JUDGMENT SAYED MEHAR HUSSAIN SHAH, MEMBER - The appeal has been filed by the appellant against the order of removal from service dated 5.9.2008 whereby major punishment of removal from service has been imposed on appellant against which he had filed, departmental appeal on appellant against; which he had filed departmental appeal on 14.9.2006 and having received no response', the appellant has filed this appeal on 9.12.2006.
2. Brief facts of the case are that the appellant while serving as Sorter I.M.O., Karachi was granted LHP (leave with half pay) i.e.f. 20.6.2006 o 19.7.2006 and on expiry of said leave, the appellant-did not report for duty on 20.7.2006 and remained absent unauthorizedly from duty. The respondent No. 1 on- 2.8.2006, issued show-cause notice to the appellant for unauthorized absence from duty i.e.f. 20.7.2006 as well as gross negligence in performance of duty besides misconduct and inefficiency. The appellant tendered his reply to the said show-cause notice on 23.8.2006 and admitted his guilt on the basis of ailment and requested the authority that he shall file necessary medical certificate in due course. The appellant was called for' personal hearing on 4.9.2006 by the respondent No,. 1 through letter dated 31.8.2006 and during personal hearing the appellant submitted his medical certificate .For the period from 20.7.2006 to 4.9.2006. The appellant also requested for permission to resume duty. The respondent No. 1 considered all the facts and finally through order dated 5.9.2006 removed the appellant from service under Removal from Service (Special Powers) Ordinance. The appellant sent his departmental appeal to the respondent No. 2 on 14.9.2006 which remained undecided and thereafter - the appellant on 9.12.2006 had filed his appeal before this Tribunal.
3. The learned counsel for the appellant argued that the order of punishment dated, 5.9.2006 has been awarded to the appellant in violation of rules and regulations and placed his reliance to the departmental instructions issued by the department. The learned counsel for the appellant further contended that sickness is an act of God and no one can be held responsible. 26 years service at his credit and absence from duty on the basis of illness of the appellant is excusable and the appellant shall be satisfied If the order of removal from service of the appellant is modified by the Tribunal.
4. The learned Federal Counsel, duly assisted by Departmental Representative resisted the appeal and placed reliance upon the comments filed by the respondents. The Federal Counsel stated that the medical' certificate was required to have been filed within three days which was filed by the appellant with inordinate delay, proper opportunity was provided to the appellant and the appellant himself in reply to show-cause notice and as well at the time of personal hearing on 4.9.2006 had admitted his guilt, as such, appeal filed by the appellant is liable to be dismissed by the Tribunal.
5. We have given or anxious thoughts to the arguments of the parties and have also perused the record of the case, It is a fact that the appellant had long service of about 25 years when he was granted leave on half average pay i.e.f. 20.6.2006 to 19.7.2006. We have also satisfied ourselves that the appellant was also not given a chance to clear his position and proper opportunity of personal hearing was also not afforded to the appellant. Keeping in view the long service of the appellant, the fact and circumstances of this case we consider that the punishment so awarded to the appellant is too harsh and is not in consonance with the guilt of the. Appellant. We also feel that if the~appellant would have been given a proper opportunity of personal hearing by the respondent and his view-point would have been considered, the decision, in imposing the penalty by the.
Respondent to the appellant, may have been different. The reason for over stay of the appellant is supported by the . Medical certificate and keeping in view the length of service of the appellant in the department, .The period of over stay of the appellant should have been taken into consideration by the authority.
6. The. Respondent No. 1 was required to have taken a lenient view as absence period of the appellant duly supported by the medical certificate. The punishment of removal from service does not commensurate with the gravity of charges and keeping in view the dictum laid down by the apex Court in a judgment reported as 2002 SCMP 692. The impugned order dated 5.9.2005, is set aside and punishment of removal of the appellant from service is modified and converted to that of withholding of two increments for a period of two years without any cumulative effect. The appellant is reinstated in service. The period which the appellant remained out of service shall be treated as leave of the kind due.
7. No order as to costs. Parties be informed accordingly.