JUSTICE SHAH ABDUR RASHID (CHAIRMAN). --The appellant, Dr. Illahi Bukhsh, was posted as Registrar in the Jinnah Post-Graduate Medical Centre (JPMC), Karachi, when on 24-5-1981 he applied for 120 days leave on full pay with effect from 16-6-1981 for attending to his domestic problems. This leave was granted, but the appellant did not b avail it of.
2. When the appellant was posted in the Department of Anaesthesio--logy in the JPMC, he submitted another application that he wanted to avail of the earned leave (Presumably the leave previously granted) with effect from 17-8-1981. This application was forwarded with recommendation for one month's leave by the appellant's Head of Department on 16-8-1981, The appellant absented himself from 17-8-1982 and went to his village Jampur in District Dera Ghazi Khan. The Director, JPMC addressed a letter on 25-8-1981, directing the appellant to report for duty.
The appellant did not comply with the order, where-after on 3rd October, 1981 another letter was addressed by the Director, JPMC to the appellant to see him in his office immediately. The appellant, however, again failed to comply with the order and on 15-10-1981 he sent an application for grant of leave on the ground that he had met an accident on main Jampur Road at 7-15 p. m.
On 17th September, 1981 and was incapable of reporting for duty. This application was accompanied by a certificate from a medical practitioner showing that the appellant had a fractured tibia and needed complete rest for two months. In response to this application, the appellant was advised to submit a medical certificate from the Civil Surgeon of a Central Government Hospital in support of his illness. The appellant on 27-1-1982 informed the Director, JPMC that there was no Civil Surgeon of the Federal Government where he lives. He also requested for extension of leave for domestic problems in respect of which he had originally come on leave.
3. On 24-5-1982, a show-cause notice under the signatures of the Secretary, Ministry of Health, was issued in the appellant's name, requiring him to explain why for his unauthorised absence from duty he may not be dismissed from service. The appellant sent his reply to the show-cause notice on 14-6-1982. The reply having not been found satisfactory, the appellant was dismissed from service on 4-6-1982 His review petition having failed, he has come in appeal before us under section 4 of the Service Tribunals Act (LXX of 1973).
4. The learned counsel for the appellant, inter alia, contended that the appellant having been sanctioned leave with effect from 15-6-1981 for 120 days was entitled to avail it of from a later date In this respect, he also pointed out and correctly so that though the appellant had made an application on 24-5-1981 for grant of leave with effect from 15-6-1981, intimation about the sanction of leave was received on the date from which the leave was to commence actually. This, according to the appellant, compelled him to postpone his leave for the reasons that he could not make the arrangements in such a short time and that the purpose for which leave was to be obtained could not be achieved. It was for this reason that the appellant again submitted an application on 16-8- 1981 for proceeding on leave from 17-8-1981. It was admitted that the appellant absented himself from 17-8-1981, but it was explained that since the leave had already been granted, the appellant had to proceed on leave with effect from 17-8-1981, specially when his prayer had been recommended by the Head of Department. It was contended that the appellant was sure that after the recommendation, the issuance of the order of leave was only a formality and it was for this reason that he left on 17-8-1981 considering that his leave commenced from that-date.
5. It was then explained that the appellant could not report back for duty, as he had met an accident. In this respect a medical certificate has been filed. The learned counsel for State has contended that since the certificate was from a private medical practitioner, it was not accepted and the appellant was asked to submit the certificate from a Civil Surgeon. We are in agreement with the learned counsel for the appellant that there being no Civil Surgeon of the Central Government in D.G. Khan, the appellant could not possibly comply with the direction. It is a settled proposition of law that if an act on the part of a person is not possible to be performed, then he is excused from performing that act. The nearest Civil Surgeon of the Federal Government was either at Lahore or Islamabad or Peshawar and we agree with the learned counsel for the appellant that in the condition in which the appellant was at that time, he could not travel to Lahore, Peshawar or Islamabad for obtaining the Civil Surgeon's certificate and more so because no letter was addressed to any Civil Surgeon by the respondents to examine the appellant. In our opinion, the absence of the appellant, in these circumstances, was for reasons beyond his control. The appellant has shown us on his body the signs of the wounds which resulted from the accident and we are not inclined to disbelieve the contention of the appellant in this respect.
6. As already stated, the appellant proceeded on the already granted leave with effect from 17-8- 1981 which was originally granted with effect from 15-6-1981. For the reasons stated above, the leaving of the appellant from duty, though not fully justified, was an act which was condonable keeping in view the circumstances of the case where his first application of 120 days was allowed, but he received the intimation on the last date.
7. The absence of the appellant after recovery from the effects of wounds was not at all justified. He should have immediately reported for duty and should not have sent application on 27-1-1982 for extension) of leave for domestic reasons. This is . The attitude which every civil servant is expected to observe.
