Ch. Muhammad Ibrahim Zia, ACJ.--Both the captioned appeals with leave of this Court have been filed against the common judgment of the Service Tribunal dated 27.7.2011, hence, both are disposed of through this single judgment.
2. Precise summary of facts is that the appellant, in Appeal No, 148 of 2011, who was serving as driver in Central Transport Pool, Muzaffarabad, vide order dated 25.5.2006 passed by the departmental authority, was removed from service under the provisions of Removal from Service (Special Powers) Act, 2001. The appellant, feeling aggrieved from the departmental punishment order, challenged it before the Service Tribunal. The learned Service Tribunal, after completion of due process of law, through the impugned judgment, set-aside the punishment order and consequently, reinstated him into service from the date of removal, however, the period spent in between his removal and reinstatement is treated as leave without pay. The appellant (civil servant) has partly challenged the impugned judgment to the extent of treating the period of absence, from removal till reinstatement, as leave without pay. Whereas in the cross-appeal filed by respondent-authority, the judgment of Service Tribunal as whole is prayed to be set-aside.
3. Mr. Abdur Rashid Abbasi Advocate, the learned counsel for the appellant, (civil servant), after brief statement of facts, vehemently argued that the Service Tribunal has rightly set-aside the impugned punishment order being violative of statutory provisions and settled principles of justice.
He further submitted that it has been proved from official record maintained by respondent- authority, that the inquiry officer, vide his report dated 22.5.2006, recommended for transfer of the appellant to Agriculture Department but this report has been deliberately concealed and misplaced. The record further reveals that the authority, on 23.5.2006 directed the inquiry officer for proceedings according to rules but amazingly, new so-called inquiry report has been brought on record which bears the date as 22.5.2006. It has been further proved from the record that the petitioner has not been served with a show-cause notice as required under the provisions of Clauses 'a' and 'b' of sub-section (2) of Section 3 of Removal from Service (Special Powers) Act, 2001. Thus, the Service Tribunal has rightly reinstated the appellant, (civil servant). However, the impugned order to the extent of treating the alleged period of absence from the date of removal to reinstatement of appellant, as leave without pay, is not sustainable. According to settled principle of law, when the departmental order is declared against law, a civil servant is entitled to full emoluments and treating any period without pay, amounts to an uncalled punishment. Thus, to this extent, the impugned judgment requires partial modification. In support of his arguments he has placed reliance on PLD 2003 (SC) 266, 2003 SCMR 726, 1999 SCMR 1873 and 1999 PLC (CS) 600.
4. While arguing in relation to the counter appeal filed by the Government, he raised preliminary objection that the appeal is hopelessly time barred. Notice of the judgment has been served upon the counsel of respondent-authority on 3.8.2011, whereas the appeal has been filed on 7.10.2011.
Even after deduction of time spent in obtaining required certified copies of the documents, the appeal is time barred by 4 days. The authority has neither explained the delay nor has requested for its condonation. Thus, on this sole ground, the appeal is liable to be dismissed. Even otherwise, the counter appeal filed by the authority, on merit is not maintainable. The learned Service Tribunal, with specific reference to the record, has recorded findings in Paras 6 and 7 of the impugned judgment. The appellants have failed to place on record any thing in rebuttal despite being in possession of all the record. Therefore, there is legal presumption against them that the record withheld if produced, would have negated the version of the respondents-authority.
5. Conversely, Mr. Ansar Tahir Khan Advocate, the learned counsel for the respondents-authority, submitted that the appeal from the date of communication of the impugned judgment is within time. He further submitted that the Service Tribunal has wrongly recorded the findings. The appellant (civil servant) is a habitual absentee and after due process of law and holding an inquiry, alleged misconduct has been proved. Consequently, he has been rightly removed from service. Thus, the impugned judgment is not sustainable.
6. We have paid our utmost attention to the arguments advanced at bar and also gone through the record. The appeal filed by record shows that only one day has been spent in obtaining certified copies. Thus, after deduction of time spent in obtaining certified copies, the appeal is time barred by 4 days. It is settled law that for condonation of delay, the party has to explain the delay of each and every day to and satisfy the Court. Whereas neither any explanation has been tendered Thus, in the light of hereinabove discussed facts and reasons, and legal precedents, by accepting Appeal No, 148, the impugned judgment of the authority-Government, in the light of preliminary objection raised by Mr. Abdur Rashid Abbasi, is not maintainable as being time barred.
