' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---Appellant while serving as Deputy Director (Admn.) Environmental Protection Agency, Sindh, was proceeded on medical leave for 30 days w,e,f, 16-2-2000. On expiry of such leave, he applied for extension of two months leave followed by another application for extension for leave on the ground that he was apprehending danger to his life due to enmity. In April, 2005 he appeared to join his duties, when he was informed that he has already been dismissed from service as per impugned order, dated 30-11-2001 passed by the Chief Secretary, Sindh. After availing departmental remedy, which remained unresponded, appellant has filed the instant appeal.
2. Learned counsel for the appellant argued that neither any show-cause notice ever served upon appellant nor any enquiry with regard to verify the genuineness of appellant's apprehension to his life was conducted. He submitted that if any show-cause notice was issued but not served upon appellant, the department could have got it published any in daily newspaper, but no such exercise was undertaken but appellant was awarded major penalty hurriedly without adopting proper course as provided under Removal from Service (Special Powers) Sindh Ordinance, IX of 2000. In the end, learned counsel contended that at the one hand appellant's period of absence w,e,f, 15-11-2000 was regularized and treated as leave without pay and on the other hand he was dismissed from service, which action on the part of the respondent No,2 was neither legal nor proper. In this regard he relied upon the case of Dr. Rasheed Ahmed Soomro v. Government of Sindh and others KLR 1995 Labour and Service Cases 89, unreported judgment of this Tribunal in a case of Muhammad Hassan v. Government of Sindh and others passed in Appeal No,332 of 1999 dated 12-2-2002 duly upheld in C.P. No,89-K of 2002 by Honourable Supreme Court in the case of Inspector-General of Police v. Muhammad Hassan, dated 28-6-2002.
3. In rebuttal, learned Assistant Advocate-General while referring the written statement filed on behalf of respondent No,3 duly adopted by respondents Nos.1 and 2 and, the documents annexed therewith, submitted that appellant was allowed 30 days earned leave w,e,f, 16-10-2000 and he was supposed to resume his duties on 15-11-2000 but instead he submitted application for extension of leave on medical grounds. Appellant was required to produce medical certificate in support of his ailment, which he provided, thereafter Special Medical Board was constituted and appellant was directed to appear before the said Board but he failed and chose to remain absent.
Appellant was also informed that his application for extension of leave had been rejected and he was directed to resume his duties and also to appear before the Regional Accountability Bureau Sindh, to face the investigation in a case, but appellant neither resumed his duties nor appear before Regional Accountability Bureau. Accordingly, disciplinary proceedings were initiated against appellant and a show-cause notice, dated 1,3-9-2001 was sent through Registered A.D. And CCS Courier Service at appellant's address and on receiving no response, ex parte decision was taken and as per impugned order appellant was dismissed from service and that order was also communicated to appellant through Registered A.D., CCS Courier Service so also through Special messenger. She further submitted that appellant was absorbed in Sindh Environmental Protection Agency (SEPA) in September, 1991 and he had less than two years service at his credit and that he remained absconding from duties for about five and half years and filed the instant appeal, which his hopelessly time-barred and thus, liable to be dismissed.
4. We have considered the above submissions and perused the case papers. Admittedly, appellant was allowed 30 days earned leave w,e,f, 16-10-2000 and he was supposed to resume his duties on 15-11-2000 but he applied for extension of leave twice on medical grounds. He also produced medical certificate issued by the Registrar, Department of Orthopedic, Ward-14 of Jinnah Postgraduate Medical Centre, Karachi. Instead of verifying its genuineness or otherwise, a Special Medical Board was constituted but appellant could not appear before the Board despite required to appear. Although no plausible explanation has been offered on behalf of appellant, yet it has come on the record that appellant was facing investigation before Regional Accountability Bureau, sindh, at that relevant time and due to fear appellant had gone underground to save his skin. It has been stated that appellant has already been exonerated from said criminal charge. Perusal of the impugned punitive order reveals that at the one hand the absence period of appellant had been treated as leave without pay, thus, he was made to suffer pecuniary loss and on the other hand he was awarded major penalty of dismissal from service for the same charge of absence. As per established legal dictum, an accused civil servant cannot be penalized twice for the same omission and commission. Since period of unauthorized absence was regularized by treating it as extraordinary leave without pay, the penalty of dismissal from service on the same charge was neither proper nor justified. In the similar circumstances, this Tribunal in a case of Dr. Rasheed Ahmed Soomro v. Government of Sindh and others KLR 1995 L&S 89, had set aside the order awarding major penalty of removal from service. Similar was the view taken by this Tribunal in a case of Muhammad Hassan v. Inspector-General of Police, Sindh and others, in Appeal No,332 of 1999, decided on 12-2-2002. The said judgment was upheld in C.P.L.A. No,389-K of 2002 (Inspector- General' of Police, Sindh v . Muhammad Hassan), dated 28-6-2002, with an observation that "In the instant case regular inquiry was not held and absence from duty also having been regularized treating the same to be leave without pay, could not have been made a ground subsequently, fdr misconduct resulting the dismissal of the respondent". It is settled law when absence is treated leave on full pay or without pay, then the accused civil servant could not be treated as absent and at least he could not be dismissed from service on that ground, if the E civil servant was treated absent, then he could not be treated on leave, and if he was to be treated on leave, then he could not be treated as absent. Reliance is placed on the case of Muhammad Riaz v. D.P.O. Khushab and another 2005 PLC (C.S.) 912. Very recently, the Honourable Supreme Court in a case of Lahore Development Authority v. Muhammad Nadeem Kachloo and another 2006 SCMR 434, while dismissing the petition has observed that once the period of absence was regularized by treating the same as leave without pay, there was no justification to dismiss the civil servant from service.
The Honourable Supreme Court while dismissing the petition also issued notice to the petitioner/L.D.A. To explain as to why costs may not be imposed for filing frivolous petition, knowing well that the competent authority had treated the period during which respondent remained absent as leave without pay. In view of the fact that appellant's absence was regularized by treating the same as leave without pay, the second order awarding major penalty of dismissal from service was nullity in the eyes of law and void. Therefore, question of limitation does not arise.
5. For the aforesaid reasons, the appeal is accepted and the impugned order, dated 30-11-2001 is set aside. The appellant is directed to be reinstated in service and the intervening period shall be treated as leave of kind due.
6. Announced in open Court.