1. SHAHID ANWAR BAJWA, J. - The petitioner was employed by Civil Aviation Authority and was at the relevant time working as Corporate Manager Finance. He was granted 90 days Ex-Pakistan leave for visiting Saudi Arabia for Umra and relatives in Toronto (Canada). Leave was to commence on 1.8.2001 and to expire on 29.11.2001. The petitioner availed leave w.e.f. 3.9.2001 and was therefore required to resume duty on 3.12.2001. The petitioner did not resume his duty, rather he sent an application from Canada for grant of leave and a loan of Canadian $ 9,000/-. On 13.12.2001 show- cause notice to the petitioner and thereafter vide order dated 13.3.2002, the petitioner was dismissed form service. The petitioner approached Federal Service Tribunal and after abatement in view of the pronouncement by the Supreme Court in the case of Muhammad Mobilisation Vs. Federation of Pakistan and others (PLD 2006 S.C. 602), filed C.P. In this Court. That petition was allowed vide order dated 29.5.2009. It was held that the Removal from Service (Special Powers)
2. Ordinance, 2001 covered employment Of the petitioner and therefore disciplinary action should have been taken under the provisions of Ordinance of 2000 and not service regulations of the respondent Civil Aviation Authority. Consequently, the petitioner was ordered to be reinstated in service, It was further observed that the authority may take fresh disciplinary action against the petitioner in accordance with the provision of the Removal from Service (Special Powers)
3. Ordinance, 2000. Back benefits were to be held depend upon result of fresh disciplinary proceedings and period of four months was prescribed for such proceeding.
4. After reinstatement of the petitioner on 19.6.2009 statement of allegations was issued to the petitioner. The allegations put in the statement of allegations reads as under:--
(a) "You, Mr. Fakhar-uz-Zaman Khan Mazi (CAA/0780-5386/ACCI...). Corporate Manager Finance (P.G.00) were granted 90 days Ex- Pakistan leave w.e.f. 1.8.2001, with a condition that you will not be allowed any extension in the said leave or draw your salary in foreign exchange, In spite of the aforesaid conditions, you had not only applied for extension in your Ex-Pakistan leave but also requested to grant of Canadian $ 9000/- loan from CAA.
(b) You were to resume your duty on 3rd December, 2001) but you failed to do so and instead of joining duty on due date you submitted an application for extension in leave and grant of loan of Canadian $ 9000/- to purchase return tickets for you and your family members to return back to Pakistan, whereas as per Immigration Rules you were supposed to travel abroad with a return ticket.
(c) Your request had not been acceded to by the Competent Authority and you were informed accordingly. Thus, you remained absent from duty w.e.f. 2nd December, 2001 to 14th March, 2002 (103 days) without any authority.
5. Thereafter, ail correspondence made by you with CAA reveals your presence in Canada as per your correspondence address where you remained for a long period."
6. The petitioner submitted a reply and enquiry followed. Thereafter after due codal formalities, penalty of removal from service was imposed on the petitioner vide order dated 1.10.2009. This C.P.
7. Has been filed to challenge and impugned order of removal from service.
8. Learned counsel for the petitioner submitted that order passed by this Court on 29.5.2009 has been accepted by the respondent Authority and therefore the only question before the Authority to get back benefits and therefore petitioner could not be dismissed from service. Learned counsel next submitted that petitioner has been punished. Learned counsel submitted that misconduct had been proved in the inquiry. Punishment was harsh and inquiry officer acted mala i.e. Learned counsel relied upon The Punjab Provincial Cooperative Bank Ltd. v. Muhammad Salim Butt and 2 others (PLD 1996 SC 596), National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others (1993 SCM R 105), M/s. Karam Ceramics Ltd., Karachi through Director v. Zawar Hussain (1998 PLC 41) and Civil Aviation Authority through Director General v. Javed Ahmad and another (2009 SCM R 956).
