' Dur Muhammad, Naib Quasid has filed this appeal against the order dated 16th December, 1980 passed by the A. D. C. (G), Rahimyar Khan terminating his service from the post of Naib Quasid. By virtue of this appeal he has prayed that the impugned order be set aside and he may be re- instated in service with all back benefits.
2. Brief facts of the case are that Dur Muhammad who rendered almost 18 years of service in the Department applied for 3 days leave on the ground that he was called upon through a telegraphic message to attend to his blind and ailing brother who fell seriously ill. According to the appellant, he was working at that time with the D. C. Rahimyar Khan at his residence and made a written request through an application to the said officer to grant him leave for the said period. It has also been contended that he got the leave sanctioned and left his sanctioned application with the sanctioning authority with the presumption that the same would find its way to its proper place, 1. e.
D. C. Office. When the appellant reached his home he found the condition of his brother serious and thus engaged himself in looking after him by consulting various Doctors. As the appellant had never availed of any Earned Leave throughout the period of 18 years service he made a request through a Registered Post to the competent authority for the grant of further leave as it was not possible for him to leave his brother helpless in that condition. However, he did not receive any reply and again assumed that the leave must have been sanctioned and remained with his brother for a period of two months. When he reported back to his office be found that he was being considered absent without leave for all that period and a show-cause notice was awaiting for him that why he should not be awarded major penalty for his default. However, his explanation did.Not find favour with the competent authority who terminated his services vide the impugned order dated 16th December, 1980. Hence this appeal.
3. I have heard the learned counsel for the appellant as well as learned District Attorney assisted by the Representative of the Department and have perused the record of this case with their assistance. I have given my anxious thought to the contention made by both the parties and find from the record that the appellant had unblemished career of 18 years without ever asking for any leave. It is also on the record that there is no trace of his sanctioned application in the office which the appellant claims that be handed over the same to the D. C. Himself. Similarly I find while looking into the judgment of A, D. C. (0). That this contention of the appellant that he went, on leave with the prior per mission on the D. C. Has not been attended to which could have been vigilant to enquire from the Head Office when he did not receive any reply of his Registered Letter supported by Medical Certificate regarding also minim remain ablivious of the arguments agginend the contention of the easily verified by writing a D.
0. Letter from the competent authority to D. C. So as to ascertain the stand taken by the so aggrieved appellant. Appellant by the learned District Attorney that the appellant should have serious illness of his brother. According to the learned District Attorney this sort of attitude is neither desirable and needs stern corrective action in such matters of wilful account. I have no dispute with the above contention of the learned D. C. But at the same time cannot ignore the hard facts that the appellant has served the department for 18 years without any complaint from his superiors and never asked for any leave which if calculated was quite considerable. I also taking into consideration the present attitude of the appellant who has engaged a counsel and has filed the appeal before this Tribunal without waiting the decision of the Appellate Authority which shows that he is keento continue his earlier career with which he has been associated for 18 years. It has also been submitted that he is looking after his blind brother and a large family memberc dependent upon him. Keeping in view the special circumstances of that appellant's case and omission on the part of the A. D. C. (G) (competent authority) to verify the most crucial issue (whether the leave application was submitted by him to the D. C. Or not). I am inclined to come to the conclusion that the sentence awarded to the appellant in this case is harsh and unduly severe.
The purpose of the punishment for such first lapse is to pull up the delrquent by imposing the minor penalty so as to make him realize that he should not act in such irresponsible manner ii future. To throw a person on the road after he has served the employee for such a long time would not be an act which we should endorse in such circumstances. The Supreme Court of Pakistan has also laid down that the first lapse of a Government servant should not be punished with extreme penalty.
Similarly the Lahore High Court has observed that the Government being litigant is not expected to take an attitude of hostility towards its employees.
4. In the light of the above discussions I am of the considered opinion that the end of the justice will be met by varying the punishment of termination of service to stoppage of two increments alongwith censure. 1, therefore, direct that appellant be reinstated in service from the date he was so removed. However he will not be entitled to any claim of salary etc. For the period he has remained out of service and the said period will be treated as leave without pay. With these observations I proceed to accept his appeal and set aside the impugned order of A. D. C. (0), dated 16th December, 1980.
