JUSTICE (RTD) MUNAWA-RALI KHAN (CHAIRMAN)-This is an unfortunate case which has lingered, for over seven years, mainly due to indifference and inefficiency of the departmental functionaries concerned. Its brief history gathered from the case file begins with issuance of the transfer order dated 7.9.1983 issued of way the certificate of School Education Hyderabad, whereby the services of appellant Ghulam Zohra, JST, Govt. Girls High School, Shikarpur, were transferred and placed at the disposal of the District Education1 Officer (Girls) Hyderabad. The said transfer was made on the appellant's own request. After being relieved from Shikarpur School on 10.9.1983 she reported for duty'to the Dist. Education Officer (Girls), Hyderabad two days later on 12th September, 1983. Her duty report was duly entered in the Inward Register at S.No:344 dated 15.9.1983. Instead of giving posting order to the appellant, she was allegedly advised by the List. Education Officer to apply for long extra-ordinary leave as the conditions were disturbed owing to the MRD Movement being at its peak. Accordingly she applied for extra-ordinary leave for eleven months but the same was refused for the reason that no posting order had been issued.
2. Thereafter the appellant made persistent requests for issuing of the posting order but all in vains until she received letter dated 21.9.1987 from the District Education Officer, (Girls) Hyderabad, advising the appellant to obtain a fresh order of her inter-district transfer. She took up the matter with the authorities but with no result. She once again received a communication dated 6.6.1988 from the above authority wherein on one hand she was intimated that her posting order could not be issued after her absence from duty for more than two years and on the other hand she was advised to apply for the post of JST afresh if so desired. Thereafter she complained to the higher authorities. She was ultimately served with show-cause notice dated 31.3.1990, alleging therein that the appellant did not report for duty but continued to remain absent. She furnished reply to the said notice denying the allegations contained in it. The appellant also received letter for personal hearing and was served with final show-couse notice. After considering the appellant's reply to the show-cause notice, she was awarded the penalty of removal from service vide order dated 6.11.1990 of the Dist. Education Officer (Girls) Hyderabad. The appellant challenged this order in departmental appeal filed before the Director Education, Schools, Hyderabad. As no decision was given in that appeal until after expiry of 90 days the appellant filed the present appeal on 1.4.1991.We heard the arguments of the learned counsel for both the parties and also went through the massive record of the case carefully.The details of the charge contained in the show-cause notice are as under:"
That on your transfer from Shikarpur to Hyderabad vide Director School Education, Hyderabad i$ order No. A-W-II 716-20, dated7.9.1983 and after being relieved from there, you did not report for duty and remained absent till to date."
3. The learned counsel for the appellant attacked the above charge as being false and fabricated.
According to him, the appellant after being relieved of the charge from Shikarpur High School, had reported for duty to the District Education Officer (Girls), Hyderabad. In support of his argument he relied upon the Entry No: 744 dated 15.9.1983 of the Inward Register of the office of the aforesaid Education Officer. He also referred to the admission made in this regard in the written statement filed on behalf of the official respondents. Therefore the learned counsel submitted that since the above charge was notproved against the appellant, the order of her removal from service was notsustainable.It goes without saying that consequent upon issuance at the order dated7.9.1983 of the Director School Education, Hyderabad, making inter-district transfer of the appellant, she was relieved of the charge from Shikarpur District. This is confirmed even from the first portion of the charge itself. It is the latter portion of charge that after her release from Shikarpur District the appellant did not report for duty in the Hyderabad District but instead continued to remain, absent until the date of the show-cause notice i.e. 31.3.1990, which is in controversy. In fact this is the only charge against the appellant. But according to the learned counsel for the appellant the Department was unable to prove the said charge against his client. Admittedly no regular enquiry took place in this case. In absence of such enquiry, we have to see if the material available on record was enough to warrant the conclusion that the afore-mentioned charge was proved against the appellant. As has been pointed out earlier the appellant has vehemently denied (he charge. On the contrary her plea is that when she reported for duty she was advised to proceed on long extra-ordinary leave owing to intensity of the MRD Movement. Of course she has submitted a copy of the duty report indicating that she had reported for further posting order on 12th September, 1983(F.N) to the District Education Officer (Girls), Hyderabad. As disclosed in this report it was entered in the Inward Register as per entry No: 744 dated 15.9.1983. The truth of the entry was not denied even by the learned Govt, counsel. We ourselves have also verified its authenticity by looking into the Register in question.
