Syed Arshad Ali, Member.--The appellant above-named being aggrieved and dissatisfied through the lis at hand, assailed the impugned order issued vide # 402-E/152/2911/P-8 dated 24.12.2012 whereby major penalty of dismissal from service was imposed upon the appellant from the date of absence from duty w,e,f, 07.06.2011. The appellant preferred departmental appeal to the Respondent # 1 for reinstatement in service on 22.1.2013 which remained un-responded. The appellant after waiting for 90 days filed this appeal within next statutory period of 30 days hence this appeal praying that the impugned order of dismissal from service vide order dated 24.12.2012 be set aside and the appellant be reinstated in service with back benefits.
2. The factual position in brief is that the appellant had joined Pakistan Railways as Sub-Engineer and was posted as Loco Foreman at Loco Shed Kotri in Karachi Division. Appellant while posted as Loco Foreman, Kotri, deliberate and awarded him major punishment of dismissal from service from the date of his unauthorized absence i,e, 07.06.2011. The order of dismissal from service was correctly notified to the appellant on account of the charge of unauthorized absence from duty willfully w,e,f, 07.06.2011.
5. Learned counsel for the appellant submitted synopsis of arguments and argued as well pleading that the order of dismissal from service dated 24.12.2012 is void as there was no departmental inquiry held and no personal hearing afforded to the appellant and major penalty was imposed upon the appellant which is not sustainable. He relied on SBLR 2005 TR 111. The departmental inquiry is must for imposing major penalty which is lacking in this case. He relied on PLJ 2006 SC 189. The regular departmental inquiry cannot be dispensed with while imposing major penalty. He relied on 2016 SCJ 1195. On the basis of absence from duty major penalty is not warranted in case of civil servant. He relied on 2010 SCM R 1546, unreported judgment of this Tribunal dated 19.12.2012 passed in Appeal # 22(K)CS/2010. He argued that this Tribunal in an identical case had allowed the appeal of one employee of Railway and relied on a judgment of this Tribunal dated 16.11.2015 in Appeal # 130(K)CS/2011 (PLJ 2016 TRC 190. Another judgment of this Tribunal dated 23.02.2015 passed in Appeal # 28(K)CS/2011. Learned counsel argued that order of dismissal from service dated 24.12.2012 was passed by the authority retrospectively w,e,f, 07.06.2011. Executive order cannot operate retrospectively; hence, the order on the face of it is illegal. He relied on 2011 SCM R 1220 and that the authority imposed the penalty of dismissal from service upon the appellant on 24.12.2012 without affording the chance of personal hearing to the appellant and placed reliance on PLD 2004 SC 441.
6. It is an admitted position that the appellant remained absent from duty without prior sanction/ approval of leave from the competent authority. He remained in communicator. He did not react to the publication of show-cause notice when it appeared in the daily `Express' but he responded second time when it was published in the daily 'The News'. It is pertinently pointed out that correspondence made by the respondent - organization was Receipt Acknowledgement Due (RAD). The position taken that the appellant could not come to know about the show-cause notice issued, for it had not been received by him and consequently he remained unable to respond and the inquiry conducted was not regular is logically not sustainable. In the context of issuance of letter acknowledgement due; Section-114(f) of the Evidence Act, specially lays down that if the letter addressed had not been received back undelivered, it is presumed to have been delivered.
So in the event of non-receipt of any response repeatedly from the appellant, regular inquiry as a corollary was not possible and had to be dispensed with under Rule 5(iii) of the Government.
Servants (Efficiency & Discipline) Rules, 1973 which was the only option as the express provision of rule is available.
7. No evidence had been brought on record to establish his defence with regard to imminent danger and threats to him and his family members as well on account of tribal feuds/ rivalry in his native town and he was constantly on the run to protect. No FIR was registered with the police in his native town as was not placed on record, nor even report to his immediate higher ups was made by the appellant is available on record. Thus, in the absence of any substantiation of the position about something as sinister as referred to above was following the appellant, the unauthorized absence from duty is established. Moreover, leave cannot be claimed as a right. It is the competence and judgment of the competent authority to approve or in the exigencies of work and in the public interest. The reliance placed by the learned counsel in his arguments and written synopsis as well as on the superior Courts' rulings/judgments is not advertent to and the judgments as referred to are quite distinguishable in terms of the facts and circumstances of this case.
8. We are of the considered view that appeal merits no consideration and the appeal is hereby dismissed with no order as to costs.
9. Parties be informed accordingly.