SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the departmental action against the appellant was vitiated on account of the fact that she was condemned unheard, and also because she remained under a bona fide impression that her application for leave could be granted, particularly so, when she had the necessary entitlement for grant of leave.
2. The appellant was employed in the Education Department of the Government of Baluchistan and had, according to the learned counsel, rendered meritorious service therein, improving her academic qualifications as well. She got married in 1974 or near about to a Federal Government employee in the Income-tax Department. In December, 1982, her husband was transferred to Karachi and thereafter to Sukkur. She invoked a Government policy-letter directing the departmental heads to post as far as possible the husband and the wife at the same station. She being a provincial employee, her request involved inter-provincial transfer and the concurrence of the another Provincial Government. Her request was not dealt with, with the speed and urgency which she wanted. She made application for earned leave and got the necessary accommodation till the vacations in the educational institutions of 1983-84. When the Colleges reopened on 1-3- 1984 she was not on duty and instead an application dated 26-2-1984 for earned leave w.e.f. 4-3- 1984 to 3-7-1984, was received. In the application, she gave no address of herself but in earlier application representation dated 14-2-1984 to the Secretary, Education Department she had given her address as "16-B, Block-3, Gulshan-e-Iqbal, Karachi". This application for leave was not accepted. A telegram was sent to her at her Karachi address directing her to report for duty forthwith. A notice thereafter appeared on 5-4-1984 in daily `Jang' Quetta. This notice somehow mentioned that the request for leave had been accepted in public interest which was actually a clerical mistake. But from the next sentence it is clear that she had been informed by telegram on 11-3-1984 that she should report for duty immediately but till then she had not reported. The published notice contained further warning that if she did not report within fifteen days of the publication of notice in Press, she would be dealt with under the Efficiency and Discipline Rules and dismissed from service.
3. The appellant, according to the learned counsel, remained unaware of these proceedings and ultimately on 29-5-1984 an order of her dismissal from service issued. She filed a Review Petition before the Martial Law Administrator which was also dismissed on 26-8-1984. She then approached the Service Tribunal and her appeal was partly accepted inasmuch as the dismissal was converted into compulsory retirement from service. The appellant felt aggrieved even by this order and riled an appeal in this Court.
4. Mr. Yahya Bakhtiar, Senior Advocate, the learned counsel for the appellant has contended that in view of the declared policy of the Government both the Federal as well as the Provincial, it was obligation of both the Governments to keep the husband and wife together and in demanding so, the appellant was only asserting a right which has been recognised by the Government.
Notwithstanding the fact that she had applied for earned leave, if it was not due to her, leave due of whatever kind should have been granted. She was, according to the learned counsel, entitled in any case, having rendered more than 10 years service to extraordinary leave without pay for five years under the Rules applicable to her. It was further contended that the refusal of the leave should not have been communicated by telegram but by registered post as the telegram never reached her and no presumption of service could be raised in respect of it. It is also contended that such penal action could be taken only when the absence from duty was found to he wilful and not otherwise. The facts and circumstances of the case abundantly showed that the absence from duty was not wilful. Finally, it was contended that in view of the equivocal nature of the notices served or attempted to be served on the appellant, she cannot be said to have been afforded proper opportunity of representing her case in the departmental enquiry and she has been condemned unheard.
5. Section 18 of the Baluchistan Civil Servants Act provides as hereunder:-- "A civil servant shall be allowed leave in accordance with 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."
6. The extent to which the appellant had been accommodated by the department clearly appears from the factual narration of the antecedent facts found in paragraph 3 of the Tribunal's judgment.
It cannot, therefore, be said that in refusing leave to the appellant from 1-3-1984 in spite of her entitlement to avail of extraordinary leave without pay for five years, a power not possessed was exercised or a discretion was exercised perversely.
7. We agree with the Service Tribunal that after having applied for leave she could not just relax and remain unconcerned with regard to her absence from duty without permission. She had to enquire and to ascertain about the fate of her application for leave because if necessary permission had not been granted for absence from duty, her absence had to be treated as without permission and against law. To that extent and in that manner her absence would clearly appear to be wilful.
8. The department did all that it could do. It sent telegram. It published a notice in the Press. There was undoubtedly a clerical error in the publication but the notice, as a whole, left no doubt about its import and purpose and it was a direction to the concerned to report for with for duty. The disciplinary rules, as they stood when the action was taken, fully authorised the action after publication of the notice and information to the appellant and after waiting for her to report for duty for such a long time of her absence from duty without permission.
We find no merit in the appeal and dismiss it with no order as to costs.