' RAJA FAYYAZ AHMAD, J.---This petition under Article 212(3) of.The Constitution of Islamic Republic of Pakistan, 1973 for leave to appeal has been preferred against the judgment, dated 8-3-2010, passed by the learned Federal Service Tribunal, Islamabad, whereby Appeal No,1065 (R)(CS) of 2006, filed by the petitioner against the order of his dismissal from service and the rejection of his departmental appeal/representation, has been dismissed.
2. The precise relevant facts of the case are that petitioner Mushtaq Ahmad Khokhar, while working as Assistant Superintendent (Investigation) (BPS-11), in the office of erstwhile Postmaster-General Northern Punjab, Rawalpindi. Now the office of Deputy Postmaster-General, Rawalpindi Region, was granted Ex-Pakistan Leave for 120 days with effect from 6-11-1999 to 4-3-2000, on full pay and 240 days leave from 5-3-2000 to 30-10-2000, on half pay by the Deputy Postmaster General vide order dated 5-11-1999. Thereafter, the petitioner applied from Canada for extension of the leave for a period of 1 year up-to 30-10-2001, which was not acceded to by the Competent Authority and the petitioner was accordingly informed vide letter dated 18-10-2000. As such he was asked to resume his duty on expiry of the leave on 30-10-2000 and this communication was addressed to the petitioner at his provided address. A day prior to the expiry of the leave period mentioned above, the petitioner again on 29-10-2000 applied for extension of leave for two months from 30-11-2000 to 29-12-2000 and he was again informed by the office vide letter of even number dated 7-11-2000 that extension of leave for this period also could not be acceded to and he should resume duty immediately. Finally, vide letter dated 27-1-2001, the petitioner was directed to resume duty within 15 days of the receipt of the letter sent to him at his given address under registered cover dated 27- 1-2001 and the reply sent by the petitioner' was found to be not satisfactory, accordingly he was informed that he remained absent from duty with effect from 31-10-2000. Also memo dated 7-12- 2000, was issued to him to join the duty. Prior to the last mentioned memo; show-cause notice dated 10-1-2001 was issued to the petitioner by the Director-General, Pakistan Post Office/Competent Authority under section 13(2) of the Civil Servants Act, 1973 as to why on the recommendation of the review committee, he may not be retired from service in the public interest on the grounds mentioned therein, which was contested by the petitioner vide his reply dated 21-2- 2001, but in such behalf no final decision was taken by the Competent Authority, however, on the charges for having remained absent from duty with effect from 31-10-2000, show-cause notice was issued to the petitioner under Removal from Service (Special Powers) Ordinance, 2000 on 5-5- 2001 sent to him at his provided Canadian address responded by the petitioner vide his communication dated 30-5-2001 requesting for grant of the copies of the documents mentioned therein, reproduced herein below:-- "(1) A copy of letter No,Staff/P-1013/54 dated 8-9-2000 addressed to me.
(2) Leave rules defined in PO Manual Vol-II
(3) Special Powers Ordinance, 2000.
(4) Ordinance, 2001 issued for Government employees.
(5) Leave Rules, 1980.
(6) E&D Rules.
(7) Copy of NOCs granted to me for preparing Passport and then leaving the. Country.
(8) The copy of decision announced by the Director-General Pakistan Post Office Islamabad on his office memo. No,P-21-6 of 2000 (PMG RWP) dated 10-1-2001 and defence statement submitted by me on 27-2-2001. This memo. Was received with your office file No,Staff/ N-55/ Review in RL 46 dated nil".
3. It is the case of the department that copies of the documents requested for, were supplied to him on 17-1-2001, whereas according to the petitioner copies of only 3 documents were supplied to him, description whereof has not been furnished by the petitioner and admittedly reply to the aforementioned show-cause notice was not submitted by the petitioner. Consequently the Competent Authority vide Office Order No,Staff/P-1013/54, dated 17-8-2001 awarded penalty of dismissal of the petitioner from service with immediate effect and he was further informed that he has a right to appeal against the said order under the Civil Servants (Appeal) Rules, 1977 within a period of 30 days from the date of the issuance of the said order and this order as well was sent to the petitioner at his given address in Canada, which reads as under:-- "Whereas, you Mr. Mushtaq Ahmed Khokhar, Assistant Superintendent of Post Offices (BPS-11) while holding the post of Assistant Superintendent (Investigation) (BPS-11) in the office of erstwhile Postmaster General Northern Punjab, Rawalpindi now office of the Deputy Postmaster General Rawalpindi Region were granted leave Ex-Pakistan on full pay for a period of 120 days from 6-11- 1999 to 4-3-2000 combined with leave Ex-Pakistan on half pay for a period of 240 days from 5-3- 2000 to 30-10-2000 respectively.
(2) Whereas, on expiry of above period of leave, you applied for grant of extension in leave for a period of 60 days w,e,f, 31-10-2000, which was not granted by the competent authority and you Mr. Mushtaq Ahmed Khokhar was informed vide memo. No,Staff/P.1013/54 dated 7-11-2000. You were also directed vide memo. Of even number dated 7-12-2000 and 27-1-2001 to resume duty but you did not respond and thus absented yourself from duty unauthorizedly since 31-10-2000.
