IJAZ UL AHSAN, J.---This appeal by leave of the Court arises out of a judgment of Federal Service Tribunal at Lahore ('the Tribunal' ) dated 11.04.2016. Through the impugne d judgment, while partly allowing the Service Appeal filed by the Respondent, the Tribunal modified the major penalty of dismissal from service imposed upon him to compulsory retirement from service from the date of passage of the dismissal order dated 23.10.2014.
2. Briefly stated the facts necessary for disposal of this Appeal are that the Respon dent was serving as UDC in the Directorate General of Training and Research, Lahore. On his request, he was granted leave with effect from 30.01.2013 to 29.01.2014 and on expiry of such leave he did not join duty. On 04.02.2014, he filed an application for grant of leave for a further period of six months. Such application was rejected and he was directed to join duty immediately , but he failed to do so. Accordingly , departmental proceedings were initiated against him. The Inquiry Officer sent letters to the Respondent to join the proceedings but he did not do so. On 03.10.2014, a show cause notice was issued to him, to which he replied on 14.10.2014; claiming that his mother was sick, his brother had died in a terrorist attack and his father had also passed away . He, therefore, stated that he was unable to continue his service and sought two years extraordinary leave. On account of his continuous absence from duty, major penalty of dismissal from service was imposed upon him, vide order dated 23.10.2014. He filed a departmental appeal which was rejected by the Appellate Authority vide order dated 27.11.2014. He therefore filed a Service Appeal before the Tribunal which was partly allowed through, the impugned judgment dated 11.04.2016 in the terms noted above.
3. Leave to appeal was granted by this Court on 26.1 1.2020 in the following terms: "Learned counsel for the petitioners contends that the absence of the respondent was established through departmental proceedings in which despite several notices, the respondent did not participate and ultimately the respondent was dismissed from service vide order dated 23.10.2014. Learned counsel contends that the Federal Service Tribunal, Lahore Bench, Lahore (the Tribunal) has shown compassion in reducing the penalty of the respondent from dismissal to that of compulsory retirement. He further contends that the ground mentioned by the respondent does not provide for such compassion and in any case, the respondent did not himself put up such defence before the enquiry committee, which was constituted to hear the charge against him.
2. The contentions raised by the learned counsel for the petitioners require consideration. Leave to appeal is granted to consider , inter alia, the same."
4. Learned ASC for the Appellants submits that once unauthorized absence for more than eight (08) months was established on record, there was no occasion for the Tribunal to convert the penalty of dismissal from service imposed upon the Respondent into comp ulsory retirement. Departmental proceedings against the Respondent had been initiated in accordance with law, due process rights were granted to him and he was given every possible opportunity to defend himself. On his failure to justify his continuous absence from duty, the only possible penalty that could have been imposed upon him was dismissal from service. He therefore maintains that the Tribunal has no lawful reason or justification nor was any cogent reason recorded by it for conve rting Respondent's penalty from dismissal to compulsory retirement. The learned ASC maintains that this Court has consistently held that jurisdiction of the Tribunal in terms of section 5 of Service Tribunals Act, 1973 to convert or reduce penalties has to be exercised carefully , judiciously and with circumspection more so after recording plausible and cogent reasons for the same. The jurisdiction of the Tribunal in this regard can neither be exercised arbitrarily nor used in an capricious or whimsical manner .
5. Learned counsel for the Respondent, on the other hand, has defended the impugned judgment. She has vehemently argued that the Respondent had 22 years of service with the Department. The fact that he absented himself for more than eight (08) months was for reasons beyond his control and the Tribunal has validly converted one major penalty into another considering the peculiar facts and circumstances of the case.
6. We have heard the learned counsel for the parties and gone through the record. It is clear and obvious to us that the Respondent had availed leave of one year which was granted to him with effect from 30.01.2013 to 29.01.2014.
He did not join service on expiry of his leave period and sought another six months leave which was rejected by the Department. He was informed that his leave application had been rejected and that he should join duty, but he failed to do so. The Inquiry Officer repeatedly sent letters inviting him to participate in the departmental proceedings, but he failed to do so.
7. It is also evident from the record that the Department sent repeated notices calling upon him to join duty but he consistently failed to do so. He also failed to participate in the departmental proceedings initiated against him. The record also shows that the charge sheet and statement of allegations were sent to the Respondent on 03.07.2014 which were received by his spouse, but even then he did not participate in the proceedings. We are therefore in no manner of doubt that the Respondent was all along aware of the proceedings being taken against him by the Department, but he consciously and deliberately stayed away from the same. On proof of charges against him, the Respondent was called upon to explain why major penalty should not be imposed upon him to which he failed to give any satisfactory response.
8. On the basis of the record, the Tribunal came to the following conclusion: "12. From the above it is abundantly clear that absence of the appellant from duty was deliberate, contumacious and annoying even. Given the fact that the residence of the appellant was at a distance of one or two kilometres from his office the defiance on the part of the appellant becomes more poignant. This being so the respondents were justified in imposing major penalty upon the appellant."
In reducing the penalty from dismissal to compulsory retirement, the Tribunal concluded that according to his letter addressed to Mr. Sheraz Mirza, Director/Authority of the Appellants, the Respondent himself had stated that he was unable to continue his service on account of his domestic circumstances. However , at the same time, the Tribunal also concluded that this was not a valid reason for the Respondent to remain away from duty without getting his leave sanctioned.
9. We also notice that there was no material available on record to support the conclusion of the Tribunal that despite proof of all charges against the Respondent, there were mitigating circumstances and the harsh penalty of dismissal from service was not commensurate with the enormity of allegations levelled and proved against the Respondent. Such finding of the Tribunal is wholly unsupported by the record and the learned counsel for the Respondent has not been able to point to any document on record other than making oral assertions that there were mitigating circumstances so persuasive that a lenient view could have been taken.
10. Further , we have found that the approach and attitude of the Respondent was deliberately obstructive and contumacious which is not expected of any employee let alone person employed in a Government Department. We note that reduction of penalty imposed by the Competent Authority and upheld by the Appellate Authority without recording valid, cogent and convincing reasons duly supported by the record would set a bad precedent and would not auger well with the principle of uniform and consistent standards for administration of justice.
11. In the circumstances, we have not found the impugned judgment of the Tribunal dated 11.04.2016 to be sustainable. The same is therefore set aside. Consequently , the present appeal is allowed and the penalty of dismissal from service imposed upon the Respondent by the department vide order dated 23.10.2014 is affirmed and restored.