' RANA BHAGWANDAS, J.--- Petitioner Government of Sindh seeks leave to appeal against judgment of Sindh Service Tribunal (hereinafter referred to as the Tribunal), dated 26-6-2003 by majority of two to one against the dismissal of the respondent from service for his wilful absence from duty with effect from 29-9-2000 to 2-9-2001.
2. Petitioner was serving as Managing Director, Sindh Tourism Development Corporation. He proceeded on three days casual leave with effect from 26-9-2000 to 28-9-2000 on the ground of ailment of his sister. It is his case that on reaching his native village in Taluka Dokri, District Larkana, he suffered an attack of paralysis on 29-9-2000 and his nephew sent such intimation to the Secretary, Culture and Toursim Department through application, dated 10-10-2000. It is averred that he himself sent an application for leave on medical grounds and asked for its extension from time to time accompanied by medical certificates but he received no response. When on 3-9-2001, he reached his office in order to resume his duties he was informed that vide order, dated 7-8-2001 he had already been dismissed from service. He preferred a departmental appeal to the Governor Sindh, which was rejected and such order was communicated to him vide letter, dated 17-6-2002.
He, thereafter, approached the Tribunal for setting aside the dismissal order as well as the order passed on his representation.
3. Case of the petitioner Government, as per its written statement and the documents placed on record, appears to be that on 26-9-2000 respondent had applied for four months earned leave on private affairs but his department had recommended the same for one month only. On the advice of S&GAD, he was asked to furnish leave application on prescribed pro forma for earned leave and leave admissibility certificate vide memorandum, dated 10-11-2000 at his residential address but he did not respond and deserted his duties. Respondent was, therefore, directed vide letter, dated 21-11-2000 to report for duty immediately or to face disciplinary action under Government Servants (Efficiency and Disciplinary) Rules, 1973. Thereafter, a show-cause notice was issued to him by the Chief Secretary, Government of Sindh as Authorised Officer vide letter, dated 30-1-2001 stating that latter was of the opinion that in view of the following allegations, respondent was guilty of misconduct, as after submitting leave application for four months, department recommending for grant of one month earned leave, he had been absconding from his official duties without prior approval; that letter, dated 7-10-2000 was dispatched at his residential address with the direction to furnish pro forma of earned leave and leave admissibility certificate but he failed to do so; that he was again asked to report for duty vide letter, dated 21-11-2000 but he failed to respond within the stipulated period and lastly that it was observed through print media that he had proceeded abroad without obtaining ex-Pakistan leave and that there were sufficient grounds for taking disciplinary action against him. In the said letter, Authorised Officer also informed the respondent that it was decided that it was not necessary to have inquiry conducted through an Inquiry Officer or Inquiry Committee and, as such, it was proposed to impose upon him anyone of the penalties prescribed in Rule 4 of the aforesaid Rules. He was called upon to explain as to why proposed action should not be taken against him. As this notice could not be personally served on the respondent since his official residence in Clifton Karachi was found locked, the same was pasted on the outer door of his house by an employee of the department. Show-cause notice was then published in daily "Dawn", dated 28-3-2001 and after the issuance of a formal show-cause notice calling upon respondent to submit a reply within a fortnight and to appear in person before the Authorised Officer, he was dismissed from service as stated above.
4. After hearing parties, counsel, learned Chairman of the Tribunal, without touching the merits of the case in further details, remanded the case to the department for initiation of disciplinary proceedings afresh. Dismissal orders as well as order passed on departmental appeal were set aside and the respondent was directed to be reinstated in service. While Member-I of the Tribunal Mr. Yousaf Ali Mirza concurred with the findings of the Chairman, another Member of the Tribunal Syed Noor Ahmad Shah recorded a detailed note of dissent and after discussing' contentions of the petitioner at quite some length, dismissed the appeal by a separate note.
5. Learned Additional Advocate-General, Sindh, who appeared in support of the petition, vehemently contended that the respondent was guilty of gross misconduct as he remained away from duties for almost one year without obtaining any leave on the false pretext of being paralysed; that he did not at all communicate with his department and on finding out that he could not meet the charge or defend the dismissal order, manipulated medical certificates from private doctors in order to explain his unauthorized absence, that all conceivable efforts were made to serve the letters and show-cause notices upon him but he deliberately and wilfully kept away and avoided to respond to the same. Learned counsel also submitted that as per print media reports respondent had left for abroad without obtaining N.O.C. And ex-Pakistan leave from the Government and was, thus, guilty of gross misconduct, as such, the Tribunal exceeded its jurisdiction by setting aside the departmental orders lawfully made, hence this petition.