(3) Whereas, keeping in view your unauthorized absence from duty, the "Authority" 4vas satisfied that sufficient reasons exists to proceed against you under Removal From Service (Special Powers)
Ordinance, 2000 and show-cause notice of even number dated 5-5-2001 was issued to you on your given address in Canada. Instead of showing cause as to why you may not be dismissed from Service, you submitted an application dated 30-5-2001 demanding certain documents which were supplied to you vide memo of even number dated 17-7-2001 and you did not submit your defence in response to show-cause dated 5-5-2001 within stipulated period mentioned therein.
(4) Whereas, the competent authority has examined the case and is of the opinion that it is not reasonably practicable to give further opportunity and in the light of the facts of the case and record of disciplinary proceedings reached on the final conclusion that the charge of "misconduct" arising out of your unauthorized absence from duty w,e,f, 31-10-2000 stand established against you and you have filed to offer any defence against these charges.
(5) Therefore, the competent authority in exercise of the powers vested in him under Removal From Service (Special Powers) Ordinance, 2000 has imposed upon you Mr. Mushtaq Ahmed Khokhar a BPS-11 official of Assistant Superintendent of Post Offices cadre, the major penalty of "Dismissal from Service" as prescribed in the Removal From Service (Special Powers) Ordinance, 2000 within immediate effect.
(6) You shall have a right of appeal to the Appellate Authority under the Civil Servants (Appeal)
Rules, 1977, within a period of 30 days from the date of issuance of these orders."
4. Against the above reproduced order dated 17-8-2001 departmental appeal/representation dated, 16-9-2001, was filed by the petitioner, which appears to have remained un-responded and was followed by reminders of the petitioner dated 30-9-2001, 3-7-2006 and 6-7-2006. Vide a letter dated 29-11-2006 addressed to the petitioner issued by the Assistant Deputy Director-General (Discipline), he was informed that the representation dated 16-9-2001, was rejected by the Departmental Appellate Authority as barred by time. The petitioner challenged the order dated 17- 8-2001, passed by the Competent Authority dismissing him from service on account of unauthorized absence from duty w,e,f, 31-10-2000 and the subsequent order passed by the Departmental Authority rejecting his representation/departmental appeal communicated to him vide letter dated 29-11-2006 mentioned above before the learned Federal Service Tribunal, dismissed vide impugned judgment.
5. Learned Advocate Supreme Court for the petitioner and the learned Deputy Attorney-General for the respondent have been heard. The impugned judgment and the documents available on the paper- book have been carefully and minutely perused with their assistance.
6. The learned counsel for the petitioner contended that the impugned order of the dismissal of the petitioner from service was received by him in Canada in the 1st week of September, 2001, whereby, it was brought to the notice of the petitioner that he has a right to appeal against the said order to the appellate authority within 30 days of the issuance of the order, therefore, within the given stipulated period, departmental appeal/representation was preferred by the petitioner on 16-9- 2001 but the same was not responded, however, in response to the subsequent reminders submitted to the respondent, vide letter dated 29-11-2006, the petitioner was informed that his departmental appeal was rejected by the appellate authority as barred by time and thereafter the petitioner within the stipulated period of limitation filed appeal before the learned Federal Service Tribunal, Islamabad but the petitioner on untenable grounds and by misapplication of the facts and law, non-suited the petitioner on the point of limitation by holding that the departmental appeal was not filed within time, hence, the appeal before the learned Service Tribunal was not competent and thus the appeal filed before the Tribunal on 28-12-2006, was hopelessly barred by time. The learned counsel has argued that since prior to the issuance of show-cause notice dated 10-1-2001, notice was issued to the petitioner on the recommendation of the Review Committee, to show cause as to why he be not retired from service, should have taken to its logical end by the departmental authority even though the same was contested by the petitioner. Hence in such view of the matter, further action taken by the department and issuance of the final show-cause notice to the petitioner for the contemplated action entailing major penalty of his dismissal from service on account of unauthorized absence from duty w,e,f, 30-10-2000, was unjustified and illegal which consequently rendered the impugned order of the dismissal of the petitioner from service as not sustainable in law. The learned counsel further submitted that the petitioner was misled of the information conveyed to him as contained in the impugned order dated 17-8-2001, conveying that he can prefer departmental appeal/ representation within 30 days. Of the issuance of the said order received by him in the 1st week of September, 2001 and within 30 days i,e, 16-9-2001, departmental appeal/representation was submitted to the departmental authority. Rejection whereof was communicated to the petitioner on his reminders on 29-11-2006, hence, the appeal before the learned Service Tribunal nor the departmental appeal was barred by time. To supplement his contention reliance was placed on the judgment of this Court in the case of Central Board of Revenue through. Chairman/Secretary, Revenue Division, Islamabad v. Shafiq Muhammad and another 2008 SCM R 1666.
