Muhammad Mushtaq Jadoon, Member. Appellant has filed this appeal, under Section 4 of the Service Tribunal Act, 1973, against impugned order dated 11.02.2015, whereby the appellant was removed from service. He submitted departmental appeal on 18.02.2015, followed by reminders and last one on 24.11.2020. His appeal was finally rejected vide order dated 21.12.2020.
2. Learned counsel for the appellant opened his argument that the appellant has been filing departmental appeals, the last one received by the respondents on 24.11.2020 which was rejected vide impugned appellate order dated 21.12.2020. No regular inquiry was conducted against the appellant and imposing major penalty without regular inquiry, opportunity of personal hearing and cross-examination of witnesses is violation of Government Servants (E&D) Rules, 1973. In support his argument he relied on 2008 PLC (CS) 814, 2007 PLC (CS) 1237, 2004 SCMR 1662, 2005 SCMR 752 and 2007 PLC (CS) 1015. Vide impugned order of removal dated 11.2.2015 the absence period of appellant has been regularized as leave without pay (EOL). As per Revised Leave Rules, 1980, the removal on these grounds has been declared unlawful and illegal by the Hon'ble Supreme Court in reported cases 2006 PLC (CS) 294, 2005 PLC (CS) 912, 2006 SCMR 343, 2008 PLC (CS) 542. He prayed that the impugned order and final appellate order may be set aside and the same may be converted into retirement on medical grounds, keeping in view the health condition of the appellant.
3. Learned AAG along with DR present and relied on the objections filed by the respondents and contended that regular inquiry was conducted as per Section 5 of Government Servants (E&D)
Rules, 1973. It was a simple case of absenteeism and the authority may dispense with regular inquiry and issue Show-Cause Notice. Show-Cause Notice dated 20.2.2013 was issued. Vide notice dated 26.9.2013 the appellant was informed to appear before the Authorized Officer. Final Show- Cause Notice was issued through newspaper on 26.12.2014 and 25.12.2014, both, in English and Urdu Dailies. Appellant in a short span often years service was dismissed or misconduct twice and reinstated as consequence of departmental appeals. Thus his past service record is highly tainted.
Appellant has admitted his addiction narcotics and no employee can be allowed pension on medical grounds due to addiction. As per Government Servants (APT) Rules, 1973, (Rule-19) Pension and Gratuity of sub-rule (3). "No pension shall be admissible to a civil servant who is dismissed or removed from service for reasons of discipline".
4. We have heard the parties and have perused the record.
5. In the appeal the fact regarding appeal to department, departmental authority has been concealed. It has become a routine now that repeated or second appeal is lodged to, prima facie, cover up the limitation, which is the first step to cross by the appellant and the courts to assume jurisdiction for adjudication. Record indicates that appellant impugned order is dated 11.2.2015 and the appellant filed first departmental appeal on 18.2.2015 praying for reinstatement. There was no response of respondents to his departmental appeal. As per Section 4 of Service Tribunal Act, 1973 appellant rightly filed service appeal within 30 days after the decision of Appellate Authority and the departmental authority was supposed to decide the appeal within 90 days, which means the limitation for appellant start w.e.f. 18.5.2015. While the instant appeal filed on 7.1.2021. Instead of filing of service appeal the appellant filed second appeal, prima facie, to cover up the issue of limitation on 24.11.2020 which was rejected by the Competent Authority vide order dated 21.12.2020. As per law there I is no provision of second departmental appeal. Learned counsel for the appellant has filed an application for condonation of delay citing reasons that departmental authority rejected the second appeal on 21.12.2020 and thus appeal is within 30 days as per decision of Hon'ble Supreme Court reported as 2009 PLC (CS) 114, there are sufficient grounds for condonation of limitation.
Section-5 of Limitation Act, 1908 states that appellant must show sufficient cause for not preferring appeal on time. In this case appeal is time barred by five and a half years and as held PLD 1990 SC 951, 2004 SCMR 1426, 2006 SCMR 453, 2006 SCMR 1862, 2007 SCMR 513, every day of delay must be explained with cogent reasons. The departmental authority is supposed to decide the appeal within 90 days and even no or non response is also a decision. In any case the appellant was competent to file service appeal after expiry of 90 days. Same view was held in PLD 2006 Kar 126.
