' IJAZ-UL-HASSAN KHAN, J.--- Muhammad Hanif, petitioner, through instant petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal from judgment dated 13-5-2008 passed by learned Federal Service Tribunal at Islamabad, (hereinafter, referred to as the Tribunal), upholding penalty of compulsory retirement from service imposed upon the petitioner vide notification dated 15-7-2002 and setting aside penalty of dismissal from service imposed upon him vide notification dated 20-3-2003, deeming the petitioner to have been compulsorily retired from service with effect from 15-7-2002.
2. Facts of the case as gathered from the record, briefly stated are, that Muhammad Hanif petitioner, while serving as Assistant Director (BS-17) Federal Investigation Agency, Islamabad was granted 90 days' ex-Pakistan leave with effect from 10-6-2000 for medical treatment of Hepatitis- B, vide application dated 18-4-2000. On expiry of leave, he was required to report for duty on 5-12- 2000 but the petitioner vide application dated 3-12-2000 requested for further leave of 180 days.
The authority, therefore, did not sanction the leave and directed the petitioner vide letter dated 12- 1-2001 to report for duty failure to which may entail initiation of disciplinary action. The petitioner, sent another medical certificate dated 31-1-2001 signed by Mr. Hernando Garcia, MD, Associate Pulmonary Division of Mount Sinai Medical Center. In view of the confirmation of bogusness of Medical Certificates of Mount Sinai Medical Center, earlier submitted by the petitioner, the matter was taken up with Dr. Garcia. No reply was received. The petitioner continued sending applications for extension of leave. He was, however, informed vide letters dated 26-2-2001 and 21-6-2001 about the rejection of his requests. Meanwhile, a complaint was received from the Embassy of France, Islamabad mentioning that visit Visas were granted to eight intending visitors (family member of the petitioner) on the written assurance/undertaking of the petitioner that none of the intending visitors to France would stay in France beyond the authorized visa limits and on their return they would present their passports in the French Embassy Islamabad personally. The Embassy alleged that none of those persons came back to Pakistan and according to official confirmation, the family had applied for political asylum on 18-12-2000. The petitioner was thereafter proceeded under Removal from Service (Special Powers) Ordinance, 2000 and served with an inquiry order dated 29-6-2001, containing following allegations:--- "(i) In June, 2000, he with official Passport No,S-029592 appeared before the French Consulate with a Notification No,A/778/Admn-I, dated 25-5-2000, issued from FIA Hqrs. Regarding sanction of 90 days ex-Pakistan leave to him. He applied for a visa for himself and his family. He pretended to visit France and USA to see family and friends during holidays. Moreover, he was also interviewed for issuance of visa to other eight people, introducing them as members of his family. In this regard, he presented the following undertaking to assure French Embassy that they would come back to Pakistan:--- "(1) Muhammad Hanif, Assistant Director, FIA, G-9/4, Islamabad, hereby undertake and assure that none of the above intending visitors to France would stay beyond the authorized visa limit and on their return, they would certainly present their passports in the French Embassy, Islamabad personally. The favour being extended. Is highly appreciated 6-6-2000."
(ii) None of these people came back to Pakistan and it has been confirmed by the French Embassy that Mr. Muhammad Akbar and his family, whose assurance of coming back was given by him (Mr. Muhammad Hanif) has applied for political asylum on 18-12-2000.
(iii) He was granted 90 days' ex-Pakistan leave on full pay w. e. f. 10-6-2000 vide Notification No,A/788/Admn-I, dated 29-5-2000. On his request, the ex-Pakistan leave was extended for further 90 days on medical grounds from 7-9-2000 to 24-12-2000 vide FIA HQ Notification No,A/778/Admn-I, dated 23-9-2000, then, he requested for further extension in ex-Pakistan leave for 180 days vide his faced letter dated 3-12-2000 which was not granted and he was informed vide FIA Hqrs letter No,A/778/Admn-I/2001, dated 12-1-2001 to report for duty immediately, failing which departmental action against him will be recommended to the competent authority under Removal from Service (Special Powers) Ordinance, 2000, but he has not reported back and is absent since 5-12-2000.