7. The learned D.A.-G. Supported the impugned judgment by contending that the departmental appeal, as well as, the appeal preferred by the petitioner before the learned Service Tribunal was hopelessly barred by time hence the impugned judgment is unexceptionable.
8. The contentions put-forth on behalf of the parties by their learned counsel have been carefully considered. It is an admitted feature of the case that the Notice dated 5-5-2001, issued by the departmental authority was served upon the petitioner to show cause within 15 days from receipt of the notice, as to why major penalty of dismissal from service under (Special Powers), Ordinance, 2000 should not be imposed upon him of his unauthorized absence from duty w,e,f, 31-10-2000, to which no written defence was put by the petitioner and. Instead vide communication dated 30-5- 2001, the petitioner asked for the supply of the documents referred to hereinabove, which for the purposes of offering defence seems to be not relevant, as in the ordinary course of business and in the circumstances of the case, these documents to have already been available with the petitioner except the copies of various rules, which obviously the department was not obliged to supply to the petitioner. In the para-wise comments to the appeal filed before the learned Service Tribunal, it was admitted by the department that order dated 17-8-2001, about the dismissal of the petitioner from service was received by him in the 1st week of September, 2001, against which order, the departmental appeals dated 16-9-2001 and 30-9-2001, were received on 7-11-2001 and thus the same were barred by time. It is also an admitted fact that in paragraph 6 of the impugned order, dated 17-8-2001, the petitioner was informed that he has a right of appeal to the appellate authority within 30 days of the issuance of the order under the Civil.Servants (Appeal) Rules, 1977 and thus according to the learned counsel, the petitioner was misled in not preferring the appeal to the departmental authority within the statutory period of limitation. It is not disputed that the petitioner was not proceeded against under the Government Servants (Efficiency and Discipline)
Rules, 1973 rather the fact remained that show-cause notice admittedly was issued and served on the petitioner under the Removal from Service (Special Powers) Ordinance, 2000 having, by virtue of section 11 of the Ordinance the overriding effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 and the rules made there under and any other law for the time being in force. Ordinance XVII of 2000, being a special law provided its own limitation under section 9, for preferring representation by a person on whom penalty is imposed under section 3 of the said Ordinance to be made within 15 days from the date of communication of the order and notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under section-9 may, within 30 days of the order prefer appeal to the Federal Service Tribunals established under Service Tribunal Act, 1973. Proviso to section-10 of Ordinance XVII of 2000, was substituted and added vide Ordinance No,XIX of 2002 dated 6-4-2002, which reads as under:- "Provided that where a representation has been preferred under section 9 but no decision has been received by or communicated to, the applicant or, as the case may be, petitioner, within a period of sixty days of its submission to the prescribed authority, he may prefer appeal to the Service Tribunal within 30 days of the expiry of the aforesaid period."
9. In the present case even if, it be assumed that on receipt of the communication about the impugned order of the departmental authority dated 17-8-2001 in the 1st week of September, 2001, departmental representation was made on 16-9-2001 and giving full benefit to the petitioner that he was misled by the contents of para No,6 of the said order intimating him that he can prefer appeal to the departmental authority within 30 days of the said order; the decision on his representation was not communicated to him till he was informed vide a letter dated 29-11-2006, that his representation was rejected being barred by time; he approached to the learned Tribunal by preferring appeal within 33 days and therefore, could not have been lawfully non-suited on the ground of limitation, appears to be misconceived and devoid of any substance in view of the proviso to section 10 of Ordinance XVII of 2000, reproduced hereinabove, which envisaged that where a representation has been preferred under section 9 but no decision has been received or communicated to the applicant or, as the case may be, the petitioner, within a period of 60 days of the submission of the representation to .The prescribed authority, may prefer appeal to the Service Tribunal within next 30 days of the expiry of the aforesaid period.
10. Representation to the prescribed departmental authority was submitted by the petitioner on 16- 9-2001, which remained not responded by the department within a period of 60 days from the submission of the representation, the petitioner was to prefer appeal to the Service Tribunal within next 30 days of the expiry of the aforesaid period of 60 days, which he admittedly did not avail and therefore, obviously the appeal preferred before the learned Service Tribunal was hopelessly barred by time, and, inasmuch as the petitioner did not submit even application. Seeking for condo nation of the delay. It appears that after submission of the departmental representation, followed by reminders dated 30-9-2001, 3-7-2006 and 6.7-2006, made by the petitioner, the department vide letter dated 29-11-2006, addressed to the petitioner, he was informed that his representation dated 16-9-2001, earlier submitted by him, was rejected by the competent authority as barred by limitation, would not per se enlarge the limitation period for filing appeal before the Service Tribunal. The precedent case cited by the learned counsel has no relevance to the case in hand in view of the peculiarity of the facts of the present case.
11. In view of the prescribed period of limitation for filing of appeal as envisaged by proviso to section-10 of the Ordinance, the learned counsel for the petitioner has not been able to raise any question of law of public importance, therefore, in view of the foregoing reasons, this petition being devoid of substance is dismissed. Leave refused.