' ALI BAQAR NAJAFI, J. --- The petitioner, through this Constitutional Petition, seeks setting aside order dated 06.09.2011 passed by respondent No, 4, whereby petitioner's representation dated 18.06.2011, 18.08.2011 against the dismissal from service was considered by the authority and rejected as he has already availed the right of appeal with further prayer to re-instate him into service.
2. Brief facts giving rise to the filing of this writ petition are that the petitioner was appointed as "Mauwan" on 13.09.1989 and ever since was performing his duty. Due to the collapse of the residential house of his parents on account of heavy rain he went to his village Kotli Sattian, District Rawalpindi on 30.10.2001 but reported on 10.11.2001. He was allowed to resume duty by respondent No, 3 but was issued a show-cause notice later on under Removal from Service (Special Powers)
Ordinance, 2000 for absence from duty since 30.10.2001. The petitioner replied to the show-cause notice by explaining his absence from duty. Subsequently, without issuing any prior notice and giving any personal hearing, on holding inquiry the petitioner alongwith his other 8 employees were dismissed from service on 08.01.2002 through a consolidated order passed by respondent No, 3/Works Manager Signal Shops vide order dated 11.01.2002. The departmental appeal filed by the petitioner before the General Manager/respondent No, 1 was dismissed vide order dated 20.06.2002, whereafter, one of the dismissed employee namely, Farman Shah (Muawan) preferred appeal No, 620-L.C.S (20) before the Federal Service Tribunal whereas the petitioner alongwith 2 other employees instituted a petition before NIRC, Lahore which was dismissed on account of wrong forum in the year 2005, ' However, on 08.11.2008 the appeal of said Farman Shah was accepted by the Federal Service Tribunal declaring the dismissal order dated 11.01.2002 as violative of provisions of Removal from Service (Special Powers) Ordinance, 2000 and also against the principle of natural justice. He was reinstated into service w,e,f, the date of his dismissal and his 56 days absence was treated as extra-ordinary leave without pay and he was taken on duty vide office order dated 27.11.2008. The petitioner, after coming to know, about the order dated 27.11.2008 filed representation to respondent No, 4 to grant him the same relief, which was rejected on 06.09.2011, hence this writ petition.
3. In report and parawise comments submitted by the respondents, it is stated that the petitioner was a regular absconder and has been punished on four occasions on similar account in service.
Gives reference to the order dated 09.04.1997 in which he was dismissed from service, whereafter the appeal was accepted on 04.09.1998 and in the years 1995, 1998, 1999 he was mentioned as unauthorized absentee but his appeal was allowed and he resumed his duty on 22.11.2001. He prays for dismissal of the petition.
4. Arguments heard. Record perused.
5. Main contention of the learned counsel for the petitioner that since the dismissal order dated 11.01.2002, whereby 9 officials including the petitioner were dismissed from service under the Removal from Service (Special Powers) Ordinance, 2000 by treating their absence period as absence without leave, whereafter Farman Shah filed his appeal against the said order in which his date of absence was mentioned as 02.10.2001 and the same was allowed, therefore, the petitioner is also entitled to the same relief in view of the judgment of the apex Court titled "Government of Punjab, through Secretary Education, Civil. Secretariat, Lahore and others v. Sameena Parveen and others" [2009 SCMR 1]. However, on the other hand, learned counsel for the respondents submits that such benefit cannot be extended to the petitioner.
6. Farman Shah as well as the petitioner alongwith others were dismissed from service on account of absence from duty through a consolidated order which was challenged before the Federal Service Tribunal where his appeal was allowed, termination order was set aside and Farman Shah was ordered to be re-instated. Question as to whether absence from duty required a subjective approach involving evidence. The petitioner appears to be habitual absentee from duty as is reflected from the record presented by the respondents mentioning that at least twice he was dismissed from service but was reinstated. Even in this Court or before the NIRC, no documents were presented to substantiate that the petitioner remained absent on account of demolition of the house of the parents of the petitioner. In the judgments cited by the learned counsel for the petitioner at bar titled as "Ahmad Din and another v. Government of Khyber Pakhtunkhwa Agricultural, Live Stock and Cooperatives Department, Peshawar through Secretary and 3 others [2014 PLC (C.S) 806], Prof. Dr. M. Islam Gouhar v. University of Peshawar through Registrar and 5 others [2014 PLC (C.S) 265], Dr. Lqbal Jan and others v. Province of Sindh and others [2014 PLC (C.S)
1153], Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 Supreme Court 195], Sadaqat All Khan v. Collector! Land Acquisition and others [PLD 2010 Supreme court 878], Hameed Akhtar Niazi v. The Secretary, Ehstablishment Division, Government of Pakistan and others [1996 SCMR 1185], Muhammad Sarwar Khan and others v. Government of Pakistan and others [1998 SCMR 2197] and Marvi Memon v. Federation of Pakistan and others [PLD 2011 Supreme Court 854], it was held that if the Court or authority has decided a question of law the benefit of which can be extended to the persons who are not required to approach the said Court for the relief as it will increase the agony of such person and will over-burden the Court, therefore, benefit of such decision can be extended to that individual. If the absence from duty the government servant has been regularized he can be penalized by imposing penalty but in the instant case his absence from duty was not regularized as per record. It was held in "Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others"
[2009 SCMR 1], which reads as under:- "Administration of justice. If a Tribunal or the Supreme Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servant also, who may not be parties to that litigation, instead of compelling them to approach the Tribunal or any other legal forum. "
7. The order of the Federal Service Tribunal was an order relating to the appellant namely, Farman Shah in which his date of absence is 02.10.2001 whereas that of the petitioner is 30.10.2001, therefore, case of the petitioner is on different premises and nowhere it was held by the Federal Service Tribunal that any employee absented himself on any ground may be reinstated in service by treating his absence as authorized absence. In my humble view benefit of the judgment passed by the Federal Service Tribunal cannot be extended to the petitioner as it is the judgment of persona where specific relief was allowed to Farman Shah.
8. In this view of the matter, this writ petition having no merit is dismissed.