9. Mr. Khalid Mehmood Siddiqui, learned counsel for respondent Authority referred to the leave application which stated that the petitioner wanted to spend 15 days in Saudi Arabia and thereafter 2-14 months in Canada to visit his relatives. Learned counsel read from the proceeding of enquiry available at pages 167 and 169 of the i.e and contended that the absence of the petitioner was deliberate and wilful and the petitioner has come to this Court with unclean hands.
10. He submitted that petitioner returned to Pakistan after almost six years stay in Canada.
11. We have considered the submissions made by the learned counsel and have gone through the relevant case- law cited at the Bar.
12. Taken up first contention of the learned counsel for the petitioner, that in terms of order passed by the Court on (sic) before .Employer was that of back benefits and therefore no penalty could be imposed on the petitioner. The operative part of the order which was earlier passed by the D.B. Of this Court is in the following words:-- "We have gone through the judgments cited by the learned counsel for the petitioner and they seem to have application to the case of the petitioner inasmuch as while Removal from Service (Special Powers) Ordinance, 2000 was in the field, the respondent initiated disciplinary proceeding against the petitioner through show-cause notice dated 13.1.2001 under Civil Aviation Authority Service Regulations and ultimately dismissed the petitioner from service disputed before us by the learned counsel for the respondent that disciplinary proceedings against the petitioner were initiated and culminated under the Civil Aviation Service Regulations, In view of this admitted fact and following the dictum laid down by the Hon'ble Supreme Court in the judgments referred to above, we hold that such an action against the petitioner was without lawful authority and of no legal effect and set aside the order dated 14.3.2002 by which the petitioner was dismissed from service and direct that he be reinstated in the service. The respondent may take fresh disciplinary action against the petitioner in accordance with the provisions of Removal from Service (Special Powers) Ordinance, 2000. The matter of back benefits will depend upon the result of fresh disciplinary proceedings. The fresh disciplinary proceedings should be completed by the respondent within a period of four months, In case the proceedings against the petitioner is not concluded within the above period, he will become entitle to back benefits also."
13. Bare reading of the above indicates that opportunity was given to the employer to "take fresh disciplinary action". Thereafter it was stated that back benefit would depend upon results of fresh disciplinary proceedings, It was nowhere stated in the order that fresh disciplinary action would be for the purpose of determination of back benefits, It was to be disciplinary action in accordance with the provision of the Removal from Service (Special Powers) Ordinance, 2000. A priori at the conclusion of the action if found guilty by employer and penalty stipulated by the Ordinance of 2000 could follow, therefore contention of the learned counsel is misconceived.
14. Second ground urged by the learned counsel was that since he was dismissed in the first round and then removed from employment in the second round it amounted to double jeopardy which is barred by Article 13 of the Constitution. This contention is misconceived. The punishment of dismissal in the first round has been set aside by this Court vide order dated 29.5.2009 (quoted above). When an order of dismissal is set aside, it is deemed to mean that such order of dismissal had been never passed. Therefore removal from service does not amount to punishment twice.
15. Moreover, order dated 29.5.2009 gave the employer option to take fresh proceeding in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000. This^was accepted by the petitioner. He could have gone to the Supreme Court and pleaded that if after such fresh proceeding he is punished of such proceeding in itself amount to double jeopardy. The petitioner cannot plead double jeopardy in respect of conclusion of such proceeding. This is additional reason for which second contention of the learned counsel deserves to be repelled.
16. We will take the three remaining contentions together. As stated above, after availing three months' leave the petitioner was required to return to Pakistan on 3.12.2001 but the petitioner did not return to Pakistan and he applied for extension of leave arid loan of Canadian $ 9000/-. His statement was that he lost his purse which contained about 13000 $ on 23.11.2001 and therefore he needed money for the purpose of travel for coming back to Pakistan. Thereafter he also stated that he lost his passport on 2.2.2002 and per force he had to stay in Canada. At pages 167 and 169 of the Court i.e the following is recorded during proceedings of inquiry:-- "Q.
