MALIK ZAWWAR HUSSAIN (MEMBER).-Fazal Karim, ex-Agricultural Officer has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order dated 16th September, 1981 and the order dated 6th November, 1980 issued on 5th January, 1981 whereby he was not permitted to withdraw the resignation tendered by him and which was accepted by the respondents were. f. 25th May, 1975. The appellant has prayed that both the impugned order be set aside and he be re-instated in service with all back benefits.
2. Brief facts of the case are that the appellant joined the service under Agriculture Department as Plant Protection Assistant in 1956 and then he was posted as Agricultural Assistant in the Extension Wing of Agriculture Department. In the year 1973 a case under section 5 of Prevention of Corruption Act, 1947 was registered against one Nasir Ahmad, Field Assistant Chiniot. After its investigation the said Nasir Ahmad and the appellant was challaned to face the trial before Mr. Ghulam Murtaza, Special Judge, Anti-Corruption, Sargodha Divi--sion, Sargodha, Camp at Jhang, on the allegations that they in collaboration with each other and another absconder accused Abdul Rashid abused their position as public servant and misappropriated medicines of the value of Rs. 19,132.15 belonging to the Agriculture, Department. The appellant was suspended on 20th December, 1973 due to his involvement in the criminal case and then he was re-instated and was posted as Agricultural Assistant at Qamar Masani, Tehsil Eisa Khel, District Mianwali where he was to take over the charge on 2nd March, 1974. There as the ill luck would have it, the appellant submitted his resigna--tion on 25th July. 1975, with a one months, notice. The appellant was directed by E. A. D. A.
To hand over the charge vide letter dated 8th August, 1975, pending acceptance of his resignation by the competent authority. The record shows that thereafter the appellant did not attend the office. On 19th October, 1979, the appellant submitted an application that he may be permitted to withdraw the resignation tendered by him on 25th July, 1975 and re-instated in service. His request was turned down vide letter No. SO(A-II)/3-14/8, dated 6th November, 1980, from the Government of the Punjab, Agriculture Department which was endorsed to him on 5th January, 1981 The appellant again agitated his grievance by way of second representation to the Government which seems to be still pending but the appellant claims that as a result of his second representation the order dated 16th September, 1981, was issued whereby he was informed that his resignation was accepted were. f. 25th July, 1975. Hence this appeal.
3. We have heard the appellant in personas well as have gone through his written arguments. We have also heard the learned District Attorney on behalf of the respondents Nos. 1 to 4. It has been argued by the appellant that the resignation tendered by him was not voluntary and he was compelled by the circumstances including involvement in the criminal case, to quit the job under protest. It has also been argued by the appellant that the resignation tendered by him with a notice for one month was formally accepted by the Government vide order dated 16th September, 1981, whichwas issued after the application for with-- drawal of the resignation was filed by the appellant; hence the impugned orders are illegal. He has submitted that his case is identical to the case of Mian Noor Zaman (Case No. 150/1302 of 1974) decided by us on 15th February, 1982, and has prayed for the acceptance of the appeal.
4. On the other hand the learned District Attorney has controverted the arguments of the 'appellant and has raised a preliminary objection with regard to the limitation. He has submitted that the request of the appellant for withdrawal of his resignation was turned down by the Govern--ment vide its order dated 6th November, 1980 while the present appeal has been filed on 20th October, 1981. He has submitted that the mere fact of filing the second representation is just a clandestine measure adopted by the appellant to enlarge the period prescribed for filing an appeal before this Tribunal which is not permissible in law. On merits it has been submitted on behalf of the respondents that the appellant had voluntarily resigned from the job were. f. 25th July, 1975. Thus, conse--quent upon the resignation with a notice of one month, the appellant was relieved from the said date and thereafter he neither attended the office nor submitted any application for the grant of leave and the appel--lant was never heard of during all this period till 19th September, 1979. When he sent an application to E. A. D.A. Mianwali. The learned District Attorney has submitted that the conduct of the appellant during his tenure at Qamar Masani as given out in the comments of the respon--dents would show that the appellant never wanted to serve the Govern--ment and had resigned of his own with effect from 25th July, 1975. With regard to the order dated 16th September, 1981, the learned District Attorney has submitted that this was just a formality otherwise the resignation had taken effect in the year 1975 and the appellant could not be allowed to recall his resignation after about five year. To support of his arguments learned District Attorney has placed on record a copy of judgment of this Tribunal dated 7th September, 1980, passed in appeal No. 45/428 of 1979 entitled Muhammad Ibrahim, ex-Cotton Inspector v. Secretary Agriculture and others. He has further submitted that the precedent case of Mian Noor Zaman is distinguishable from the present case, and is not applicable to it.
