSTICE (RTD.) ABDUL GHANI SHAIKH, CHAIRMAN.---This appeal is directed against the original order dated 16-7-2002 passed by respondent No.2, whereby appellant on account of availing self- granted leave, was awarded major penalty of removal from service.
2. Facts in nutshell giving rise to the present appeal are that appellant was serving as Radiologist, Sindh Employees Social Security Institution (hereinafter refereed to as SESSI) and posted at K.V.
Social Security Hospital, Karachi. On 10-8-2001 he had applied for two years extraordinary ex- Pakistan leave w.e.f. 20-9-2001 as he intended to enter into a contract of job in Saudi Arabia. The said request was, however, turned down by the Commissioner, SESSI as per letter dated 19-9-2001.
He repeated such application to the Chairman, Governing Body, SESSI on 1-10-2001, which too was disallowed as per letter dated 3-11-2001. Appellant, however, without permission proceeded to Saudi-Arabia and joined job there. He thus remained absent unauthorizedly w.e.f. 19-11-2001. A call up notice dated 7-12-2001 followed by show-cause notice dated 16-1-2002 were issued to him, but returned undelivered. Therefter, another show-cause notice 'dated 26-2-2002 was issued to appellant, which the appellant replied from Saudi Arabia on 11-3-2002 and requested for regularization of his absence and extension of leave till 15-10-2002. His said request was not acceded to by the competent authority. Ultimately, by order dated 16-7-2002 appellant was awarded major penalty of removal from service. Feeling aggrieved, he preferred departmental appeal addressed to respondent No.1 on 12-8-2002. On getting no response within stipulated period of 90 days, appellant filed the instant appeal with a prayer to setaside the impugned order and for reinstatement in service with full back-benefits converting his so-called absence into leave.
3 In their joint written statement, respondents controverted the pleas raised in the memo. Of appeal. They also challenged the very maintainability of the appeal on the ground that appellant is not a civil servant and that the appellant before filing the instant appeal has not availed the departmental remedy before competent forum viz. Chairman, Appellate Committee SESSI/Secretary, Govt. Of Sindh Labour Department, Karachi.
4. In support of appeal, it was mainly contended that appellant belongs to shia community and a large number of Doctors belonging to Shia community have already been killed. The panic was prevailing in the society and there was emergency situation and that the police cautioned many of the Doctors including appellant to adopt security measures as the appellant was also on the hit list and that seeing no other alternate appellant arranged job on the basis of his qualification/experience for himself in Saudi Arabia and that it was for that reason that appellant had applied for two years ex-Pakistan emergency leave w.e.f. 20-9-2001 but appellant's request without any legal and lawful justification was regretted on administrative grounds. Further, it was submitted that appellant repeated his requests for grant of said leave but that too was not acceded to. However, he approached the higher authorities for the said purpose and in the meantime appellant succeeded in getting job in Saudi Arabia and signed such contract for job with the. Ministry of Health, Kingdom of Saudi Arabia. Thereafter appellant proceeded to Saudi Arabia with a sanguine hope that leave applied for will be granted in due course of time. Learned counsel further urged that instead of granting leave, the appellant was proceeded with departmentally and was awarded major penalty of removal from service. He urged that no regular inquiry was conducted, therefore, under the law the impugned penalty is neither maintainable nor sustainable. In support of his contentions, he relied upon 1996 SCMR 201 and 1997 PLC (C.S.) 242.
5. In rebuttal, learned counsel for respondents while referring to the written statement supported the impugned, order. He urged that appellant despite rejection of leave, proceeded to Saudi Arabia and sought job there, which amounts to misconduct. Therefore, appellant was rightly awarded major penalty of removal from service, which calls for no interference and that the appeal being devoid of merits, incompetent and not maintainable, may be dismissed.
6. We have considered the above submissions, perused the case papers and have gone through the case-law referred to by the learned counsel for appellant.
7. The two legal contentions that appellant is not a civil servant and departmental appeal was addressed to a wrong forum, therefore, the instant appeal filed without availing departmental remedy is not maintainable have no force. There is no denial even from the respondents side that Provincial Government has the control, management and administration over the affairs of the SESSI, therefore, the employees of the SESSI are deemed to be civil servants within the purview of section 3-E of the Sindh Service Tribunals Act, 1973. As regards departmental appeal, it is by now a well-settled principle that if the departmental appeal is addressed to a wrong forum, it is the duty of that authority to forward the same to the proper appellate authority. In the instant case, the departmental appeal of appellant was addressed to the Chairman, Governing Body SESSI/Minister for Labour Sindh, Karachi, whereas the proper appellate authority as per learned counsel for the respondents is Chairman, Appellate Committee, SESSI/Secretary, Government of Sindh, Labour Department, Karachi, therefore, it was the duty of the Chairman Governing Body to forward the same to the Chairman, Appellate Committee. Reference is invited to the case of Rabnawaz Khan v.