4. Apart from above, we may refer to the relevant portion of the memo of appeal wherein the appellant has raised the plea of submitting her duty report for further posting order. It is mentioned in para 5 of the memo of appeal, which reads as under:"
5. That the appellant in accordance with the above noted relieving order dated 10.9.1983 was reported for duty and posting to the Respondent No.1, vide her duty report dated 12.9.1983 which was duty inwarded in Inward register at serial No: 744 dated 15.9.1983. The phlocopy whereof is filed herewith as Annexure 'E'."The truth of the above para is admitted in para 1 of "parawise replies to the Facts" staled in the written statement filed by the learned Assistant Advocate- General on behalf of the respondents. The admission has been made in the following words:"
1. That the contents of paras 1 to 5 of the Memo of Appeal are admitted."
6. The very fact that disciplinary action was initiated against the appellant by the Dist. Education Officer (Female), Hyderabad by serving on her the show-cause notice, also signed by the said officer, goes to prove that the appellant had submitted her duty report to the said District Education Officer, thereby placing herself within her jurisdiction. Otherwise she would not have been competent to commence the departmental proceedings against the appellant and inflict punishment on her. Further more the two communications, one dated 21.9.1987 and another dated 6.6.1988 written to the appellant by the aforesaid- District Education Officer (Girls) Hyderabad also lend support to the appellant's case. The letter dated 21.9.1987 addressed to the appellant was obviously in reply to her application dated 9.9.1987 whereby she had reminded the said District Education Officer that inspite of her submitting duty report on 12.9.1983 which was entered in the Inward Register vide entry No: 744 dated 15.9.1983, she was still waiting for posting order. The reply as per above letter was couched in the following language:"To,Miss: Ghulam Zuhra,D/o Mohammad Juman Mallah, SUB: INTER DISTRICT TRANSFER.Ref: your application dated 9.9.1987.Since you were not absorbed in this District in pursuance of Directorate School Education Hyd:Region Hyd: Order No. Aw-II/- 716-20 dated 7.9.1983.As such you are advised to obtain the Inter Distt: transfer order from the higher authority afresh and produce in this office for consideration.Sd/-(MRS: ZUBEDAH QADRI) DISTRICT EDUCATION OFFICER (G)HYDERABAD"Had the appellant not submitted her duty report as early as 12.9.1983, the said Dist. Education Officer (Female)would not have bothered to write the above letter to her. The advice contained in the said letter as regards securing of fresh inter district transfer order was, in our opinion, intended only to cover the intervening gap of time and the consequent lapses committed by the said officer's office.6. The other letter dated 6/6/1988 of the Dist. Education Officer, (Girls) Hyderabad addressed to the appellant was also in reply to her application dated 14.4.1988 wherein also she had requested for issuing of long-awaited posting order. This time the appellant was informed that since due to her absence for more than two years, posting order, could not be issued, she could apply for fresh appointment if so desired. Thus the letter clearly indicated that the appellant had been fighting her battle for her posting order, notwithstanding the passage of long time.From the above discussion we are convinced that after being relieved of the charge in Shikarpur, District, the appellate had reported for duty in the Hyderabad District. As such the charge to the contrary could not be up held. However further charge against the appellant is that she continued to remain absent until the date of the show- cause notice.
The appellant has vehemently denied this charge. On the contrary she has taken the plea that as advised by the Education authorities she had applied for extra-ordinary leave for eleven months and it was after expiry of the said period of leave that she did every thing possible forget the authorities issue her posting order but instead she was served with show-cause notice as mentioned above.
Despite such plea she has failed to prove that any such leave was sanctioned to her. No order sanctioning such leave has been produced in support, nevertheless it is an admitted position that appellant's posting order was never issued. As such she did not have opportunity to resume duties in the Hyderabad District. Accordingly if she examined absent, she was not to blame may be the indifference of the authorities had compelled her to apply for extra-ordinary leave and avail the same even in anticipation of its sanction. In any case we have came across a lot of written material available in the case file indicating that appellant as well as her father who is also a Government emplovee have been running fjom pillar to post for securing posting order for the appellant.7. For above reasons we are of the view that after the appellant reported for duly in Hyderabad Dist. It was the duty of the concerned authorities of the said Dist. To have given her posting order either immediately after submission of the duty report or after expiry of the alleged extra-ordinary leave for eleven months. Since her posting order was never issue the entire blame of her unauthorized absence from duty could not be laid at her door steps. Of course we have noted, with interest the appellant's failure to have approached the legal forums for the desired relief. But that reason by itself was not enough to deprive her of her right to employment. Accordingly we allow the appeal with no order as to costs and set aside the order of the appellant's removal from service. On her reinstatement, she would however not be entitled to claim any arrears of salary etc. For the period she had not rendered any service. The entire period right from the date of her report for duty in Hyderabad Dist. Upto the date of her reinstatement would be treated as extra-ordinary leave.Given under our hands and the Seal of this Tribunal on this 30th day of December; 1991 at Karachi.