5. We have given our anxious thoughts to the arguments advanced by the appellant as well as on behalf of the respondents. We have taken pains to go through the record of the case very carefully and have found that on his posting at Qamar Masani vide order dated 29th January. 1974, the appellant absented himself from duty were. f. 31st January, 1974 on the pretext of his illness which leave was rejected by the Director of Agriculture. Ever since he took over the charge at Qamar Masani, he used to remain absent from the office and submit applications for leave. He also submitted leave application for two months were. f. 26th December, 1974, telegraphically or in the alternative prayed for the acceptance of his resignation. His conduct shows that he was a malingerer and was not a willing worker. In this background it appears that the appellant was not satisfied, with his posting at Qamar Masani and submitted his resignation in 1975 and thereafter he did not attend the office. We find that the resignation tendered by the appellant with a notice of one month was voluntary and the appellant had no intention to come back to duty. If he had any such intention, he would have awaited the orders on his resignation or left the office with sanctioned leave. In the absence of both these circumstances, we have to hold that the appellant never wanted to continue in service and had voluntary severed his relations with the respondents.
As such, the competent autho--rity has passed the order on 6th November, 1980, strictly in accordance with the law and rules. We are fortified in this view by our earlier judgment so relied upon on behalf of the respondents. In the said case the facts are almost identical. In that case, Muhammad Ibrahim appel--lant had tendered his resignation on 3rd April, 1962, with 24 hours' notice and thereafter 'he left the office and did not care to await the orders on the same. He also like in the present case, made an applica--tion for the withdrawal of his resignation almost after 9/10 years but the Director of Agriculture informed him vide his order dated 7th June, 1.972 that since he had tendered his resignation in the year 1962 and the notice period expired after 24 hours as such there was no question of withdrawal of his resignation. In this background as well as in view of rule 3.27 contained in C. S. R., Part I Chapter 3, the appeal was rejected. In view of our earlier judgment which is in conformity with the present case we' hold that the competent authority has legally refused to allow the appellant to withdraw the resignation after about 4-- years of his submission. We have also examined the judgment in the case of Mian Noor Zaman. The facts and circumstances in that case are different and are not identical to the facts in the present case. In that case Mian Noor Zaman was granted L. P. R. And during the period of L. P.. R., he had requested to allow him to resume duty; while in the present case, the appellant did not await the orders on his resignation, and has left the office, as discussed by us in the earlier part of our judgment. Thus, we hold that the judgment in the case of Mian Noor Zaman is not appplicable the case of the appellant.
6. With regard to the preliminary objection on behalf of the res--pondents, we agree with the learned District Attorney that the appeal has not been filed within the time prescribed under section 4 of the Punjab Service Tribunals Act, 1974. The appellant was informed vide order dated 6th November, 1980, that his request for withdrawal of his resignation cannot be accepted, which order was a final order within the meaning of section 4 of the Punjab Service Tribunals Act. This order was passed on a representation of the appellant which apparently was filed under section 21 of the Punjab Civil Servants Act, 1974. Since an order on a representation was passed and communicated to the appellant, second representation on the same issue was not permissible to the same authority and this would not by any means enlarge the time by filing the present appeal. Since the appeal has been filed on 20th October, 1981 against the impugned order dated 6th November, 1980, so we hold that the appeal is out of time and is liable to be dismissed as such.
7. In view of the above analysis we hold that there are no merits in the present appeal which is dismissed on merits as well as being barred by time. However, there will be no order as to costs.