Secretary Ministry of Defence and another, 1984 PLC (C.S.) 485.
8. Now coming to the merits of the case, we are not persuaded to agree with the contentions of learned counsel for the appellant that absence of appellant was neither willful nor deliberate but was the result of the circumstances that his life was in danger in Pakistan. Perusal of the record reveals that in his applications for grant of two years extraordinary leave, appellant stated that: he intend to enter into a contract of job in Saudi Arabia and thus to join the expatriate Pakistanis earning badly needed foreign exchange for Pakistan as every one of us knows that every unit of foreign exchange is 'much important for our country. However, appellant for the first time in his departmental appeal took an altogether different plea that he belongs to Shia community and that appellant was on the hit list as large number of doctors belonging to Shia Community were murdered and that appellant too was on the hit list, therefore, in order to save his life he arranged job for himself in Saudi Arabia and then proceeded there. It 1.'kettled law that a person cannot be allowed to raise a fresh ground before the appellate forum which has not been pleaded and raised earlier. Therefore, the appellant is estopped by his conduct and precluded from raising a new and fresh before the appellate forum. Under the law no one can be permitted a approbate and reprobate in the same breath.
9. Admittedly, without sanction of leave ex-Pakistan, the appellant had left the country. Legally, he could not do so. Fundamental rule 67 provides that leave cannot be claimed as of right and an application for leave sould not be anticipated as grant of leave. According to rules, regulation and office procedure, a civil servant requiring leave is supposed to apply formally for it and as a matter of principle he cannot and should not absent himself from office prior to sanction of leave. Mere filing of an application for leave ipso facto cannot be construed sanction of the leave. Prospective presumption have to base legal civil servant while leaving his headquarter/office can do so with prior approval of the competent authority for avoiding incurrence of subsequent complications. It is an established principle deeply embedded in the rules and generally practised in all offices.
Reference is invited to the case of Mumtaz Ali Khan v. Secretary, Ministry of Industries and Production, Islamabad, 2001 PLC (C.S.) 692. In the instant case d. Spite the fact that appellant's application for ex-Pakistan leave was turned down twice, yet he by taking law in his own hand left Pakistan. In" Mumtaz Ali's case (supra), it was further observed that: view the aforesaid facts, the appellant is not available in Pakistan, proper course opened to the appellant was that he should have himself released from the Authority and then should have gone abroad for service but he appears to have taken the law in his own hand and, thereby absented himself from service of the respondents which he could not do so under the law. It is a height of misconduct and in violation of service agreement with the administration/respondents. None can be allowed to demonstrate like that legally."
10. As regards contention that no regular inquiry was conducted, therefore, major penalty awarded to appellant has no legal sanctity, it is suffice to say, that admittedly appellant had gone abroad without prior permission and getting the leave sanctioned and remained fugitive from his duties for a considerable long period. Therefore, in view of admitted facts there was no necessity to conduct inquiry as the holding of inquiry would not have mane any difference.
11. A Government/Civil servant, under the law, is not as free as he considers himself to be so. It is a basic requirement of law which now a days is being grossly misused so much that Government servants do not E bother to get the leave sanctioned and then proceed on leave. Such conduct renders the Government/Civil servant thereby to disciplinary proceedings. The conduct demonstrated by the appellant appears to be contumacious and unauthorized and is deprecated.
The Superior Courts have also taken a very serious view of wilful absence from duty by subordinates. In this respect reference is invited to the cases of Ex-constable Muhammad Farooq v.
Inspector General of Police, Islamabad and another, 1988 SCMR 477 and Zurghan Shah v. Surgeon General and another, 1988 SCMR 540. By leaving Pakistan without sanction of leave ex-Pakistan by the competent authority, the appellant was guilty of misconduct. There appears to be no justification for allowing such an irresponsible officer/Doctor continue in the department.
12. For the aforesaid reasons, we are of the considered opinion that appeal is devoid of any merit.
However, the major penalty of removal from service is bit too harsh, keeping in view the nature of conduct. The punishment of removal from service thus hereby converted into compulsory retirement. With the above modification in the penalty, the appeal is dismissed. The parties, are, however, left to bear their own costs.
13. Announced in open Court. Given under our hands and seal of the Tribunal, this, 31st day of August, 2004.