' SYED NASIR ALI SHAH, MEMBER.--- Through this appeal the appellant has impugned and assailed the order dated 4.3.2014 passed by respondent No,2 whereby inter alia major penalty of removal from service was imposed upon her.
2. For the proper appreciation of the controversy involved in this appeal it would be apt and imperative to acquaint and assimilate the facts preceding the filing of this appeal.
3. Compendiously and chronologically put, Mrs. Sadia Masood appellant while posted as Deputy Commissioner (I.R) Enf-5, Zone-XII, Lahore was departmentally proceeded against on the following allegations:- "(i) A cursory glance at the leave record reveals that you are least interested in your service. Your casual and non-serious attitude towards attending the office has gone beyond all limits of obduracy. Your sheer ineptitude in the performance of official duties is also a glaring example of stubbornness.
(ii) You absented yourself from duty from 11.08.2009 to 22.05.2011 for 650 days. After short interval of 8 months you have submitted application dated 13.02.2012 for grant of 5 years EOL, without pay and absented yourself from duty without any intimation to the Chief Commissioner concerned and sanction of leave by the competent authority.
(iii)You had illegally drawn Pay/regular allowances and special allowance during absence from 11.08.2009 to 22.05.2011 for 650-days."
' In her reply to the Charge Sheet the appellant controverted the allegations. She cited her maternity and pregnancy issues besides serious and protracted illness of her son which, according to her, had prompted her to seek and obtain leave from the office. Ms. Talat Altaf Khan, Commissioner (IRS/BS-20) Regional Tax Office, Lahore was appointed as Inquiry Officer. However, afterwards the Inquiry was entrusted to Syed Nadeem Hussain Rizvi, Commissioner, Inland Revenue. The latter conducted inquiry against the appellant in which she fully participated. Charge No,I was split into three sub-charges namely; (a) Least interested in service; (b) Casual and non- serious attitude towards office charge; and (c) Stubbornness and sheer ineptitude in performing of official duties. Sub-charge (b) was proved. However, sub-charges (a) and (c) were not proved.
Charges II and III were partially prosted. On the basis of this Inquiry Report the Authorized Officer recommended the imposition of major penalty upon the appellant. Thus vide impugned order dated 4.3.2014, as noted above, the aforesaid major penalty of removal from service was imposed upon the appellant.
4. It appears that the aforesaid Notification dated 4.3.2014 whereby impugned penalty was imposed upon the appellant was uploaded on the FBR Website on the same date. Upon gaining knowledge of the impugned order, on the following date, that is 5.3.2014 me appellant addressed a letter to respondent No,2 in which she sought review of the aforesaid Notification. She explained that during personal hearing Member (Admin) Shahid Jatoi had given her two options, either to join service or resign from service. She as such prayed that her resignation may be accepted. But on 1.4.2014 Uzma Munir, Secretary FBR informed the appellant that her request of resignation had not been acceded to.
5. Driven by this on 5.5.2014 the appellant filed departmental representation to the President of Pakistan through Chairman FBR. But on 25.6.2014 the appellant was informed by respondent No,2 that appellate Authority in her case was honourable Prime Minister and not the President. As such the appeal filed by the appellant was withheld under Rule 7 of The Civil Servants (Appeals) Rules, 1977. The appellant was thus advised to resubmit her appeal to the appellate Authority. Accordingly on 2.7.2014 the appellant addressed departmental representation to the Prime Minister of Pakistan which remained unresponded.
6. Against such a ticklish backdrop the appellant brought this appeal by inter alia maintaining that the impugned order is against law and facts and contrary to the rules. She maintained that due to insurmountable family and health problems she had to seek and obtain leave. She added that having put in more than ten years' service sufficient leave was available at her credit and as such the same ought to have been granted to her. The appellant thus prayed for the setting aside of the impugned order dated 4.3.2014 with consequential relief of reinstatement into service with back benefits.
7. The appeal was resisted by the respondents. It was maintained that the appeal is barred by time.
On merits it was maintained that the appellant was in the habit of remaining absent without permission of the competent Authority and as such departmental proceedings were justifiably initiated and concluded against her. It was further maintained that after fulfilling all nodal formalities impugned penalty was rightly imposed upon the appellant.
