' SALMAN ANSARI, MEMBER Appellant, hereinabove, has filed the instant appeal under Section 10 of the Removal from Service (Special Powers) Ordinance, 2000, having been aggrieved by the order of his dismissal from service dated 27.03.2004. He preferred a departmental appeal on 04.06.2009 which has been rejected on 11.08.2009, purported to have been received by him on 21.10.2009; hence, this appeal filed before this Tribunal on 26.10.2009 alongwith an application for condonation of delay in filing this appeal.
2. Brief facts of the case are that the appellant joined respondent Pakistan Railways in Karachi Division and was subsequently transferred to Quetta Division. He was posted as Skilled Fitter in Quetta Division under the control of respondents with immediate lncharge Head Train Examiner.
While posted as such, he received a phone from native village Hyderabad that his mother is seriously ill and he was asked to reach soon at Hyderabad. He applied for casual leave which was sanctioned, thereafter, he proceeded to Hyderabad. He then took away his ailing mother to the respective hospital for treatment as he was the sole person to take care and lookafter the members of the family at Hyderabad. That due to reasons beyond control of the appellant, he himself came under grip of T.B., as had been informed by Doctor concerned. The appellant, as such, had informed his Incharge HTXR Quetta about the position and had asked for leave. The Incharge had directed him to send form duly filled in for leave, which he had sent and thereafter nothing was heard from the department about the leave either sanctioned or refused. The appellant on 04.06.2009 then visited Quetta and office of HTXR Quetta Division, where he was informed that he had been dismissed from service since 27.03.2004. The appellant obtained copy of the show-cause notice with statement of charges as well as copy of the dismissal order.
Thereafter, he filed departmental appeal on 04.06.2009 with the respondent No. 1 where he was informed that reply, if any, shall be sent at his available address. That when no reply was received, he on 05.10.2009 again visited Quetta and filed another appeal with respondent No. 1, which was considered and rejected on 07.10.2009 and conveyed by hand. It was informed to the 1 appellant that reply to his earlier appeal dated 04.06.2009 has already been sent at his home address and was directed to contact the concerned Post Office to obtain the said reply. The appellant, as stated in the memo. Of appeal, after hectic efforts, has been able to obtain copy of the letter dated 11.08.2009 by hand on 21.10.2009 and within next 30 days has approached this Tribunal, as stated above.
2. In their written comments filed on behalf of the respondents, a legal objection was taken that the appellant, being a worker/labour, this Tribunal has no jurisdiction to entertain the instant appeal.
They have admitted the grant of leave to the appellant upto 14.01.2003, but stated that after expiry of such leave, appellant did not join his duties, whereafter, a show-cause notice alongwith statement of allegation was dispatched through registered post to his home address and was issued several reminders dated 25.01.2003 and 02.03.2013 for his defence, but he failed to submit his defence. The show-cause notice was then got published Daily Jang dated 30.01.2004, directing him also to join his duties within seven days, but no response was received from him. Inquiry Committee was, thereafter, constituted which recommended imposition of major penalty, as such, the competent authority had passed the order dated 18.03.2004 awarding major penalty of dismissal from service, which order was sent to his home address through post. Arter a long period i.e. On 04.06.2009, the appellant, preferred a departmental appeal, which was considered anu rejected; hence, the appellant preferred the present appeal on 26.10.2009.
3. It was argued by the learned counsel for appellant that major penalty of dismissal has been imposed upon the appellant without holding a regular departmental inquiry. Reliance was placed on 2009 PLC (CS) 19 (Supreme Court). That the appellant, on receipt of reply dated 11.08.2009 by hand on 21.10.2009 to his departmental appeal dated 04.06.2009, within next thirty days, approached this Tribunal through the instant appeal, which is well within time. Reliance was placed on 2002 PLC (CS) 243. Hence, there is no delay in filing of the appeal and the appeal be allowed and appellant be reinstated in service w hack benefits.
4. We have heard both the learned, counsel for parties and perused the record minutely.
5. So far as the legal objections of the respondents that this Tribunal has no jurisdiction, we may point out here that the Hon'ble Supreme Court in a case reported in 2008 PSC 54 has been pleased to hold that the employees of Railway Department are civil servants and, therefore, this Tribunal has jurisdiction as all railway employees were declared as civil servants.
6. That the appellant was granted leave upto 14.01.2003 and after expiry of the leave, he did not join his duties, a letter was issued to him to join duty without any further delay, but he did not turn up for joining his duties. Thereafter, a show-cause notice was issued alongwith the statement of allegations, which was dispatched through registered post to his home address, but despite reminders dated 25.01.2003 and 02.03.2003, the appellant failed to give any reply; hence, a show- cause notice was published in daily Jang dated 30.01.2004 and no response was received. Enquiry Committee was constituted which recommended major punishment and, as such, the competent authority had passed the order dated 18.03.2004 and awarded major punishment of dismissal from service, which was sent to his home address through registered post. On 04.06.2009, the appellant filed an appeal, which was rejected. That the appellant according to respondents could have received treatment at the Railway Hospital, where every treatment is available, but he remained absent for a very long period, which under no circumstances, could be condoned.