6. After going through the main judgment as well as the dissenting note recorded by a Member of the Tribunal, I am of the considered opinion that the questions raised in this petition involve interpretation of important questions of law and, thus, a fit case for grant of leave is made out. In this connection reference may be made to Muhammad Hanif v. S.P. Lahore 2003 SCM R 626, Tariq Mahmood v. Auditor General of Pakistan 2003 SCM R 1102, Zarghun Shah v. Surgeon General 1998 SCM R 540, Water and Power Development Authority v. Shan Elahi 1998 SCM R 1890. Since I am inclined to grant leave against the impugned judgment, there exists a good ground for suspension of the order of the Tribunal. It is ordered accordingly.
' SYED DEEDAR HUSSAIN SHAH, J.--- I have gone through the judgment rendered by my learned brother Mr. Justice Rana Bhagwandas, but with utmost respect, I am not in agreement with the view of my learned brother.
' The admitted facts of this case are that respondent Nazir Ahmed Soomro, Managing Director, Sindh Tourism Development Corporation, proceeded on 3 days casual leave w,e,f, 27-9-2000 to 29- 9-2000 due to illness of his sister. When he reached in his native village Usman Kaloro, P.O. Seehar, Taluka Dokri, District Larkana, he himself fell ill and suffered attack of paralysis on 29-9-2000. His nephew sent such intimation to the Secretary, Culture and Tourism Department, Karachi, through application, dated 10-10-2000. On slight recovery respondent himself sent such application for leave on medical grounds and for its extension supported by medical certificate as well as reports of the laboratory, which are available at pages 48 to 60 of the paper book. The aforesaid application was sent through Registered A.D. Cover (A.D. Receipt is available at page 46 of the paper book). The petitioners/ department did not issue any notice to the respondent through registered A.D. On his above-mentioned address. On 30-6-2001 the department served show- cause notice on the respondent (available at page 87 of the paper book) and its last para reads as under:--- "It is learnt through press media that you have left the country without grant of ex-Pakistan leave."
' It is further a matter of record that a statement of Chowkidar was recorded by Dispatcher/Junior Clerk that respondent at that time was not available at his given address of Karachi. During the course of arguments I - enquired from the learned Law Officer that on what data/information the department mentioned in show-cause notice that the respondent has left the country without obtaining ex-Pakistan leave; whether any material was available with the department in the shape of any air ticket, or boarding card or concerned flight details or immigration record etc. In order to show that he had left the country. Learned Law Officer candidly conceded that as the matter was reported in press, therefore, relying on the press report competent authority passed the dismissal orders. The source of the press report is not available on record, even the name of the reporter who published the report is not known. Moreover, the reporter was not even examined by the Inquiry Officer to verify the correctness of the report. The learned Law Officer was also asked whether refusal of leave or show-cause notice was sent to the respondent at the address given by him I e Village Usman Kaloro, P.O., Seehar, Taluka Dokri, District Larkana, he sated that no such notice was issued by the department under registered A.D. Cover. The department also did not hold a regular inquiry about the genuineness of the medical certificates as well as Laboratory reports submitted by the respondent. It is very strange to note that the respondent was awarded major penalty of dismissal from service without holding regular inquiry and without providing him an opportunity of personal hearing which, in my humble view, being against the principle of natural justice and law laid down by this Court. This Court has time and again observed that it is a fundamental rule of natural justice that nobody should be condemned unheard. In this regard references may be made to Jan Muhammad v. General Manager, Karachi Telecommunication 1993 SCM R 1440, Basharat Ali v. Director, Excise and Taxation 1997 SCM R 1543, Abdul Qayyum v. D.G. Project Management Organization 2003 SCM R 1110 and Shamas-ud-Din Khawaja v. Government of Pakistan PLD 2003 SC 187.
