' SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the Constitution to examine whether Fundamental Rule 18 had become otiose on the enforcement of the Civil Servants Act and the Government Servants (Efficiency and Discipline) Rules, 1973 and whether the action taken under Fundamental Rule 18 was not in conformity with the procedure applicable thereto as held in Mrs. Razia Abbas Ahmad v. The Government of West Pakistan and 2 others PLD 1971 Kar.
234.
2. The appellant was employed as a School Teacher in one of the educational institutions in the Cantonment and Garrisons. In view of very hard an& pressing circumstances, on account of retarded growth of her child, she had proceeded on leave from 4-11-1978 to 7-10-1983. She could not in view of those very hard circumstances rejoin on the expiry of her leave and sought its extension. She reported for duty on 15-12-1983 and was allowed to work till 15-1-1984, when she again proceeded on leave on account of her own ailment. When she reported on 15-4-1984, she was handed over the order impugned before the Tribunal which read as hereunder:- "After availing the total period of 5 years of leave, Mrs. Maryam Younas TGT, F.G. Girls High School, Chaklala has failed to resume duty by 411-1983 (FN). She, therefore, ceases to be in Government employment w.e.f, 4-11-1983 under FR-18 and her name stands struck off strength of this Department w.e.f, the same date."
' She sought departmental remedy against the order but failed. She appealed to the Service Tribunal but failed there too. On merits the Tribunal observed as hereunder:-- "We have given our anxious thought to the submissions made by the parties. Regarding the submission of the appellant that the impugned action could not be taken except by taking proceedings against her under the Government Servants (Efficiency and Discipline) Rules, 1973, the well-settled legal position is that .Where two powers are concurrently available; one of dismissal with a stigma and the other of terminating the service without stigma in accordance with law, it is open for the employer to adopt either. It could not be claimed that necessarily the disciplinary proceedings resulting in dismissal or removal, should have been adopted. Evidently when the appellant failed to resume her duty on expiry of her leave, on 8-10-1983 she was directed vide letter dated 31-10-1983, to resume duty by 20-11-1983 or send her resignation but she failed to comply therewith. A case was accordingly processed and a formal order for termination of her services under the provisions of FR-18 was passed. We are thus satisfied that the impugned order was passed to give effect to and in conformity with the relevant provisions of relevant law i.e, FR-18."
' While parting with the case, the Service Tribunal made the following observation:-- "It is nevertheless to be seen that the effect of the provisions of FR-18 is subject to otherwise determination by the President of Pakistan in view of the special circumstances of the case. The appellant, therefore, should have approached the President or an Authority authorised by the President in this behalf, if any, for relief which was not done. The appellant may, if she so wishes, do so now and we trust that if a petition/representation is made by the appellant for relief in view of the special circumstances of the case, it would be submitted by the Respondent-Department for the order of the President/Authority authorised by the President in this behalf."
3. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the appellant submitted that Rule 23 of the revised leave rules published in the ESTACODE at page 469 have taken over so as to displace the existence and the efficacy of Fundamental Rule 18 invoked by the Authorities and upheld by the Tribunal for maintaining the order impugned before the Tribunal. It is also contended that section 18 of the Civil Servants Act which deals with leave and provides that "a civil servant shall be allowed leave in accordance with the leave rules applicable to him, provided that the grant of leave will depend on the exigencies of service and be at the discretion of the competent authority", has the same effect. The learned counsel has also referred to the Government Servants (Efficiency and Discipline) Rules, particularly Rule 4(2) and Dr. Ghulam Rasul v. Chief Secretary, Punjab and others 1986 PLC (C.S.) 485, to contend that absence without leave amounts to misconduct, and for proceeding against a civil servant for misconduct necessarily the proceedings had to be drawn up and compliance ensured with the requirements of Efficiency and Discipline Rules. It has further been contended that the department allowed the appellant to join service and to serve as a civil servant, therefore, there was no occasion for it to turn back and hand over the removal order.
Relying on the case of Mrs. Razia Abbas Ahmed, it has been contended that in giving effect to Fundamental Rule 18, the removal had in fact been ordered and it was necessary that the show- cause procedure should have been observed in doing so. The learned counsel has also finally impressed upon us the hard circumstances which led to the consequences for which the appellant should not have been made to suffer in this manner and to this extent.
