JUDGMENT JUSTICE (R) ABDUL GHANI SHAIKH, CHAIRMAN - The above appeal is directed against impugned order, dated 22.2.2003 whereby appellant was removed from service under Removal from Service (Special Powers) Ordinance, 2000 against which he preferred departmental appeal on 5.3.2003 which was rejected on 27.8.2003, hence the appellant has filed the instant appeal before the Tribunal on 2,8.2003.
2. The facts leading to this appeal are that appellant had joined respondent No. 2 on 17.12.1989 and was promoted as SS Fitter in 1995. While the appellant was serving with respondent No. 2 at Karachi Division on 1.7.2002 he was transferred to Rawalpindi Division under the control of respondents Nos.
1 and 3. He was posted under Head Train Examiner (Coaching), Rawalpindi where he assumed the charge as SS Fitter on 11.7.2002 The appellant while serving as SS Fitter under the control of respondent No. 3 proceeded on 45 days sanctioned leave valid upto 13.12.2002 and left Rawalpindi for Hyderabad to avail the said leave. The appellant before expiry of his leave on 9.12.2,002 sent telegram to the respondents that his were is seriously ill and therefore, applied for further extension of 30 days leave. On 9.12.2002 respondent No. 3 sent show- cause notice alleging that appellant is absent from duty since 14.12.2002 without any information and intimation to the office of Head Train Examiner (Coaching), Rawalpindi. The appellant replied the show-cause notice through TCS to the Head Train Examiner Rawalpindi as well as respondent No. 3 stating that he had applied for extension of leave through telegram on 9.1212002. He had annexed receipts regarding extension of leave alongwith his show-cause notice, but according to the TCS office the delivery of the said reply to the show-cause notice to Head TXR, Rawalpindi as well as office of the respondent No. 3 was refused. On 11.1.2003 the appellant again applied for extension of leave for 30 days i.e.f. 14.1.2003 to 13.2.2003., He again applied for extension of one month's more leave on 10.2.2003 to the Head TXR (Coaching), Rawalpindi due to sickness of his were and children, but on 22.2.2003 respondent No. 3 removed the appellant from service by treating the period as over stay/leave without pay i.e.f.
14.12.2002 to 17.2.2003. The said impugned order of removal from service was conveyed to the appellant by respondent No. 4, against which the appellant preferred his departmental appeal to respondent No. 1 which rejected, hence the instant appeal praying to set aside the impugned order of removal from service passed by respondent No. 3 as well as order of rejection dated 8/2003 passed by respondent No. 1 and reinstate the appellant in service with all consequential benefits.
3. We have heard learned counsel for both sides and have also perused the record minutely.
4. The learned counsel for the appellant argued that order of removal of the appellant from service dated 22.2.2003 as well as appellate rejection order dated 8/2003 are non-speaking and have been issued in violation of Section 24-A of the General Clauses Act. He had placed reliance on 1998 SCMR 2268 and 2003 PLC (CS) 43.3. He further argued that the appellant had informed the department through telegrams about sickness of his were and children but the respondents did not inform the appellant about rejection of his requests which was mala fide on their part. He placed reliance on 1986 PLC (CS) 466, 1987 SCMR 602, 2003 PLC (CS) 395 and 2003 TD (Service)
384. He contended that order of removal as well as appellate rejection orders are cyclostyled and stereotyped, hence not sustainable in law. He placed reliance on 2003 TD (Service) 247 and 410. He further contended that respondent No. 3 before passing the order did not supply copy of enquiry report. He placed reliance on 1987 SCMR 1562 and PLJ 2003 Tr. C. (Services)
66. He also contended that before passing impugned order respondent No. 3 did not provide personal hearing to the appellant. He placed reliance on SBLR 2003 SC 1619 and 1994 SCMR 2232. He argued that the appellant had been intimating the respondents from time to time about sickness of his were and children but despite that show-cause notice was issued to him, in reply whereof he had denied the allegations but instead of his considering his reply, enquiry was dispensed with. He placed reliance on SBLR 2003 SC 1691 and 1994 SCMR 2232. He had argued that without observing the ,codal formalities the impugned order of removal dated 22.2.2003 was passed in a summary manner which is not tenable. He placed reliance on PLD 2002 SC 667, PLJ 1997 SC 1393 and 200S PLC (CS)
395/514. He further stated that proper procedure has not been followed by the department before awarding major penalty to the appellant.
5. On the other hand, learned counsel: for the respondents had vehemently opposed the contentions raised by the learned counsel for the appellant and stated that the appellant had remained absent from duty i.e.f. 14.12.2002 and 17.2.2003. He was habitual offender and was active member of CBR worker union and owing to his negative activities, he was transferred from Karachi Division to Rawalpindi Division. His previous service record is blemished which is apparent from the record. He contended that his behaviour with his superior was negative. He contended that he was called through registered Mail to attend his duty, but he intentionally remained absent from duty for a long period. A show-cause notice dated 19.12.2002 through registered mail on his home address was served upon the appellant but he failed to submit his defence although he was given full opportunity to defend his case properly.
6. We have given anxious consideration to the arguments advanced by both the learned counsel for the parties.
7. Admittedly, the appellant had remained absent from duty for the period mentioned above but he had sent application alongwith medical certificates of his were and children which are available on record, It is also an admitted fact that his leave was treated as leave without pay, but despite that he was issued show-cause notice and later on awarded major punishment of removal from service, It is settled law that when absence is treated as leave on full pay or without pay then the accused civil servant could not be treated as absent and at least he could not be dismissed from service on that ground. If the civil servant was treated absent then he could not be treated on leave, and if he was to be treated on leave, then he could not be treated as absent. Reliance is placed on KLR 2008 Labour & Service Cases 240. Reliance is placed on the case of Muhammad Riaz Vs. D.P.O. Khushab and another (2005 PLC (CS) 812), The Honourable Supreme Court in a case of Lahore Development Authority v. Muhammad Naeem Kachloo and another (2006 SCMR 434), while dismissing the petition had observed that once the period of absence was regularized by treating the same as leave without pay, there was no justification to dismiss the civil servant from service. The Honourable Supreme Court while dismissing the petition also issued notice to the petitioner/L.D.A. To explain as to why costs may not be imposed for filing frivolous petition, knowing well that the competent authority had treated the period during which respondent remained absent as leave without pay. In view of the fact that appellant's absence was regularized by treating the same as leave without pay, the second order awarding major -penalty of dismissal from service-was nullity in the eyes of law" and"void. Therefore, question of limitation does not arise.
8. For the aforesaid reasons, the appeal is accepted and the impugned1 order dated 22.2.2003 as well as appellate rejection order dated 27.8.2003 are set aside. The appellant is directed to be reinstated in service and the intervening period shall be treated as leave of kind due. No order as to costs.
9. Parties be informed accordingly.