' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--- Appellant Dr. Irshad Ali Soomro who was basically an employee of Sindh Seed Corporation and Serving as Director, Production and Processing, was by Notification , dated 25-2-1991 appointed as Vice-Chancellor, Sindh Agriculture University, Tando Jam with immediate effect for a period of four years during the pleasure of the Chancellor/Governor of Sindh. On completion of his tenure at the end of February, 1995, appellant was granted 180 days' leave (subject to title) by the Governor of Sindh/Chancellor vide Notification dated 15-2-1995. However, after availing leave he failed to resume his duties at his parent department i,e, Sindh Seed Corporation despite repeated notices followed by show-cause notices.
Accordingly, vide order, dated 10-1-1996 appellant was awarded major penalty of removal from service as per clause 23.2.3 of the Sindh Seed Corporation Service Rules/ Regulations. Feeling aggrieved, appellant preferred departmental appeal to the Honourable Governor of Sindh, Karachi on 14-7-2000, which was upheld and vide Notification dated 11-7-2001 appellant was reinstated in service. However, the intervening period from 14-5-1995 to the date of joining was treated as "extraordinary leave without pay". Being dissatisfied with the IInd portion of Notification dated 11-7- 2001 whereby the intervening period has been treated as "Extraordinary leave without pay", appellant has filed the instant appeal.
2. In support of appeal, learned counsel for the appellant argued that the very punitive order, dated 10-1-1996 awarding major penalty of removal from service was mala fide and illegal and was passed on the complaint of the then Minister Agriculture/Chairman, Sindh Seed Corporation, as the appellant did not bow to Minister's illegal demands made through various letters. He submitted that before awarding major penalty to the appellant, the codal formalities were not fulfilled as neither any show-cause notice was served upon appellant nor any enquiry was conducted nor even opportunity of personal hearing was afforded to him. Learned counsel also contended that order awarding major penalty was passed by an incompetent person of B-19, whereas the appellant was /is in B-20, therefore, the order being coram non judice was not sustainable and was thus, set aside, and since the punitive order has been declared as illegal, mala fide and coram non judice by the appellate authority, the appellant is entitled to all back benefits. In support of his contentions, learned counsel has relied upon (i) 2002 PLC (C.S.) 1083, (ii) 2003 PLC (C.S.) 590, (iii)
2005 SCMR 678, (iv) Unreported judgment of Honourable Supreme Court of Pakistan passed in Civil Appeals Nos.1681 of 2003 and 1682 of 2003 (House Building Finance Corporation v. Syed Muhammad Ali Gohar Zaidi) dated 6-5-2004 and (v) Unreported judgment passed in Appeal No,154(K) of 1999 by the Federal Service Tribunal Karachi, dated 17-5-2005.
3. In rebuttal, learned counsel for respondent No,4 while supporting the impugned appellate order, dated 11-7-2001, argued that as a matter of fact the 180 days' leave granted to appellant vide Notification dated 15-2-1995 by the Chancellor/Governor of Sindh, was subsequently cancelled vide Notification dated 14-5-1995 and appellant was directed to .Report to his parent department, but appellant failed to return and resume his duties, despite repeated letters, notices,, show-cause notices etc. Ultimately, vide order, dated 10-1-1996 on account of appellant's continuous absence, he was awarded major penalty of removal from service. Learned counsel further contended that appellant remained quite mum for more than 4 years and then appeared and filed departmental appeal against order of removal from service to the Governor of Sindh and that his said appeal was upheld and appellant was ordered to be reinstated in service, however, his period of remaining absent was treated as "extraordinary leave without pay", as during the intervening Period he had not performed any duties, thus, the appellate order being legal, proper and justified calls for no interference. He added that appellant was simply allowed 180 days' leave, subject to title, and that he was never allowed ex Pakistan leave, but instead appellant without permission proceeded abroad and remained there for over five years, therefore, he cannot claim monetary benefits for the period he remained abroad unjustifiably and without permission. While referring 2002 SCMR 1034 and 2003 PLC (C.S.) 36, learned counsel argued that appellant neither in his departmental appeal nor in his memo. Of appeal before this Tribunal has said that during intervening period he had not accepted other employment or engaged in profitable business, which is a condition precedent, therefore, appellant is not entitled to get back benefits for the period he remained fugitive/absent from duties.
4. Learned Assistant Advocate-General appearing on behalf of respondents Nos.1 to 3, supported the arguments advanced by learned counsel for respondent No,4.
