IJAZ UL AHSAN, J.---Leave to appeal is sought against a judgment dated 07.04.2017, passed by the Federal Service Tribunal, Karachi. Through the impugned judgment, an appeal (Appeal No,01(K)CE of 2014), filed by Respondent No,1 was allowed and the penalty of dismissal from service awarded to him vide order dated 17.12.2013 was set aside, he was reinstated into service and the intervening period was directed to be treated as leave of the kind due.
2. Brief facts necessary for decision of this lis are that Respondent No,1 was employed as a Junior Clerk LDC (BS-7) in the National Highways and Motorway Police since 06.01.2011. However, on account of his habitual absence from duty, he was dismissed from service, vide order dated 07.12.2013. He filed a departmental appeal which was rejected on the ground that he was a habitual and unwilling worker. He approached the Service Tribunal which came to the conclusion that in the dismissal order, the competent authority while imposing upon him the major penalty of dismissal from service on account of his misconduct, unauthorized absence from duty and not responding to the official communications, had condoned his absence by treating the same as extraordinary leave without pay. In reaching the said conclusion, the Service Tribunal relied upon a judgment of this Court reported- as Lahore Development Authority v. Muhammad Nadeem Kachloo (2006 SCM R 434).
3. The learned Deputy Attorney General submits that Respondent No,1 was a habitual absentee and had been absent from duty on a regular basis for which various show cause notices were issued to him to which he did not file any response. He was also granted personal hearing in the orderly room on 25.03.2014. However, finding the plea of Respondent No,1 implausible and not supported by any documentary evidence, he was awarded major penalty of dismissal from service. The learned Law Officer has vehemently argued that Respondent No,1 was an insubordinate official and his habitual absence constituted misconduct. Further, the Service Tribunal has misinterpreted and misconstrued the concession given by the competent authority on compassionate ground in coming to the conclusion that unauthorized absence of Respondent No,1 had been condoned by the department.
4. We have heard the learned DAG and gone through the material available on record. Vide order dated 04.10.2018, notice was directed to be issued to Respondent No,
1. However, we have been informed that despite service of notice, Respondent No,1 has not entered appearance. He is accordingly proceeded against ex parte.
5. We find that Respondent No,1 had a long history of unauthorized absence from duty for which various show cause notices had been issued to him from time to time and the departmental authorities had shown grace and indulgence in not visiting him with imposition of a major penalty.
It appears that Respondent No,1 was absent from duty for a considerable period of time for which a show cause notice was issued to him, but he did not bother to file a response to the same.
Thereafter, he was summoned to the orderly room and granted personal hearing. His plea that he was unwell was found to be implausible and not supported by documentary evidence. He was accordingly dismissed from service in terms of Rule 4(b)(iv) of E&D Rules, 1973 on account of misconduct, unauthorized absence from duty and failing to respond to the official communications which had admittedly been received him.
6. The learned Law Officer has also placed on record a number of documents showing that even after his reinstatement into service pursuant to the orders passed by the Service Tribunal, Respondent No,1 did not improve his conduct and continued to remain absent from duty without permission or authorization for which a number of show cause notices have been issued to him.
7. It is clear and obvious to us that the conduct of Respondent No,1 who is part of a Disciplined Force is detrimental to the discipline of the force. His past and present conduct indicates a casual, careless and non serious attitude. This cannot be tolerated or ignored in any service, let alone the police service. Careful perusal of the order dated 17.12.2013 passed by the competent authority reveals that major penalty of dismissal from service was lawfully imposed upon Respondent No,1 on account of his misconduct, unauthorized absence from duty and failure to respond to the official communication. Therefore, the mere fact that in the next paragraph, by way of a compassionate gesture and in order to ensure that Respondent No,1 was dealt with fairly and magnanimously it observed by way of a concession that his absence from duty may be treated as extraordinary leave without pay. It does not by any stretch of imagination mean that effect of the earlier paragraph of the order where the major penalty of dismissal from service had been imposed upon him was washed away or nullified.
8. We have carefully gone through the judgment of this Court relied upon by the Service Tribunal and find that the same is confined to the specific facts and circumstances of that case, is clearly distinguishable and does not lay down entire law on the subject. Further, other than reliance on the aforenoted judgment, the Service Tribunal has not assigned any other reason legal or factual for setting aside the order of the competent authority and directing reinstatement of the Respondent into service. We find that the Service Tribunal has erred in law in reaching its conclusion, misinterpreted the aforenoted judgment and wrongly applied the principles enunciated in the judgment to the facts and circumstances of this case.
9. For reasons recorded above, we convert this petition into an appeal and allow the same.
Consequently, the impugned judgment of the Service Tribunal dated 07.04.2017 is set aside and order of the competent authority dated 17.12.2013 dismissing Respondent No,1 from service is restored.