1981 P C (C. S.) 861 [Lahore High Court] Before Gul Muhammad Khan, J ABDUL BARI BHATTI versus MARTIAL LAW RtVIEW BOARD Artb 611413R1 Writ Petition No, 2142-S of 1980, decided on 13th April, 1981.
Constitution of Pakistan (1973)- -- Art. 199-Review petition-Facts of case showing that review petition filed by petitioner's wife on his behalf was at his instance and denial of this fact itself disentitling him relief from Court-Question of abating of appeal already before Supreme Court at instance of another person and petitioner can also do same or await its result as stated by Services Tribunal-Petition being premature, dismissed.
[p. 863],4 Sh. Munir Ahmad for Petitioner.
Tanvir Ahmad Khan, Asstt. A.-G. For Respondents. Date of hearing : 13th April, 1981.
' The petitioner who was removed from service under Material Law Regulation 114 on 13th March, 1972, filed Writ Petition No, 1697/S of 1973 to challenge it. It, however, abated because of the enforcement of Punjab Civil Servants Act, as well as Article 212 of the Constitution of 1973. The petitioner then filed an appeal No, 757/74 before the Punjab Services Tribunal, and left for Dubai (U.A.E.).
2. On the enforcement of Martial Law Order 23 petitioner's wife filed a review petition. The petitioner denies that it was done at his instance. According to para. 3 of his application dated 2nd April, 1979 addressed to the Chief Martial Law Administrator, it is, however, quite clear that it was the petitioner who instructed his wife to do so. The denial by the petitioner that he instructed his wife to do this amounts to concealment.
3. Consequently, a notice on the review petition (No, 633, dated 29th September, 1977) filed by petitioner's wife before the Review Board No. 1, was issued on 10th of October, 1977, requiring the petitioner to appear on 24th of October, 1977. Subsequent notices dated 7th November, 1977 and 12th November, 1977 were also sent along but no one appeared on petitioner's behalf.
Consequently, the Tribunal rejected the review petition on 3rd June, 1979.
4. The petitioner thereafter made an Application No, 155 of 1979 to the Punjab Service Tribunal for hearing his appeal. The Tribunal vide his order, dated 5th of September, 1979 observed as under :- "The appellant has, however, placed on record, a copy of the order passed by the Supreme Court of Pakistan in Appeal No, 316/1978 in Re: Muhammad Yousuf v. The Chief Engineer, Irrigation, Mu/tan, admitting the petition for Special Leave to Appeal to full hearing in the circumstance. But the final order is yet' to be passed by the Supreme Court in the aforesaid Appeal after hearing the respond dents. The learned counsel agrees that it is only after the final order that the view of the Supreme Court could be taken as final. In the circumstances, we consign this appeal to the record with the observation that if the Supreme Court ultimately accepts the contention raised by the appellant in Appeal No, 316 of 1978, the present appellant may move this Tribunal for the restoration of this tippeal for disposal on merits."
5, On 2nd March, 1980, the petitioner filed the present writ petition praying that an appropriate writ be issued declaring the order, dated 2nd January, 1978 received by the petitioner in the month of February, 1979 and the order dated 3rd June, 1979 refusing to withdraw the order dated 2nd January, 1978, to be without lawful authority.
6. The contention being raised by the learned counsel is that as there is no automatic abatement of his appeal the same should have been decided on merits. He has also gone through the order of termination, wherein it is specifically stated that in case the other applicant in the case succeeded before the Supreme Court, the present petitioner may also get his appeal taken out for decision.
7. The facts given above to make it clear that the review petition of the petitioner was filed at his instance. His denial of this fact, therefore, disentitles him to an equitable relief in this Court. The question whether the appeal could abate is already before the Supreme Court, at 4 the instance of another person. The petitioner could also do the same or as stated by the Tribunal await the result.
In case the other applicant before the Supreme Court does succeed, the petitioner's appeal before the Tribunal shall be decided on merits, otherwise the petitioner also will have no case. This petition is, therefore, premature.
' There is thus no merit in this petition and the same is dismissed with no order as to costs.