That merely because to remain under examination before the higher authority was not a valid ground for extension period of limitation. While the appellant basic right is to seek justice but the respondents cannot be deprived of valuable right which have been acquired due to laches and negligence of appellant (2007 SCM R 866). In this case the appellant temporary address is of Islamabad official residential quarters and thus he has not been able to produce substantive evidence in regard to condonation of delay.
6. In a recent judgment of the Hon'ble Supreme Court (CP No. 1093/2019 dated 8.4.2022 (Imran Inayat vs. Secretary of Law, Justice & H.R.) that "Major penalty of removal was imposed on the petitioner vide order 11.2015 but he filed departmental appeal on 15.7.2016. No plausible justification was given to explain such inordinate delay. Leave is refused and he petition is dismissed. In case the contention of learned counsel in regard to departmental appeal is accepted that it was filed on 24.11.2020 and rejected on 21.12.2020 and thus service appeal before the Tribunal is on time. This contention is more injurious- to the cause of appellant in regard to limitation. No substantive grounds offered for filing of second departmental appeal after five and half years. The Hon'ble Supreme Court, has upheld the FST judgment in Appeal No. 3714(R)CS.2017 dated 28.1.2019.
"Limitation in matters of pay and allowances 2008 SCMR 663: CP No. 2035-2042 of 2020 (SC) dated 7.4.2020 (Raja Ashraf Hussain and others vs. Secretary of Defence). The limitation consideration for applying for condonation of delay to explicate and spell out the sufficient cause of delay of each and every day. It is an interstice sense of duty of the court not to proceed if the matters come to them beyond the prescribed period of limitation. The rules of-limitation are meant not to extinguish right of parties but only to disqualify and impede the resort to dilatory and reckless tactics in pursuing remedy. The objective and astuteness of the law of limitation is not to confer a right but it ordains and perpetrate as impediment after lapse of prescribed of limitation in order to enforce such right.
7. The Competent Authority may dispense with the inquiry through Inquiry Officer or Inquiry Committee as per Rule-5 of Government Servants (E&D) Rules, 1973 and may issue an order in writing to inform the accused of the action proposed to be taken in regard to him and grounds of action. The Authorized Authority must give reason of showing cause against the action. The appellant was informed in writing that unauthorized absence vide letter dated 20.2.2013, which was dispatched at the address of his residence in Islamabad, to which he did not response. Subsequent reminders were issued on 26.9.2013 directing the appellant to appear before the Deputy Director on 30.9.2013 and finally due to non response and non reporting of appellant an advertisement was published in Urdu and English daily newspapers dated 25.12.2014. A final show-cause notice was issued, directing the appellant to join duty within 15 days failing which major penalty of removal from service shall be imposed. The contention of learned counsel for the appellant that regularization of absence period of 13 days as EOL (without pay) tantamount condonation of his guilt. In support of his contention he relied upon 2008 PLC (CS) 542 but in this case the appellant was initially allowed medical leave on expiry of which the petitioner applied for extension. In this case the appellant just absconded without prior permission and did not respond to Shaw-Cause Notice. The record reveals, and by his own admission of appellant in the departmental appeal he was under treatment for addiction in a Rehabilitation Centre. After publication in the newspapers the appellant failed to report and this it is not an issue of regularization of 13 days of absence but till filing of first and second departmental appeal he appellant, was not able to report back to the department. It is grave misconduct on part of appellant who failed to report in response to final Show-Cause Notices.
8. Record further indicates that appellant joined service in 2004 and vide order dated 10.11.2005 he was removed from service. On acceptance of departmental appeal he was reinstated in service an 10.11.2005 with a minor penalty of withholding of one year increment. Yet again vide order dated 2.11.2006 he was found guilty of misconduct and again removed from service. Reinstated with minor punishment of censure.
9. As regard to CSR-361 and FR-26 the provision are not attracted in this case as pension of medical ground cannot be allowed to an employee removed from service. Addiction is a disease as well as crime and no addict can be rewarded with pension on medical grounds. While the society must take care and focus on rehabilitation rather than punitive action, and the appellant is being treated in a Welfare Centre. In any case it is self inflicted ailment.
10. Thus based on merit, and serious issue of limitation of more than five and a half years, which does not been fully justified, the appeal is dismissed.
11. No order as to cost. Parties be informed.