' Syed Arshad Ali, Member.--The appellant through the instant appeal assailed the impugned order dated 07.06.2002 whereby major penalty of removal from service was imposed upon the appellant for remaining absent from duty unauthorized. The appellant preferred departmental representation for reinstatement dated 13.06.2002. The respondent kept quiet and the representation remained un-responded till rejection order issued by the respondent on 15.06.2011; hence, this appeal praying therein that the impugned order of removal from service may be set- aside and the appellant be reinstated with full back benefits.
2. The factual position in brief is that the appellant was appointed as Helper (BPS-02) in the Diesel Shed, Karachi Cantt, Pakistan Railways on 03.09.1989 and promoted to (BPS-03) and lastly working as Helper (BPS-03) under the control and command of Works Manager (Diesel Shed), Pakistan Railways, Karachi Cantt.
3. Owing to the illness of his mother, he remained absent from duty w.e.f, 28.06.2001. Such report was sent to higher authority for taking action against the appellant. The Assistant Works Manager- II issued the charge sheet alleging therein that the appellant was absent from duty w.e.f, 28.06.2001.
Such report was sent to higher authority for taking action against the appellant. The Assistant Works Manager-II issued the charge sheet alleging therein that the appellant was absent from duty w.e.f, 28.06.2001 without prior approval and intimation. Subsequently, a show-cause notice was also published in newspaper daily "Express" under the Removal from Service (Special Powers)
Ordinance (2000 RS0), for remaining absent unauthorized without approval and intimation w.e.f, 28.06.2001. The appellant was removed from service after observing the due process. The appellant preferred departmental representation which remained un-responded for a considerably long period of about eleven years i.e, on 13.10.2011; hence the appellant had filed this appeal within next thirty days.
4. The appellant had moved an application under Section-5 of the Limitation Act read with Section-7 of the Service Tribunal Act pleading in the accompanying affidavit that the period for filing of appeal may be condoned, for the appellate authority rejected his representation against his removal from service vide letter dated 13.10.2011 received by the appellant and appellant filed this appeal within statutory period of next thirty days.
5. The respondents in parawise comments submitted that the appellant remained absent unauthorisedly w.e.f, 28.06.2001; his immediate in charge GFO/Karachi Cantt had reported his unauthorized absence from duty for which proceedings under Removal from Service (Special Powers) Ordinance (2000 RSO) were initiated against the appellant. A charge sheet issued, inquiry officer was appointed but the appellant chose not to attend and defend himself. Thereafter, his name was included among those employees who were remaining absent from duty unauthorisedly and was published in the newspaper daily Express on 23.03.2002 for wider publicity so that he may be able to come to know, for if any reason the appellant could not receive the charge sheet/show-cause notice and disciplinary proceedings. The respondents in parawise comments recalled that 15 days notice was given for submission of his departmental appeal but the appellant submitted the appeal belatedly after considerable time had since elapsed.
6. Learned counsel for the appellant argued that neither the charge sheet was served upon the appellant nor the show-cause notice published in daily Express was in his knowledge. Moreover, it was incorrect that the departmental appeal was not submitted within time. The respondents took considerably long time in rejecting the appeal in the year 2011. He further contended that major penalty cannot be imposed upon the appellant without conduct of regular inquiry; hence, removal from service is void of force. The learned counsel placed reliance on 2002 PLC (CS) 243, 2002 SCMR 1383 and 2003 SCMR 826 where it was held that, appellant had two choices to come to the Tribunal, either against the original order or against the appellate order. The instant appeal has been filed on receipt of appellate order; hence, within time in terms of statutory provision of Section-4 of the Service Tribunals Act, 1973. He also placed reliance on 1995 SCMR 776 arguing that the appellant had been waiting for reply and on getting reply, within next 30 days filed the instant appeal in Court which is within time. It was also submitted that the order of removal dated 07.06.2002 is void as there was no departmental inquiry and no personal hearing and major penalty had been imposed. He relied on SBLR 2005 TR 111. Learned counsel further argued that appellant had filed the instant appeal on getting appellate authority's rejection order within time, delay for responding the appeal is at the shoulder of Railway department and relied on 1997 SCMR 287, 1984 PLC (CS) 754 and 2004 SCMR 527. Learned counsel further argued that major penalty for proceedings were without prior intimation and approval. He placed reliance on 2006 SCMR 434 and 2010 SCMR 1546.
7. In the instant us, it is difficult to ascertain as to why appellant remained incommunicado?
Whether was it his ignorance about the procedure or owing to some other factors, which were hitherto unknown as he remained completely ur aware of the happenings about his career in his organization? He was reported for absence from duty without sanction of leave; an inquiry officer was appointed; issued show-cause notice, charge sheet was issued so mush so on non-receipt of any information or attendance; further show-cause notice was published among other delinquents in the newspaper daily "Express".
8. Notwithstanding procedural and legal formalities were completed by the respondents; the imposition of 'major penalty without conduct of regular inquiry is not warranted as held in a number of Hon'ble Supreme Court's rulings. But at the same time, the enigma is the absence of appellant from the proceedings. It cannot be said with any degree of certainty that the appellant himself chose not to attend or he wilfully avoided to attend the proceedings or he genuinely could not receive any communication from respondent-organization about the development in his case of disciplinary proceedings of leave without prior sanction. In such a situation although misconduct is established beyond any shadow of doubt but it is a matter of judgment as to what extent, we remain alongside the proverbial justice, equity and fair-play, should we go alongwith the imposition of major penalty of removal from service. It is a question of fact that in the case of appellant, who is a low paid (BPS-03) labourer/helper in the Railway Shed who went on leave without approval on account of mother's illness probably following refusal from the sanctioning authority is warranted or justiciable or not?
9. In view of above discussion, we are of the considered opinion that imposition of major penalty is disproportionate to the omission and commission on the part of appellant. While condoning the delay, it is, therefore, ordered that his major penalty be converted into minor penalty of stoppage of his increment for a period of two years in terms of Rule-4(1)(ii) of Government Servants (Efficiency & Discipline) Rules, 1973. However, in view of the circumstances of this case, we direct that the question of back benefits be decided by the competent authority in accordance with the instructions contained at S. No, 155 of ESTA CODE (Edition 2007, Vol-II) and the dictum of the judgment of the Hon'ble Supreme Court of Pakistan, reported as 2010 SCMR 11. No order as to costs.
10. Parties be informed accordingly.
(R.A.) .