' ASAD MUNIR (CHAIRMAN).--- This appeal is directed against the Punjab Labour Court No,5, Sargodha's judgment dated 11-4-2012 whereby the appellant's grievance petition for his reinstatement in service has been dismissed.
2. As gathered from the record, the facts in brief are that the appellant joined the service of WAPDA as an Assistant Lineman on 17-6-1984 and was subsequently promoted as a Lineman. On the reorganization of WAPDA, the appellant became an employee of FESCO. The appellant was granted 120 days leave with full pay from 4-5-2003 to 4-9-2003 but a few days before the expiry of his leave, the appellant moved an application (Exh.P/2) whereby he sought extension of leave without pay for a further period of two years with effect from 5-9-2003 on the ground that he was beset by family problems. The said application bears office note recorded by the Director HR and Administration FESCO, Faisalabad, that the matter was discussed with the CEO on 27-8-2003 and that a letter be written to FESCO's Manager Operation, Sargodha Region, to sanction the appellant leave for two years as per rules as the appellant had 784 days balance in his leave account.
Thereafter, vide his letter dated 3-9-2003 (Exh.P/3), the Director HR and Administration FESCO, Faisalabad, forwarded the appellant's application for extension of leave, despite being recommended, was not sanctioned nor was it refused. Presuming that two years' extension in leave had been granted to him, the appellant did not rejoin duties on 5-9-2003. Vide letters dated 7-10- 2003 and 14-10-2003 , the appellant was called upon to report for duty but there is a controversy as to the whereabouts of the appellant who claims that he did not receive the said letters with the result he did not rejoin duties. Thereafter, charge sheet dated 21-10-2003 was issued to the appellant wherein it was alleged that he had remained absent from duty without leave with effect from 5-9-2003. Pursuant to an ex-parte inquiry held on 3-11-2003, the appellant was removed from service under the Removal from Service (Special Powers) Ordinance, 2000 ("RSO, 2000") with effect from 9-1-2004. However, the appellant came to know that he had been removed from service only on 5-9-2005 when he reported for duty after availing two years' leave which had never been sanctioned. Against his removal from service, the appellant filed a departmental appeal which was rejected vide order dated 21-9-2005 whereafter he filed a service appeal before the Federal Service Tribunal which abated in the light of the Hon'ble Supreme Court's judgment in Mubeen-us-Islam's case (PLD 2006 Supreme Court 602). After abatement of the service appeal, the appellant on 6-11- 2006 filed a grievance petition which was returned by the Labour Court vide its order dated 4-1- 2010 in view of the Hon'ble Lahore High Court's judgment in Muhammad Umar Lodhi v. Managing Director (Power), WAPDA and another (2007 PLC (C.S.) 1) wherein it was held that the dictum in Mubeen-us-Salam did not apply where an employee was proceeded against under the RSO, 2000 and that such an employee could invoke the jurisdiction of the Federal Service Tribunal under section 10 of the RSO, 2000. Once again, the appellant approached the Federal Service Tribunal but during the pendency of the appeal before the FST, the Hon'ble Supreme Court delivered its judgment on 13-4-2010 in the case titled Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484) which lays down that an employee of a Government-owned or controlled corporation, having no statutory rules of service, cannot avail the remedy of appeal before the Federal Service Tribunal even if he has been proceeded against under the RSO, 2000. In view of the law laid down by the Hon'ble Supreme Court, the appellant's appeal once again abated on 8-7-2010. In these circumstances, the returned grievance petition was restored on 26-7-2010 but has been dismissed on merits through the impugned judgment on the ground that the appellant was absent without sanctioned leave and was, therefore, rightfully removed from service on the ground of misconduct.
3. In support of the appeal, the learned counsel for the appellant contends that the impugned judgment is based on a non-reading of evidence in as much as the learned Labour Court has not adverted to Exh.P/2 and Exh.P/3 which show the appellant's application for extension of leave for a period of two years was made, recommended and forwarded for the sanction of two years' leave but no decision either refusing or accepting the leave application was taken by FESCO. According to the learned counsel, such omission on the part of the FESCO to decide the leave application cannot be allowed to penalize the appellant as he was entitled to presume that leave had been granted along with the fact that the appellant was entitled to be sanctioned earned leave as per Rule 18 of the Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, considering that 784 days leave was available in his leave account out of which two years' leave could have been easily granted. Learned counsel has also referred to Standing Order 8(2) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, to argue that an employer is bound to decide the leave application. Learned counsel has referred to Muhammad Ashraf Virk v. General Manager (Administration) Millat Tractors Limited (2005 PLC 265), Muhammad Ali S. Bukhari v.