(iv) The medical Certificates sent by him from U.S.A. For extension in ex-Pakistan leave were not got verified from the concerned authorities, in this regard, Mount Sinai Medical Centre, Miami, USA, sent the following report which confirms that he tried to use a forged letter for extension in his leave:--- "This is to verify that the two letters you faced to us on 1-4-2000 were not issued by my department or Mount Sinai Medical Centre. This stationery is not consistent with our, and since we have not seen Mr. Hanif in our office, we do not know his diagnosis and would have no reasons to compose the content of the letters."
3. In response to the inquiry order/charge sheet, petitioner gave detailed reasons for extension in his medical leave and denied the submission of forged medical certificates and requested for postponement of the inquiry proceedings to produce evidence and witnesses to negate the charges against him. However, the inquiry proceeded and the Inquiry Officer submitted his report on 28-1-2002 with the following findings/recommendations:-- "Findings: ' Mr. Muhammad Hanif, Assistant Director F.I.A had been provided not only sufficient time but an opportunity for hearing in person to enable to defend the allegations. He had been deliberately avoiding attending the inquiry by sending requests one after another. He was directed to appear in person not later than 15th January, 2002 but he has failed stating that Doctor has advised that he needs regular medical follow ups for another period of three months and in view of health conditions he is advised not to travel to Pakistan during this period. Medical Certificate issued by Departmental representative Ly. Hong-Sen has been attested by the Consul General of Pakistan, Montreal Canada.
' The following charges have there been established/proved:---
(i) Mr. Muhammad Hanif had intervened for issuance of visa to eight (8) persons for France using his official capacity enabling Messrs Muhammad Akbar and Athar Iqbal for applying political asylum in France.
(ii) Mr. Muhammad Hanif, submitted forged medical certificates for grant of Ex-Pakistan leave.
(iii) He is absent from duty without approval with effect from 5th December, 2000.
' Recommendations.
' In the light of the facts analysis of the case it is recommended that:---
(i) Charges at serial Nos.(i) and (ii) have been provided, competent authority may consider minor/major penalties under E&D Rules, 1973 as per section 3(1) of Removal from Service (Special Powers), Ordinance, 2000..
(ii) The Counsel General of Pakistan Montreal Canada may be requested through Ministry of Foreign Affairs to have medical checkup of Mr. Hanif in Montreal Canada that he is suffering from Chronic HBV infection and unable to travel to Pakistan.
(iii) On receipt of report from Counsel General. Of Pakistan Montreal Canada disciplinary action be initiated in the light of that report."
4. On receipt of above recommendations, petitioner was served with a show-cause notice dated 14-3-2002. The petitioner denied the allegations and requested that inquiry proceedings may be held in abeyance till his arrival to Pakistan. Reply of the petitioner did not find favour with the authority and vide notification dated 15-7-2002 major penalty of compulsory retirement from service was inflicted upon the petitioner. The petitioner filed departmental representation and on expiry of the statutory period, preferred appeal before Tribunal, which has been disposed of through the judgment impugned herein.
5. Mr. Azid Nafees, Advocate appearing on behalf of the petitioner mainly contended that learned Tribunal while delivering the judgment overlooked that the proceedings of the inquiry and the impugned notification of compulsory retirement of the petitioner had been conducted and issued in violation of the provisions of the Removal from Service (Special Powers) Ordinance, 2000; that it was totally ignored that petitioner was entitled to leave without pay for maximum period of five years in terms of Revised Leave Rules, 1980 and even if the petitioner was not granted leave on medical grounds, his absence could be treated as leave without pay. In this regard out attention was invited to the provisions of para.13 of O.M. No,F-1/(2)-Rev.1/78 dated 21st September, 1978.
Concluding the arguments, learned counsel reiterated that Tribunal erred in law in upholding an ex parte inquiry conducted in undue haste in a mechanical manner without application of independent mind, accepting inadmissible evidence, resulting in complete failure of justice.
6. Contrarily, Mr. Shah Khawar, learned Deputy Attorney General representing the respondents' department, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment on all counts, reiterating that the authority, by considering the human aspect of the matter, not only granted the petitioner 90 days Ex-Pakistan leave for the purpose of treatment abroad but also acceded to his request for extension of leave for another 90 days.