' In Jan Muhammad's case (supra) this Court held asunder:--- "(6) ...If it is decided that there should be enquiry either by Enquiry Officer or Enquiry Committee then procedure laid down in Rule 6 is to be followed and the requirements enumerated therein are that charge shall be framed and Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross-examine the witnesses and he can also produce witnesses in his defence. It appears that in the instant case this procedure as such was not followed in letter and spirit and witnesses were not examined in support of the charge. It was necessary for that reason that ultimately major penalty has been imposed upon the appellant."
' In Basharat Ali's case (supra) this Court observed as under:---
(11) By now it seems to be a well-settled principle of law that the question, as to whether a regular inquiry is to be held in a case of misconduct against an accused civil-servant/employee or not, will depend on the facts of each case. We may observe that while considering the above question we should keep in mind the fact that the concept that no person should be condemned unheard (i,e, audi alateram partem) has acquired new dimensions with the passage of time. Nowadays the Courts apply the above cardinal principle of jurisprudence more liberally even to the cases in which there is no statutory requirement of personal hearing. Furthermore, the right of personal hearing does not mean simpliciter hearing, but it should be fair. What is a fair hearing, it will depend on the facts of each case. There cannot be any general criterion of universal application."
' In Abdul Qayyum's case (supra) this Court held that:--- "Civil servant had been dismissed from service without establishing charge of misconduct by way of holding a proper inquiry and providing him opportunity of hearing............... "
' In Shamas-ud-Din Khawaja's case (supra) this Court held as under:- ' For imposing major penalty there must be ample convincing and reliable evidence placed on record which could safely go to prove charges levelled against civil servant and only then findings could be recorded."
' Where in the instant case the department due to its highhandedness passed the order of major penalty of dismissal from service of the respondent without holding regular inquiry and affording him opportunity of hearing. The learned Tribunal rightly set aside the aforesaid order allowing the appeal of the respondent with sound and cogent reasons and relying on the law laid down by this Court. The Tribunal further observed in para. 8 of the impugned judgment, which reads as under:-- - "For the above reasons and without touching the merits of the case in further detail, we are of the considered view that this is a fit matter to be remanded for initiation of disciplinary proceedings afresh. Accordingly, the impugned orders, dated 7-8-2001 and 17-6-2002 are set aside and the case is remanded to respondent No,1 to initiate departmental proceedings afresh purely in accordance with law and the observations made hereinabove. Meanwhile, appellant is directed to be reinstated in service to clothe him with the status of Civil Servant. The departmental proceedings so conducted shall be concluded within four months period from the date of receipt of copy of this judgment. So far intervening period is concerned, the same shall follow the outcome of departmental proceedings. Parties to bear their own costs."
' The impugned judgment of the Tribunal, in my humble view, is quite in consonance with the principles of natural justice, fairplay, equity and law laid down by this Court. Furthermore, the order of the learned Tribunal, in any case, shall not harm the interest of either party because the department/petitioner has been allowed to hold fresh inquiry in accordance with law.
' For the facts, circumstances and reasons mentioned hereinabove, I do not find any merit and substance in this petition, which is hereby dismissed and leave to appeal declined.
' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- I have heard learned Additional Advocate-General (Sindh) at length and have also gone through the judgment rendered by my learned brothers Mr. Justice Rana Bhagwandas, dated 20th October, 2003 as well as dissenting note by Mr. Justice Syed Deedar Hussain Shah carefully.
2. A perusal of facts and circumstances of the case reveals that respondent admits his absence from duty on account of his illness but he failed to substantiate the same by producing convincing evidence. It is well-settled principle of law that mere submission of application for leave by an employee to his department would not mean that leave has been granted in his favor and he is duty bound to inquire from the department himself about the fate of 'his request of grant of leave.
In instant case, respondent did not even bother to contact his department to know as to whether leave has been sanctioned or not in his favor and if it has come in his knowledge that despite of recommendation on his application leave has not been granted, it was his obligation to attend the office. Surprisingly, he left his duty on obtaining three days casual leave and statedly, thereafter, he left the country and went abroad perhaps under apprehension of his arrest on account of his alleged involvement in some criminal cases. Therefore, under these circumstances, I am of the opinion that contentions so raised on behalf of Government of Sindh need detailed consideration, as such I concur with the conclusion arrived at by my learned Mr. Justice Rana. Bhagwandas of granting leave of appeal.
Leave to .