Syed Shafqat Hussain Gardezi, standing counsel of respondents-authority, was served with a notice of the impugned judgment by the Service Tribunal on 3.8.2011. He has received the notice and sent it to the appellants-authority. The appellants-authority neither explained the cause of delay nor filed any application for its condonation. Thus, it is proved from the record that the appellants-authority got the knowledge of the decision on 3.8.2011. It hardly requires any deliberation in the light of settled principle of law that the knowledge of counsel is knowledge of party. Thus, limitation started running from 3rd day of August 2011, the date of service of notice upon counsel for the appellant authority but the appeal has been filed on 7.10.2011. The perusal of nor any request for condonation of delay has been made. Thus, preliminary objection prevails and it is declared that the appeal filed by the authority is time barred.
7. Even otherwise, we have gone through the record. The Service Tribunal has recorded its findings after minute perusal of record. The Service Tribunal has reproduced some parts of official record maintained by the authority. A perusal of which reveals that the inquiry officer recommended for repatriation of appellant (civil servant) to his parent department. Despite this, in the record, another inquiry report of same date is referred on the basis of which he has been removed from service. The appellant-authority, in memo of appeal has not disputed these findings of Service Tribunal which are based on the record. Neither the inquiry report nor any other material has been brought on record, thus, findings recorded by the Service Tribunal appear to be valid. The authority has in his comments, copy of which is placed on record as Annexure C/1, admitted in the contents of Para 4 of the appeal that the appellant (civil servant) applied for leave. It is further proved from the copy of notice placed on the file of this Court as Annexure "E", that the appellant (civil servant) submitted an application for sanction of leave. This shows that the appellant has not intentionally remained absent. The learned Service Tribunal has recorded specific findings in Paras 6 and 7 of the impugned judgment which speaks as follows:-- {{URDU TEXT}}
8. The authority has failed to bring on record anything in rebuttal to the findings of Service Tribunal.
It appears that the findings recorded by the Service Tribunal are based on record and it does not call for any interference. Thus, findings recorded by the Service Tribunal to the extent of reinstatement and setting aside the removal from service order, are upheld. However, the finding of Service Tribunal for treating the period of alleged absence, from date of removal till reinstatement as leave without pay is not consistent with the principle of law. According to celebrated principle of administration of justice, when the punishment order passed by departmental authority is found to be illegal and consequently, the civil servant is reinstated, then civil servant is entitled to all the emoluments. The learned counsel for the appellant, Mr. Abdur Rashid Abbasi has rightly placed reliance upon the judgments of Apex Court of Pakistan in a case titled Sirajuddin vs. Govt. of Sindh, reported as 1999 PLC (CS) 600, wherein in a case involving the identical facts and law points, has held as following:-- "...The appeal was contested on the ground that the period from 5.6.1990 to 20.6.1993 was treated as leave without pay because no leave was available on the credit of the appellant. None of the other contentions of the appellant has been controverted. It is quite clear that the appellant was acquitted honourably. The case is, thus, fully covered by the aforementioned notification. The reason given by the respondents for treating the period in question as leave without pay is sufficient to indicate that the respondents really did not intend that the appellant remains without pay during the period in question."
Similar view has been reported by the Apex Court of Pakistan in a case titled Ghulam Qadir v.
Nazamur Rehman, reported as 2003 SCMR 726, which speaks as under:-- "... Mr. Muhammad Zaman Bhatti, learned counsel for the respondents concedes the case of the appellant. He states that in view of the case reported as Ali Nawaz v. Pakistan Railways through Chairman/Secretary and others (1999 SCMR 1873), the appellant is entitled to back benefits from the date of his removal to the date of his reinstatement. In the above reported case, the removal of the petitioner of said case was found unjustified and it was held that Service Tribunal was not right in denying back benefits in such circumstances.
In consequence, we allow this appeal, set-aside the order of the Tribunal only to the extent of back benefits and order that all back benefits shall be paid to the appellant from the date of his retirement to the date of his reinstatement."
Service Tribunal is modified and it is held that the appellant (civil servant) is entitled to all the emoluments according to law for the period consumed in between removal and reinstatement.
The period of alleged absence will be treated as leave, admissible under rules.