According to the Revised Leave Rules, 1980, it is not necessary to specify the reasons for which leave has been applied; that charges were conveyed to the petitioner and he acknowledged its receipt by giving reply to the charges and that petitioner was given sufficient opportunity to come to Pakistan and join the proceedings but he wilfully remained away from the country by submitting fake/bogus medical certificates, culminating in his ultimate removal from service.
7. Having considered the matter from all angles in the light of material on file, we find that submissions of learned counsel for the petitioner carry weight. All proceedings were carried out ex parte without waiting for the return of the petitioner from abroad. Record reveals that no charge- sheet was issued to the petitioner as required under section 3(2) of the Ordinance ibid. The petitioner was deprived of opportunity of showing cause by giving a defence reply to the charge sheet. The petitioner was also denied of the opportunity of defence at the first stage required under the law. Such proceedings could not be sustained which had prejudiced the right of defence of the petitioner.
8. It has been held in Sajjad Hussain Bhatti v. The Post Master General, Pakistan Post Office, Metropolitan, S.S.C. Karachi and 2 others, 2002 PLC (C.S.) 843 that, "Ex parte inquiry conducted against accused civil servant without giving opportunity of defence to accused civil servant would vitiate the order of dismissal from service recorded against him." The demand of justice required that the authorities should have waited the return of the petitioner from abroad who could not come back to Pakistan for reasons beyond his control. There was no urgency to proceed against the petitioner in the circumstances of the case. On one hand it was essential in the interest of justice that the inquiry should be conducted in the presence of the petitioner, on the other hand, the inquiry could not be conducted in haste causing substantial prejudice to the principles of natural justice by depriving the petitioner of his defence. There was no wisdom in adopting the second course and ignoring the most appropriate course. The findings of the inquiry officer were not based on any evidence produced by any witness. The inquiry officer formed the opinion without any authentication of the documents. The inquiry officer proposed a major penalty, without having regard to facts and circumstances of the case. Such findings and the recommendations based on such findings on conjectures and surmises based on the opinion of the inquiry officer could not be made base for imposing any penalty what to talk of a major penalty. It has been contemplated under section 5 of the Removal from Service (Special Powers) Ordinance, 2000 that in case of charge of misconduct as stipulated in section 3 of the Ordinance, a full fledge enquiry is to be conducted in order to give an opportunity to the civil servant to clarify his position.
9. Needless to emphasize that in order to act justicely and to reach just ends by just means the Courts insist that the authority should adopt the elementary principles of nature justice unless the same have been expressly excluded.##TE# It has been held by this Court in the case of Collector of Customs Hyderabad and another v. Muhammad Hayat, reported as 2001 PLC (C.S.) 81, that "Civil servant was granted leave on medical grounds but such leave was not extended. Period of unauthorized absence was treated as leave without pay. Disciplinary proceedings were initiated against the civil servant and he was removed from service was right in holding that once request for medical leave was granted, subsequent request for extension of such leave could not be declined without referring his case for a second medical opinion". The authority was not justified in refusing to grant the leave on EOL (leave without pay). The petitioner has 26 years of service to his credit and as per Revised Leave Rules, 1980 the petitioner was entitled for EOL without pay for a maximum period of 5 years, if he had rendered more than 10 years of service. There was no justification, as rightly contended, for refusing EOL when the petitioner requested for that on medical grounds.##TE# Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others, 1991 SCMR 628, Allah Yar v. General Manager, Railways Headquarters, Lahore, 2001 SCMR 256, Amjad Ali and others v. Board of Intermediate and Secondary Education and others, 2001 PLC (C.S.) 81 and Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another, 2008 SCMR 1369.
10. In the light of foregoing discussion, this petition is converted into appeal and allowed accordingly. The impugned judgment dated 13-5-2008 passed by learned Tribunal, is set aside and appellate is directed to be reinstated in service with all back benefits. However, department would be at liberty to initiate fresh enquiry against the petitioner in accordance with law, if so advised. No order as to costs.##TE#
11. These are the detailed reasons of our short order dated 14-1-2009.