Brief facts of the case are that the appellant was proceeded against departmentally under PEEDA Act, 2006 on the below mentioned statement of allegation: "SP/PHP Sargodha Region, informed vide his letter No, 535/PA, dated 04.10.2011 that he (Zahid Abbas, Langri) was found absent from duty w.e.f 04.09.2011 to 05.09.2011 & 09.09.2011 to date without obtaining any leave or prior permission by the competent authority. Moreover, he is irresponsible and habitual absentee."
An enquiry into the matter was conducted by DSP/PHP District ushab and subsequently the appellant was served upon Show-Cause Notice No, 1220;PA-Admin, dated 11.02.2012 and resultantly vide Order No, 4555/PA-Admin, dated 28.04.2012, Respondent No, 1 awarded him major penalty of "Dismissal from Service". Feeling aggrieved the appellant preferred departmental appeal before Respondent No 2, who vide Order No, 50-54' Ad-VI, dated 01.01.2012, rejected the same and the order was communicated to the appellant on 09.01.20.13. These orders of Respondents No, 1 & 2 have been assailed by the appellant before this Tribunal by way of filing the instant appeal on 31.08.2017.
2. Arguments of learned counsel for the appellant, and the learned District Attorney have been heard. Contents of memorandum of appeal and parawise comments offered by the respondents have also been perused.
3. Learned counsel for the appellant argued that the absence of the appellant was neither intentional nor deliberate, rather it. was due to the compelling circumstances i,e, illness of his father, his wife and death of his child. The appellant submitted medical certificates to the enquiry officer and the punishing authority at the time of hearing, but no one considered his genuine grievance. Learned counsel for the appellant added that as per Revised Leave Rules, 1981, the leave on medical ground is not to be refused, however, the competent authority may refer the case to a medical board if he is not satisfied with the veracity of the medical certificates. In this regard, learned counsel for the appellant relied upon 2000 SCMR 1640 & 2004 PLC (CS) 1583.
4. Learned counsel for the appellant further argued that 'the appellant has been awarded major penalty of dismissal from service on the basis of an enquiry, which was not conducted in an appropriate manner as without ascertaining the truth/ genuineness of the medical certificates submitted by the appellant, the findings were given against him, hence without ascertaining the fate of the said certificates no adverse inference could be drawn against the contentions raised by the appellant. While concluding his arguments, learned counsel for the appellant submitted that the penalty awarded to the appellant is very harsh and does not commensurate with the alleged guilt of absence and hence the appellant warrants leniency. Rehance placed on 2006 SCMR 60.
With these submissions, counsel for the appellant prayed for acceptance of the instant appeal by setting aside the impugned orders.
5. The learned District Attorney argued that all the legal formalities were fulfilled while proceeding against the appellant. He held that conduct of the the appellant remained highly objectionable and against the forms of discipline as he is a habitual absentee and latecomer. He further argued that the penalty imposed upon the appellant was in accordance with the charge leveled against him and hence the instant appeal is baseless and not tenable, which may very graciously be dismissed.
6. Patient hearing having been given to both the sides, I am inclined to agree with the submissions made by the learned counsel for the appellant. It has been observed that the enquiry into the matter was conducted in a perfunctory manner as it was incumbent upon the Aenquiry officer as well as the competent authority, either to consider the medical certificates submitted by the appellant as genuine or to get them verified. But the same has not been done. It has been further observed that even otherwise, the appellant has been given quite harsh treatment. The penalty awarded to the appellant does not commensurate with the gravity of the charge attributed to him.
The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or through reformation. The honourable Supreme Court of Pakistan observes in its various judgments that in service matters, extreme penalty for minor acts would defeat the reformatory concept of punishment Reliance is placed on 2006 SCMR 60. In this view of the matter, I am very much convinced that, as the appellant has already undergone enough punishment for his minor act, by being remained out of service in starvation for long and he also being a low paid employee i,e, Langri, the instant appeal merits acceptance.
7. An application under Section 5 of Limitation Act, 1908 read with. Section 151, CPC, for condonation of delay has also been annexed with the instant appeal as the same has been filed with a delay of more than 04 years. Although, the objection of limitation has not been raised by the respondents, neither in the parawise comments submitted by them, nor during the course of arguments put forth by learned District Attorney, however, learned counsel for the appellant, in the application for condonation of delay, relied upon 2007 PSC 1246, wherein it has been held that decisions of the cases should always be encouraged on merits instead of non suiting the litigants on technicalities including limitation. Learned counsel for the appellant has also relied upon PLD 2002 SC 84, wherein it has been held by the honourable Apex Court of Pakistan that where respondent has no case on merit, the Court should not feel reluctant in condoning the delay. In the light of the above referred judgments and taking strength from another judgment of the August Apex Court of Pakistan reported as 2010 SCMR 442, wherein it has been held that "Question of condonation of delay squarely falls within jurisdictional domain of Service Tribunal and no restriction has been imposed by any law---Condonation of delay can be granted in suitable cases and question of suitability is to be assessed by Service Tribunal itself", the delay involved in filing of the instant appeal is, hereby, condoned.
8. In view of what has been discussed above, the instant appeal is accepted and the impugned orders are set aside. Resultantly, the appellant is reinstated into service from the date of his dismissal and the intervening period is treated as leave of the kind due.