4. The Fundamental Rule 18, which has been applied and whose existence and efficacy at this stage is now under examination, reads as hereunder:-- "Unless the Governor-General in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service in Pakistan, whether with or without leave, a Government servant ceases to be in Government employ."
5. Fundamental Rule 18 does not stand alone. Rule 3.27 of the Civil Services Rules (Punjab) Volume I, reads as hereunder:-- "3.27. Unless a competent authority, in view of the special circumstances of the case, otherwise determines, after five years' continuous absence from duty, elsewhere than on foreign service in Pakistan, whether with or without leave, a Government servant ceases to be in Government employ."
6. Rule 33 of the Sindh Civil Services Rules, Manual (Volume I) reads as hereunder:-- "33. Unless Government in view of the special circumstances of the case shall otherwise determine, a Government servant after three years' continuous absence from duty, elsewhere than on foreign service in Pakistan with or without leave, ceases to be in Government employ, ' Note:--In the case of Government servants in service before Ist June, 1929 the maximum permissible period of absence from duty shall he five years:`
7. Fundamental Rule 18, unless shown to he inconsistent, has a statutory existence on the strength of subsection (2) of section 25 of the Civil Servants Act, B which provides as hereunder:-- "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act?
8. The Fundamental Rules were framed in 1922 under the Government of India Act then in force.
Section 18 of the Civil Servants Act and Rule 9 of the Leave Rules of 1980 are in no manner inconsistent with Fundamental Rule 18. On the contrary, they supplement the Rules. In this case, she was granted in the first instance leave from 4-11-1978 to 7-11-1982 and thereafter, in continuation, one year more upto 7-11-1983. The leave so combined exceeded five years period. Her name was struck off the list of civil service employees on 4-11-1983 i.e, within the period of leave but on the expiry of five years prescribed in Fundamental Rule 18. Keeping this date 4-11-1983 in view and the fact that the leave was granted upto 7-11-1983, the argument of the learned counsel for the appellant that she has been dealt with for absence without leave and the action should have been taken, under the Efficiency & Discipline Rules and for misconduct is totally misconceived. The case of Mrs. Razia Abbas Ahmed is distinguishable because a constitutional provision then existed which required giving of a show-cause notice before removal from service was to take effect. The consequences provided for in Fundamental Rule 18 were taken to amount to removal and that a show-cause procedure as mandated in the Constitution was insisted upon. In the case of Collector, Sahiwal and 2 others v. Mohammad Akhtar 1971 S CM R 681 this Court has laid down the law with regard to notice preceding adverse action, which has been followed all along in this country and it is to the following effect:-- "The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view then the defect, if any, in the initial order may be deemed to have been cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh PLD 1959 Kar. 669, it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision be merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsadda Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Peshawar 210.
' This Court, too, has consistently taken the same view vide; The Commissioner of Income-tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410, Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62 and Mansab Ali v. Amir PLD 1971 SC 124.
' This Court has gone to the extent of pointing out that that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
9. There is nothing in the law as applicable to the appellant mandating observance of a show cause procedure before giving effect to Fundamental Rule 18. On the contrary, that rule is so worded as to take over ipso facto, on the happening of the event. That event, in the case of the appellant had unquestionably happened. It being a statutory rule, a part of the terms and conditionns of the civil servant, should have been known to the appellant and also to the department. The leave should have been adjusted accordingly. In case it could not be so adjusted, necessarily request to the designated authority should have been made for avoidance or relief. Her rejoining the service and again proceeding on leave could not reverse the statutory effect of the rule. The intervention of the designated authority was imperative.
10. Our conclusion therefore is that Fundamental Rule 18 is not ultra vires the Civil Servants Act, that it is continued as a statutory rule on the strength of section 22 of Civil Servants Act, that no procedural requirement exists for giving effect to it. The remedy for the appellant lies, as pointed out by the Service Tribunal, in approaching the designated Authority and not challenging the legal effect of the rule itself. The appeal has no merit and is dismissed. No orders as to costs.