RASHID ALI MIRZA, MEMBER- The appellant who was working as Karkun in the respondent's Corporation since 1988 had a chronic medical history of being kidney patient. He was treated while in the employment at Karachi and was also operated upon. He applied for Ex-Pakistan leave for medical treatment and was initially granted leave for six months w.e.f. 18.1.1998 to 9.7.1998. He requested for extension of further leave on the same ground which was granted upto 20.10.999. On 22.6.2000 when the appellant in terms of letter dated 26.2.2000 came back to in duty at Karachi, he was charge sheeted on 10.5.2000 alleging therein that he had proceeded on Ex-Pakistan Leave w.e.f. 18.1.1998 to 9.7.1998 and got it extended upto 20.10.1999. He was advised vide letter dated 7.6.1999 that no further extension in leave will be considered and he had to resume his duty from 21.10.1999 but he failed to do so. He is as such absent from duty w.e.f. 21,10.1999 without permission and information. He was asked to submit his explanation within stipulated time otherwise action will be taken against him on presumption that he admits the charge and has no defence to offer against the charge levelled against him. Thereafter, he was dismissed from service vide order dated 25.10.2000, against which he preferred departmental appeal stating therein that he is a patient of kidney infection (right side kidney) since last 10 years due to which he had two kidney operations in Karachi at Karachi National Hospital, in 1994 and at Agha Khan Hospital in 1996.
Besides above operations a number of tests and check ups were carried out at different medical centers and clinics during this period till January 1998, but he could not be cured, therefore, he requested concerned Medical Personnel's of K.E.S.C, for sending him abroad for his medical treatment, but he was told that procedure for overseas treatment is too lengthy and may take a long time and due to his aggravating kidney disorder, he decided to go abroad for his treatment of his own expenses, as such he applied for Ex-Pakistan Leave with the intention to go to Sweden for his treatment. Het stated that he proceeded to Sweden on 18.1.1998 after he was granted Ex- Pakistan Leave by KESC for seven months w.e.f. 18.1.1998 to 9.7.1998. He stated that after arrival at Cutenburg City Sweden he approached Dr. Lars Karlson on Hsutra Sjukhus Hospital, who after examining him advised a number of tests and check ups from time to time and he was hospitalized for many times for the treatment of his kidney and disorder of liver and stomach. He stated that his treatment continued till October, 1999. He stated that in October, 1999 when his physical order could not be cured through medicines, then Dr. Lars Karlson operated his right kidney and advised him for complete rest and treatment at his Hospital till 30.6.2000. He stated that upon expiry of his granted leave he forwarded leave on Medical ground and the same were granted by the Management of K.E.S.C. He stated that in the month of June, 2000 he received phone from his father from Pakistan that KESC has issued a charge sheet against him, as such he (father of the appellant) advised him to reach Pakistan immediately, though the appellant was advised rest by Dr. Lars Karlson upto 30.6.2000 but upon receiving his father's phone, he prepared his immediate departure for Pakistan and arrived at Karachi on 18.6.2000. He stated that all the expenses were borne by him and that he went Sweden for treatment due to his serious condition, for which he was granted Ex-Pakistan leave by KESC. He overstayed in Sweden only on the advice of Dr. Lars Karlson as such tie was not absent from duties with intention. The departmental appeal of the appellant dated 20.11.2000 was rejected vide order dated 20.9.2003, hence he filed the present appeal under Section 4 of Service Tribunals Act, 1973.
2. The respondents filed parawise comments and have supported the impugned order to be justified.
3. We have heard the learned counsel for both the parties and have also perused the record.
4. The learned counsel for the appellant stated that the appellant who was a kidney patient for the about 10 years was awarded a penalty of dismissal from service vide order dated 25.10.2000. He further stated that major penalty cannot be imposed upon an accused employee without holding fair, proper and impartial inquiry into the matter which was absolutely necessary but no such fair and independent inquiry was held into the allegations against the appellant and he was not personally heard as required under the law. These are grave irregularities, which necessitate to set aside the impugned order, but the learned counsel for the appellant stated that he does not press the appeal on merit, but he has earnestly urged that the penalty of dismissal of the appellant, just for unauthorized absence, is an extremely harsh penalty. He submitted that the period of absence of the appellant could be changed into leave without pay or at least some minor penalty could have been imposed upon the appellant, he requested that major penalty of dismissal of the appellant be modified and converted into some appropriate minor penalty taking into consideration the fact that appellant had an unblemished long service of about 14 years.
6. The learned counsel for the respondents has not been able to explain how such a harsh punishment was justified. On the other hand, the learned counsel for the appellant has not pressed the appeal on merit. He has simply prayed for modification of the major penalty of dismissal of the appellant from service to some minor penalty.
7. We are inclined to accept the plea of the appellant for the reasons that the
5. We have considered the arguments of both sides and perused the record of the case. appellant had a long service of 10 years, who had been dismissed from service only on the ground of unauthorized absence from duty. The respondents had not shown, if due to absence of the appellant the respondents had to sustain any kind of loss or suffered in any way. In our opinion, for mere unauthorized absence, a major penalty of dismissal from service imposed upon the appellant was extremely harsh one and not commensurate with the petty misconduct borne out of the absence of the appellant. We, therefore, accept the request of the learned counsel for the appellant and modify the penalty of dismissal of the appellant from service to that of withholding of two increments for a period of two years without any cumulative effect. We have modified the penalty of dismissal of the appellant from service on the compassionate ground also as the appellant, who is a petty employee of respondent No.1, had been litigating unsuccessfully before this Tribunal since long. The period of absence of the appellant be treated as leave of any kind that may be due to him. The appellant be reinstated in service.
8. No order as to costs.
9. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under rule 21 of Service Tribunal.