22. When did to get the passport renewed?
17. A. I get my passport renewed from Vancouver in 2002.
18. Q.
23. How did you manage to live in Canada without renewal of the passport and extension of visa?
19. A. I applied for refugee status in Canada.
20. Q.
24. When did you apply for refugee status in Canada along with relevant documents (question by Inquiry Committee)?
21. A. As I remember, firstly I applied to get the renewal of mv passport and when dismissal order was issued and mv visa was expired I applied for refugee status.
22. Q.
25. Can you provide documentary evidence in support?
23. A. I will search and if found I will produce the copy.
24. Q.
26. When did you receive the dismissal order?
25. A. In the laws week of March, 2002.
26. Q.
27. What was your status of stay during the period of February, 2002 to March, 2002?
27. 2011 Muhammad Fakhar-uz-Zaman Khan Niazi V. Pakistan Civil C.C. 209 Aviation Authority (Shahid Anwar Bajwa, J.) '
28. A. I applied for permission to stay in the absence of valid documentary during that period Q. 29.
29. Would you please provide copies of your and your family passports alongwith original?
30. A. It is mv personal documents and please quote me the relevant rules for demanding such documents.
31. Q.
30. Correspondence made by me from. Vancouver Canada is sufficient proof of my stay in Canada. Further j proceeded abroad on approved leave and demanding such documents at this stage (after eight years) is not relevant to the alleged charge of absence from duty "
32. As noted above petitioner ended up staying in Canada for six years and that fact is confirmed by learned counsel for the petitioner. If not giving a loan of 9000 $ is the reason for not returning to Pakistan one left wording as to how petitioner, his wife and three children survived in Canada for six long years, In the enquiry the petitioner has not been able to produce any document substantiating that he lost his Pakistani passport and how did he manage, not in respect of financial resources, but in respect of legal status to stay in Canada for six long years. He admitted that he applied for refugee status and he refused to provide copy of Pakistani passport and other documents to the enquiry committee. Therefore it appears that his stay in Canada was a pre- determined and pre-decided part of the plan. Loss of money and loss of passport could not be believed without producing any documentary proof.
33. The case-law relied upon by the petitioner is of no help to him. In Javed Ahmed's case (supra) it was held that High Court has power to give direction for back benefits, In Karam Ceramics' case (supra) Zawar Hussain was issued charge-sheet for unauthorized closing down of machine and for insulting and abusing the foreman. He was dismissed Labour Court reinstated him with full back benefit but Tribunal while it maintained order of reinstatement reduced back benefit to 50%. The Tribunal also observed that back benefit has been reduced due to defective enquiry and if the employer so choose they could hold fresh enquiry and if employer again found him to be not guilty full Back benefits would be granted to him. After fresh enquiry employee was again dismissed and the Tribunal held that this could not be done. No such stipulation such as was made by the Tribunal in Karam Ceramic's case was made in the order dated 29.5.2009 by this Court.
34. In Muhammad Salim Butt's case (supra) it was held that if the enquiry was found to be defective the dismissal order should be set aside but in all fairness employer should be given opportunity of conducting fresh proceedings, In the case of National Bank of Pakistan (supra), It was held that if dismissal, or removal was unconditionally set aside back benefits have to be paid. However if it was conditional and departmental enquiry could still to be made, back benefits would be withheld till final determination with regard to conduct of the employee. All of these cases are clearly distinguishable and are not applicable to facts of present matter.
35. The petitioner obtained leave for three months and ended up staying in foreign country for six years. He applied for refugee status. He failed to produce documents to substitute grounds for seeking refugee status, loss of money and loss of passport. The employee wanted his feet in both the boats; boat of employment secure in Pakistan and a boat marooned in greener pastures of Canada, at the same time adopting patently flimsy pretext for staying abroad. He does not deserve granting discretionary relief in the exercise of Constitutional jurisdiction. Consequently this petition is dismissed in limine, along with listed application.