8. We have heard the learned counsel for the parties and gone through the available record with their able assistance.
9. We first advert to the objection of the respondents regarding time barred nature of this appeal.
In this case, as noted above, the impugned order was passed on 4.3.2014 while departmental representation was filed by the appellant on 5.5.2015, beyond the statutory period of 30-days.
Mr.Ibrar Ahmad, Advocate learned counsel for the respondents has taken us to the letter dated 5.3.2014 of the appellant addressed to the Chairman FBR wherein she after gaining knowledge of the impugned order had requested for the acceptance of her resignation. Learned counsel has thus contended that the period of limitation has to be reckoned from 5.3.2014, the date when the appellant had acquired knowledge of the impugned order and as such the departmental representation which was filed on 5.5.2014 was time barred. Learned counsel has referred to State Bank of Pakistan v. Khyber Zaman and others (2004 SCMR 1426), N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah (2006 SCMR 453), Mrs. Roqiaza Akbar and others v.
Secretary, Education (S&L), N.-W.F.P. And others (2010 SCMR 1564) to contend that where departmental representation is barred by time the appeal filed before this Tribunal will also be barred by time.
10. As against this Ch. Tariq Javaid, Advocate learned counsel for the appellant has contended that the impugned order was communicated to the appellant on 29.4.2014, a fact which was mentioned by the appellant in her departmental representation made to the President of Pakistan. The learned counsel has thus maintained that the departmental representation having been filed on 5.5.2014 was perfectly within time.
11. We have considered the submissions. Section 4 of the Service Tribunals Act, 1973 reads as under:- "4. Appeals to Tribunals. --- (1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, [or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal]: Provided that---
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade;
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before, the 1st July, 1969].
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred--
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3 and
(b) in the case, to a Tribunal referred to in subsection (7) of that section.
' It is pertinent to note that the aforesaid provision of law is a penal provision and as such has to be construed and interpreted strictly and rigidly. The ratio and object of this is not hard to fathom.
Upon communication of the order imposing penalty upon a civil servant the latter has to formulate points for making departmental representation. This being the position the limitation will have to reckon from the date of communication. Not only this in Gulbat Khan v. Water and Power Development Authority through its Chairman, Lahore and another (1992 SCMR 1789) it was held that period of limitation for filing appeal is 30-days from the date of communication of the order to civil servant concerned. This being so the period of limitation will reckon from 29.4.2014, the date on which the 'impugned order was communicated to the appellant. As such departmental representation filed by the appellant was within time.
12. This brings us to the merit of the case. At the outset learned counsel for the appellant has contended that in the impugned order the period of absence of the appellant has been regularized by treating it as EOL without pay and as such on the basis of such absence no penalty could be imposed upon the appellant. On this score the appellant has sought support from the dictum laid down in Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another [2006 PLC (C.S.) 294] which is in sync with the aforesaid contention. As against this, learned counsel for the respondents has opposed this contention.
13. It is significant to note that absence from duty was not the only charge against the appellant. As noted supra Charge No,III leveled against the appellant was in regard to illegal drawl of allowances and Special Allowance during absence. This charge was proved during the inquiry. As such the impugned order is based on the aforesaid charge as well. This being so the dictum laid down in the aforesaid case-law cannot be siphoned into this case.
14. But this is not the end of the matter. It has to be seen whether the impugned penalty of removal from service imposed upon the appellant was commensurate with the enormity of the allegations leveled and proved against her during the inquiry. As noted supra, all the three charges were not fully proved against the appellant. These were partially proved. The nature and intensity of these allegations did not warrant the imposition of harsh penalty of removal from service. As such there was B no earthly reason for the Authorized Officer. To recommend the imposition of major penalty of removal from service upon the appellant. Similarly, the competent Authority was not justified in rubber stamping the recommendations of the Authorized Officer.
15. Holistic approach is required for imposing penalty upon the appellant. As is discernible from the impugned order the appellant remained on leave for 452-days and 756-days. The reasons for such long absence, as mentioned above and explained by the appellant are her family and health issues and the ailment of her son. It was obviously for this reason that upon gaining knowledge of the impugned order the appellant had tendered resignation from service. All these factors cumulatively show that the appellant has neither capacity nor will to continue her service.
16. For the foregoing reasons and taking into consideration all the relevant circumstances we dispose of this appeal by modifying the penalty of "removal from service" to "compulsory retirement from service" from the date of passage of the impugned order.
17. No order as to costs. Parties be informed accordingly.