Federation of Pakistan through Establishment Secretary Islamabad and 2 others (2008 SCMR 214) and Muslim Commercial Bank Ltd v. Ghulam Muhammad Memon (2008 PLC 40) to contend that in case of absence without leave, the punishment of dismissal is not commensurate with the gravity of the charge. On the contrary, the learned counsel for the respondent-FESCO has defended the impugned judgment in all respects for the reasons recorded therein and has also contended that there is no record that the appellant filed any application for extension of leave.
4 I have examined the record in the light of the arguments advanced by the learned counsel for the parties. It is not in dispute that the appellant remained absent from duty for the period in respect of which no leave was sanctioned to him. However, it is on record that before the expiry of his sanctioned leave, the appellant through Exh.P/2 applied for two years' leave without pay which was recommended by the Director HR and Administration .FESCO, Faisalabad, as the appellant had 784 days credit in his leave account. Vide letter dated 3-9-2003 (Exh.P/3), the Director HR and Administration FESCO, Faisalabad, also forwarded the appellant's application to FESCO's Manager Operation, Sargodha Region, for sanction of two years' leave as per rules. The authenticity of Exh.P/2 and Exh.P/3, produced by the appellant, was never questioned by the Respondent-FESCO during evidence nor did the Director HR and Administration FESCO, Faisalabad, or any other person appear as a witness to deny receipt of Exh.P/1 or disown the noting on Exh.P/1 or Exh.P/2 written by the said Director. No explanation was offered by the respondent-FESCO as to why the appellant was not sanctioned the recommended leave except denying the receipt of appellant's application for extension of leave. Such a plea, being contrary to the evidence on record, has to be rejected.
However, despite the presence of Exh.P/1 and Exh.P/2 on record, the learned Labour Court accepted this plea and wrongly gave the finding that the appellant had never applied for extension of leave without adverting at all to the said documents. Having received the appellant's application for further leave of two years, the respondent- FESCO could not keep the application pending but was bound to either accept it or reject it in view of Standing Order 8(2) which reads as under:--- "A workman who desires to obtain leave of absence shall apply to the employee, who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same day. If the leave asked for is granted, a leave pass shall be issued to the workman. If the leave is refused or postponed, the fact of such postponement or refusal and the reasons therefor shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available, and if such reply is likely to reach him before the expiry of the leave originally granted to him."
5. In the present case, there is no doubt that the respondent-FESCO failed to act in accordance with Standing Order 8(2) to take a decision on the appellant's application for leave and inform him that his application for leave had been rejected. The obligation to communicate the rejection became all the more necessary given that the appellant's leave application had been recommended and forwarded by the Director HR and Administration FESCO, Faisalabad. Most probably, the appellant would not have remained absent without leave if he had been informed about the rejection of his leave application. 10 the other hand, till his application was accepted, the appellant was not entitled to presume that the applied leave had been sanctioned to him. Having applied for the long leave of two years, the appellant should not have taken things for granted even though his leave application was recommended and forwarded but should have taken care to find out the ultimate fate of his leave application. However, keeping in view FESCO's failure to communicate its rejection of the leave application after it was recommended, I do not think that the maximum penalty of removal from service ought to have been imposed on the appellant for his absence from duty without leave. In this regard, I find support from the case -law cited by the learned counsel for the appellant. Accordingly, the imposition of the lesser penalty of compulsory retirement would meet the ends of justice as it would be commensurate with the gravity of the appellant's misconduct of absence from duty. Resultantly, the appeal is allowed, the impugned judgment is set aside and the appellant's grievance petition is allowed in the terms that the penalty of his removal from service is converted into compulsory retirement from service with effect from 9-1-2004. Parties are left to bear their own costs.