-MOAZZAM HAYAT (MEMBER).--- Mrs. Wajiha Mohsin Shahzad did her Bachelor in Civil Engineering and was appointed as Assistant Director on 30-10-2006 by the National Highway Authority, respondent No,
1. She was proceeded against under the rules of the Authority, called NHA E&D Rules, 1995, and was awarded the penalty of dismissal from service vide order dated 15-8-2011. This order was received by her on 23-8-2011. Her departmental appeal dated 13-9-2011 was received by the department on 5-10-2011. It appears that no order was passed on the departmental appeal. She was, therefore, constrained to file the present appeal.
2. The facts of the case are that the appellant submitted an application for ex-Pakistan leave for four years w,e,f, 1-11-2008. It was stated by her that she wanted leave for the treatment of her child and for doing her Ph.D in Auckland, New Zeeland. She was informed vide letter dated 17-10-2008 that she was not entitled to four years leave as she had only two years continuous service to her credit. In the same letter she was further informed that she could get leave on full/half pay and EOL (without), for two years. On 21-10-2008 she submitted an application for grant of two years leave, as advised. Her application was recommended by Director Personnel on 28-10-2008. She left for New Zeeland. However, her request was declined and she was conveyed the rejection order vide letter dated 20-1-2009. She was issued a show cause notice on 26-3-2011 wherein it was alleged that she had left station without sanction of leave and was thus absent from duty w,e,f, 25-12-2008.
It was on these charges that she was finally awarded penalty of dismissal from service.
3. The respondents have resisted the appeal. It is maintained that being a civil servant it was obligatory for the appellant to have waited for sanction of leave but she did not wait and left for a foreign country without sanction. It is thus maintained that the appellant was awarded penalty in question strictly in accordance with law. A legal objection has been taken that the appeal is time- barred.
4. We have heard the learned counsel for the parties and have also perused the record.
5. According to the appellant she had received the dismissal order dated 15-8-2011 on 23-8-2011 and had filed departmental appeal on 13-9-2011. On the other hand, the contention of the respondents is that the departmental appeal had not been filed within 30 days and it was filed on 5-10-2011, beyond the limit of 30 days. In this regard, we shall uphold the contention of the appellant that she had filed departmental appeal on 13-9-2011 well within 30 days from the date she had received the impugned order. The respondents might have received the departmental appeal on 5-10-2011 but is the date of presentation of departmental appeal which is material. It is not controverted by the respondents that in fact the appellant had submitted her departmental appeal on 13-9-2011. We are, therefore, constrained to .Hold that the departmental appeal was filed on 13-9-2011 but was received in the office of the respondents on 5-10-2011. The date of institution of appeal is material. In the circumstances, we hold that the departmental appeal, filed on 13-9-2011, was within time. The objection is over ruled.
6. On merits the appellant has no case. As a civil servant it should have been in her knowledge that she could not leave for a foreign country without sanction of leave. The appellant had definitely applied for leave. A proposal had been submitted by the Director Personnel on 21-10-2008 for sanction of leave to her for two years. But this was only a proposal. It was not a sanction order. The appellant could not leave the country or the place of her duty without sanction of her leave. It was held in 2009 SCMR 1125 that mere submission of application for leave by an employee to his department would not mean that leave had been granted in his favour. It was further held that the civil servant was duty bound to inquire from the department about the fate of his request for grant of leave. The Bench of the Supreme Court comprised of My Lord Mr. Justice Iftikhar Muhammad Ch., Chief Justice of Pakistan, My Lord Raja Fayyaz Ahmed and My Lord Ch. Ejaz Ahmed. The rule is fully applicable to the facts of the present case. It was thus for the appellant to have inquired about the fate of her application for leave. Her application had been rejected on 20-1-2009. The respondents had not taken a very long time in deciding her leave application. She could not leave the place of duty without ascertaining the result of her application for leave. In fact she could not leave since her request had finally been declined on 20-1-2009. She had definitely committed a serious misconduct in leaving the country without permission. She had also remained absent from duty for which show-cause notice was issued to her.
7. In the above circumstances, we hold that the appellant had committed a serious misconduct for which he deserved major penalty. However, we agree with the learned counsel for the appellant that the country needs services of qualified and talented persons. If the penalty of dismissal from service, awarded to the appellant, is upheld, she would not be in a position to find service in any Government department. The country shall thus be deprived of her services. Taking this into consideration, we convert the penalty of dismissal from service into her removal for service.
8. There shall be no order as to costs. Parties 'shall be informed.