7. That with due respect to the case-law of the apex Court under the present circumstances, in our humble opinion, we do not find the same applicable where on 01.03.2003, a show-cause notice was issued and pars-2 of the same is reproduced hereunder:--- "And whereas on the basis of documentary evidence available, it is not considered necessary to have formal enquiry against you and that proceedings are being initiated under Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000-2001 which might entail imposition of a major penalty of dismissal from service "Dismissal from Service" as specified in Section 3 of the said Ordinance."
' That statement of charges issued to the appellant is reproduced hereunder:--- ' WHEREAS, you Mr. Muhammad Sohail son of Abdul Shakoor skilled fitter under Head Train Examiner Quetta are charged with the 'Misconduct' in as under:- "that you were absconded from duty since 15.1.2003 in an unauthorized manner as reported by the Head Train Examiner Railway Quetta vide his letter No. 3/I-B, dated 22.1.2003."
' You are therefore being proceeded against under the Removal from Service (Special Powers)
Ordinance, 2000-2001."
' Thereafter, on 27.03.2004 due to the charges against the appellant, major punishment of dismissal from service was awarded by the Divisional Superintendent, Pakistan. Railways, Quetta. On 04.06.2009, a mercy appeal was filed and the reason for absence was given as sickness of his mother, who was suffering from blood pressure and was a diabetic. On 05.10.2009, another mercy appeal was moved giving the same cause of his mother being seriously ill hereby by order dated 07.10.2009, the appellant was informed that his second appeal dated 07.10.2009 for reinstatement into service had been rejected.
8. It would be pertinent to point out that after a yawning absence since 15.01.2003, the appellant had moved the mercy appeal on 04.06.2009 and the explanation of the illness of his mother contradicts his own contention as given in the memo. Of appeal, with which he had attached a medical certificate issued by Medical Officer, Shah Bhittai District Government Hospital, Latifabad, Hyderabad that the appellant was suffering from T.B. Of abdomen and was advised complete rest from 15.01.2003 to 01.06.2009. In our opinion, these excuses do not appear to be true. Rule 4(1) of the Government Servants (Efficiency & Discipline) Rules, 1973 provides:--- "4. Penalties.-- (1) The following are the minor and major penalties, namely:---
(a) Major Penalties:
(i) Censure;
(ii) Withholding, for a specific period, promotion, otherwise than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post;
(iii) Stoppage, for a specific period. At an efficiency bar in the 'mile-scale, otherwise than for unfitness to cross such bar:
(iv) Recovery from pay of the whole or any part of any pecuniary loss caused to Government be negligence or breach of order;
(b) Major Penalties:
(i) Reduction to a lower post or time- scale, or to a lower stage in a time-scale;
(ii) Compulsory retirement;
(iii) Removal from service; and
(iv) Dismissal from service.
' As mentioned in the afore-mentioned paras, the appellant was afforded every opportunity, such as, notice, reminders, as well as publication of notices in Daily Jang, but he failed to make any appearance.
9. Even otherwise, the department is empowered under Section 5(1)(iii) of the Government Servants (Efficiency & Discipline) Rules, 1973 to dispense with the inquiry. Section 5(1)(iii) is reproduced hereunder:--- "(iii) If the authorized officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall:
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action:
9. It has been held in 2007 SCMR 1560 that:--- ".... Objection of limitation was to help vigilant and not indolent. Law of limitation is to be construed strictly, coupled with the maxim that each day's delay has to be explained by the party concerned.
Where long period of delay has not been explained, then, application would merit dismissal as time-barred.
' Expiry of limitation vests a person with a valuable right. It cannot be taken away by condonation of delay. It is well-known Maxim "delay defeats equities", and the words of Lord Camdan, "a Court of equity has always refused its aid to stale demands, where a party has slept over upon his rights and acquiesced a great length of time."
In 2010 SCMR 1982 it was observed that:- "---Civil servant remained in deep slumber for more than 20 years and it was too late in the day to question the legality of additional note---No plausible justification could be furnished by civil servant for the delay, except that question of limitation was nothing more but a technicality which was an incorrect approach---Question of limitation could not be taken lightly, as in service matters such question should be considered seriously and applied strictly---..."
10. However, arriving at the conclusion that the appellant has shown gross negligence in attending to his duties and has remained absent for such a long period