5. We have considered the above submissions, perused the case file and have gone through the case-law referred to by the learned counsel for the parties. Appellant was awarded major penalty of removal from service on the ground that 180 days' leave earlier granted to him vide Notification dated 15-2-1995 by the Chancellor was subsequently cancelled vide Notification dated 14-5-1995 and despite repeated letters/ notices appellant failed to resume his duties till 10-1-1996. In his departmental appeal dated 14-7-2000, appellant challenged the punitive order on the ground that on expiry of his tenure as Vice-Chancellor of Agriculture University, Tando Jam, he was granted 180 days' leave by the Chancellor/Governor vide Notification dated 15-2-1995 and he availed the same w,e,f, 14-5-1995 which expired in November, 1995 and then he again applied for three months' earned leave and that in February, 1996 when he returned from abroad he came to know about punitive order passed against him. He stated that he was never served with any letter of cancellation of leave or other notices/show-cause notices, thus, the punitive order passed without adopting codal formalities was illegal. His departmental appeal was accepted and vide Notification dated 11-7-2001 appellant was reinstated in service. However the intervening period from 14-5-1995 to 11-7-2001 was treated as "extraordinary leave without pay".
6. Perusal of the record reveals that Notification of cancellation of leave dated 14-5-1995 issued by the Secretariat of the Governor of Sindh was never served upon appellant. Therefore, he had rightly availed leave w,e,f, 14-5-1995 to 9-11-1995 (180 days), which was earlier granted to him subject to title. However, appellant's contention raised in his departmental appeal that in November, 1995 he again applied for extension of leave for three months is not borne out from the record made available before us. He has neither produced the copy of the said application nor the order/notification whereby the leave was extended. It may be stated that in his memo. Of appeal, appellant has nowhere stated that he had ever applied for extension of leave for three months.
According to appellant he returned from abroad in February, 1996 when he acquired knowledge about the punitive order. Be that as it may, appellant was supposed to file 'departmental appeal immediately on acquiring such knowledge in February, 1996 but he unnecessarily waited for about 4 and half years and filed departmental appeal on 14-7-2000, therefore, by no stretch of imagination he can get premium of his long silence. Appellant's contention that since he had been victim of the personal enmity of the then Minister for Agriculture (Mr. Murad Ali Shah) who remained in power till October, 1999 it was not possible for him to get the justice, is nothing but a lame excuse.
This explanation/ contention is neither convincing nor plausible and is thus, not believable. We may observe here that appellant was simply allowed 180 days' leave but he had gone abroad although he was not allowed ex-Pakistan leave, therefore, his proceeding abroad without permission amounts to "misconduct", but since the departmental appellate authority by exercising his powers reinstated appellant on the sole ground that disciplinary proceedings initiated against appellant were not proper, as such, no further action against appellant is called for.
7. Contention of appellant's learned counsel that since the impugned order of removal from service has been declared as illegal and void and appellant has been reinstated in service, therefore, he cannot be deprived of the salary during which he remained out of job for no fault on his part, has no force in the circumstances of the case. Admittedly, as observed earlier, appellant was supposed to resume his duties on 10-11-1995 after expiry of 180 days' leave, but he failed. His contention that he had applied for extension of leave for three Months is not borne out from the record. Besides, appellant filed departmental appeal after inordinate delay of 4 and half years from the date of acquiring knowledge of passing of original impugned order. Besides, appellant either in his departmental appeal or in the memo. Of instant appeal has nowhere mentioned that during the period he was out of service, he had not made any earnings by engaging himself in any employment or business. As per dictum laid down in a case of Abdul Hafeez Abbasi v. Managing Director PIAC 2002 SCMR 1034, such prayer/assertion necessarily had to be made in the pleadings.
In another case of Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque and others 2004 PLC (C.S:) 1151, the Honourable Supreme Court disallowed the back benefits awarded to respondent No,1 (Mansoor-ul-Haque) by the Federal Service Tribunal on the sole ground that the same were not supported by documentary evidence to the effect that when respondent No,1 was out of service, he did not work anywhere to gain financial benefits. Therefore, keeping in view the dictum laid down by Honourable apex Court, appellant by no stretch of imagination is entitled to salary for the period from 11-11-1995 to 10-7-2001 i,e, for the period he remained out of job.
8. In sequel to above mentioned discussion, the appeal being devoid of merit is hereby dismissed, leaving the parties to bear their own costs.
9. Before parting with the judgment we may add here that while the instant appeal was reserved for judgment, learned counsel for respondent No,4 filed statement that since appellant has also challenged the order of removal from service as being passed without adopting proper procedure and without holding regular ,inquiry, therefore, the impugned Notification, dated 11-7-2001 may be set aside with direction to conduct inquiry afresh after providing full opportunity of participation to the appellant for just and proper decision. We are afraid, this suggestion made on behalf of respondent No,4 is not tenable, for the simple reason that impugned Notification, dated 11-7-2001 has been issued by the Secretary, Government of. Sindh, Agriculture Department, Karachi, in pursuance of acceptance of appellant's departmental appeal by the competent authority viz. The Governor of Sindh. Therefore, the consent for setting aside the impugned Notification dated 11-7- 2001 can only be given by the Governor of Sindh alone and none else.