8. It appears that the appellant joined duty on 16-6-1982 only about 18 days after the issuance of the show-cause notice. The Government case is that the appellant again absented himself. On the other hand, the appellant says that though he reported for duty, no formal order of his posting to any particular department was passed and he remained present throughout after 16-6-1982 in the hospital waiting for allocation of duty. In fact, he says that he actually worked in the Department of Anaesthesiology after 16-6-1982.
9. Whatever the case may be, we are of the opinion that the appellant should have been more vigilent and should not have left the station without formal sanction of leave in spite of the fact that his leave for one month had been recommended by the Head of his Department and he availed it of in view of the fact that he considered that the leave would be sanctioned in the normal circumstances as had been done previously. Again when he recovered from the effects of accident, he should have reported immediately and then applied for leave. It was not expected from him to send the leave application from his village. It, at the most, involved a little expenditure, but the civil servants are expected to be dutiful and obedient and should avoid all types of irregularities whether they are justified or not, and whether they are serious or minor in our opinion, the finding of guilty against the appellant had been rightly recorded, which we uphold.
10. The learned counsel for the appellant also took exception to the procedure adopted by the competent authority in dispensing with the inquiry and in issuing show-cause notice straightaway.
In our view the exercise of the discretion in dispensing with the inquiry suffers from no legal defect, inasmuch as, the facts of the absence were known to the competent authority as well as to the appellant and the resultant decision has rightly been taken on the basis of reply sent by the appellant.
11. The quantum of punishment only is left for consideration. It may be pointed out that the Government Servants (Efficiency and Discipline) Rules, 1973, provide for different kinds of penalties starting from the minor most, which is "censure" to the major most which is "dismissal". In cases of corruption or conduct involving immorality or conduct of other serious nature, the penalty of dismissal is justified in all departments. However, in absence from duty without formal permission is to be taken on a different footing and has to be judged in the circumstances of each case. This includes the Department to which a civil servant belongs, his previous conduct and the circumstances in which the absence took place. In law enforcing agencies, like Police and Rangers, etc., we have never excused wilful absence from duty even for one day and have upheld the orders of dismissal or removal passed by the competent authorities. In other cases, however, as already stated, other considerations also are to be kept in mind.
12. From the record, we find that previous to the present incident, the appellant had been very highly talked of by his superior officers and had earned many testimonials. The appellant was recommended for honorarium by the Director, JPMC on 27th July, 1979. And again on 14th October, 1979. The Professor of Head of Department of Anaesthesio--logy has given the appellant a certificate to the effect that the appellant had been performing his duties honestly, regularly and to his satisfac--tion. Similar certificates are from Dr. Muhammad Suleman Sheikh and Dr. M.
Muneeruddin. There are also other certificates which too are of similar nature. This record of the appellant justifies leniency in punishment. Again there is reasonable excuse for remaining absent from duty for some period when the appellant met the accident. He did not cut off his link with the Department, but had been informing them and had been applying for leave throughout. These are other mitigating, circumstances which too are to be taken into consideration.
13. Apart from that, the learned counsel for the appellant has brought) to our notice two cases of two Doctors of JPMC who were penalised for absence without leave. The learned counsel for the appellant says that their cases were of more serious nature--the one is the case of Dr. Muhammad Ali Malik and the other is Dr. Naseem Begum. The former was penalised with stoppage of two increments while the latter with stoppage .Of one increment by the respondent-Department. We fail to understand, why discrimination has been made in the case of the appellant. Perhaps, these cases were not brought to the notice of the competent authority. We should not be taken to mean that in all cases of absence from duty, lenient view should be taken. Time has now come when the Government Servants should be more vigilant and keep up with the demand of the day.
14. In the circumstances just mentioned, we partly accept this appeal and convert the punishment of dismissal to that of stoppage of increments for three years with cumulative effect. The appellant shall stand reinstated forthwith. The period from 17-8 1981 to 16-9-1981 should be treated as period spent on leave with full pay, because for this period the appellant's application for grant of leave had been duly recommended and the appellant can be expected to be under the impression that one month's leave had been granted. The period from 17-9-1981 upto the date of the present order be treated as extraordinary leave Without pay. However, if for this period any salary has been paid to the appellant, that should not be recovered.
15. The above decision of penalty, in our opinion, is commensurate, with the conduct of the appellant though it is more harsh than decisions taken by the Ministry itself in respect of some other colleague) of the appellant. We are quite conscious that the order will have the effect of not only depriving the appellant of three years increments for the whole of his service career, but would also result in deferring the period equal to the period of absence (now converted into extraordinary leave without pay), for counting towards pension and increments. However, we think this penalty to be justified as it would act as deterrent for others who in respect of any such misconduct committed in future, may be dealt with more severely.
A. E.