Muhammad Javed Ashraf Hussain, Member--This is an appeal under Section 4 of the Service Tribunals Act, 1973 against the impugned order 26.2.2005 whereby the major penalty of removal from service has been imposed upon the appellant. The appellant filed departmental appeal dated 8.3.2005 which having remained unresponded this appeal dated 13.5.2005 has been filed before this Tribunal.
2. Briefly, the facts of the case are that the appellant was appointed as Chowkidar in the respondent-department on daily wage basis on 26.12.1989. Later, his services were regularized vide order dated 11.10.1992 effective from 19.8.1992.
3. The appellant was issued a memorandum dated 5.11.2004 by the department stating therein that he has been absent from duty unauthorizedly and was directed to report back for duty immediately and also to submit explanation for his unauthorized absence. The memorandum also refers to an earlier memorandum dated 22.10.2004 whereby also the appellant was directed to report back for duty. The appellant vide his letter dated 25.11.2004 addressed to the Director, JPMC, Karachi submitted that due to serious domestic problems he could not attend duty from 28.9.2004 and further stated that he has joined duty w,e,f, 19.11.2004. He also requested that leave may be sanctioned for the period he remained absent i,e, from 28.9.2004 till 18.11.2004. The appellant was however issued a show-cause notice dated 12.12.2004 whereby he was charged with unauthorized absence from duty from 28.9.2004. The appellant submitted his reply dated 6.1.2005 stating therein that he remained absent on account of serous domestic problems, further stating that he has joined duty and he may be sanctioned leave for the period he remained absent. The reply having been found not 26.2.2005 was a issued imposing the penalty of removal from service upon the appellant.
4. The learned counsel for the appellant argued that salary for the period that the appellant allegedly remained unauthorizedly absent has been paid to him and therefore he cannot be treated as having been on unauthorized absence from duty during the said period. The learned counsel for the appellant also argued that the penalty was imposed upon the appellant by adopting summary proceedings, without holding any inquiry and without affording the opportunity of personal hearing. He further contended that major punishment having been imposed without conducting a regular inquiry was unlawful and placed reliance on rulings as in 2004 SCJ 455, 2004 SCMR 1662, 1999 PLC (CS) 665 and NLR 2004 (Service)
22. The learned counsel further argued that the penalty has been imposed by the Respondent # 2 who in fact was Appellate Authority and the before the impugned order having been passed by unprescribed authority is liable tobe set aside and placed reliance on 1998 SCMR 2268, 2003 PLC (CS) 1249 and 2003 PLC (CS) 433. The learned counsel for the appellant summed up his arguments by stating that in view of the foregoing, the impugned order is liable to be set aside and the appellant reinstated in service with all consequential back benefits.
5. The learned Standing Counsel relying on the comments filed by the respondents stated that the appellant reported back for duty on 23.11.2004 after having remained unauthorizedly absent from 28.9.2004. He further stated that leave for the period that the appellant remained absent was not sanctioned and the period was decided to be treated as leave extraordinary alongwith the major penalty of removal from service. He stated that the appellant was apparently allowed salary for the period he remained absent inadvertently and in routine before the mistake was discovered by the departmental authorities. The learned Standing Counsel also stated that as the appellant had himself admitted to having remained absent from duty albeit on account of domestic problems, therefore there was no need to hold an inquiry in the matter. The learned Standing Counsel also contended that the appellant was given due opportunity of personal hearing on 7.2.2005. He concluded his arguments by stating that the penalty of removal from service having been imposed after complying with the requisite procedures, the appeal is liable to be dismissed.
6. Heard the learned counsel for the appellant as, well as the learned Standing Counsel and also perused the record.
7. The main plank of the stand taken by the learned counsel for the appellant is that as the major penalty of removal from service has been imposed upon the appellant, it was incumbent upon the respondents to hold a regular inquiry before imposing the said penalty. It is however observed that the appellant has himself admitted vide his letter dated 25.11.2004 addressed to the Director, JPMC, Karachi that he remained absent from 28.9.2004 to 18.11.2004 on account of domestic problems and therefore we are of the view that the inquiry even if held, would not have yielded any other result. Thus, an inquiry to determine the facts of absence would have been a futile and unnecessary exercises. The learned counsel for the appellant also contended that the penalty having been imposed by un-prescribed authority i,e, in fact by the Appellate Authority, is liable to be set aside. It is however, noted that the appellant himself had addressed his letter dated 25.11.2004 to the same authority as has issued the impugned order i,e, the Director, JPMC, Karachi which appears to be admission on his part that the latter was competent authority in his case.
Besides, the appellant had addressed his departmental appeal to the. Secretary, Ministry of Health, Government of Pakistan, Islamabad thereby belying his own contention that the authority issuing the impugned order i,e, The Director, JPMC was the Appellate Authority. By addressing his departmental appeal to the Secretary, Ministry of Health the appellant has clearly admitted that the Appellate Authority was the Secretary of the Ministry. Therefore in view of the factual position as discussed in the foregoing we are not inclined to accept the contention of the appellant that the impugned order was issued by the un-prescribed authority. Besides, the appellant has failed to produce any document to establish that the Director, JPMC was not the competent authority to issue the impugned order and that he was the Appellate Authority.
8. The respondents have also contested the claim of the appellant that he was not afforded an opportunity of personal hearing and have stated that the appellant was provided due opportunity of personal hearing on 7.2.2005.
9. As regards the payment of salary for the period that the appellant remained absent, the respondents have clarified that the period was in fact decided to be considered as leave extraordinary but the decision could not be implemented as in the meantime the order of removal from service had already been executed leaving no room for recovery of the amount inadvertently paid to the appellant as salary.
10.In view of the above we find hardly any reason to interfere with the action taken by the department resulting in. removal from service against the appellant. However, we feel that the major penalty' of removal from service for remaining absent from duty for the period of less than two months and that also as explained by the appellant on account of some serious domestic problems is too harsh and we consider that in the circumstances of the case, a lesser punishment of reduction to lower scale by two stages for two years would suffice. The appellant shall therefore be reinstated in Service from the date he was removed and the period of absence shall be treated as a leave due to him. No order as to costs.
11.Parties be informed accordingly.