ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal, as stated in the memo of appeal, it is stated that the appellant joined the T&T Department as Lower Division Clerk on 14-5- 1973. He was promoted as Assistant. Due to long unauthorized absence from duty consequent upon disciplinary proceedings he was dismissed from service. It is alleged that the lower staff mala fidely processed the case of the appellant by concealment of facts which culminated into dismissal of the appellant. According to him, the order of dismissal was not communicated to him and as such, he could not file departmental appeal or representation to the competent authority till 5-7-1993 when the copy of dismissal order was delivered to him on the direction of Lahore High Court, Rawalpindi Bench, in his writ petition. On receipt of the copy of dismissal orders, he preferred appeal to the Chairman, PTC which was not responded. After the expiry of the statutory period of 120 days, he could not file appeal before the Tribunal in time as he was sick and in support he has annexed copy of a medical certificate in original from the private medical practitioner, countersigned by the Medical Superintendent, Civil Hospital, Chakwal who advised him rest for one month from 13-11-1993. It has been argued that action against the appellant was taken in violation of the E&D Rules as he was not afforded opportunity of defence and personal hearing. On merits, it has been stated that the appellant remained on duty till 27-2-1982 when on 26-4-1982 his explanation was called on the ground that he was granted three days casual leave from 28-2-1982 to 2-3-1982 with permission to leave the station but thereafter he started submitting applications for 15 days leave on medical grounds and certificates issued by the Medical Officer, Poly Clinic, Islamabad and thereafter he extended his leave for a further period of 15 days by sending a medical certificate from a private medical practitioner, and he was called upon to explain why he left the headquarter without obtaining permission. The appellant through his application, dated nil submitted that he proceeded on three days sanctioned leave and after expiry of said leave, he reached Islamabad but fell i11 and appeared before the Medical Officer, "Poly Clinic, Islamabad who advised him rest for 15 days from 3-3-1982 to 17-3-1982. He submitted that since there was no one to look after him at Islamabad, he left for his hometown at Chakwal and started getting treatment from a private Doctor, and requested to drop the disciplinary proceedings. It is stated that the respondents rejected the leave application and treated him absent from duty. Another letter dated 6-5-1982 was issued to the appellant whereby he was informed that the medical certificates produced by him have been referred to the concerned Civil Surgeon for second medical opinion vide telegram dated 24-4-1982 anal the Medical certificate sent by him alongwith his application dated 16-4-1 95 were also returned to him as they were not countersigned by the Civil Surgeon. He was directed to resume duty immediately; or in case he was sick he should submit application/medical certificate duly countersigned by the Civil Surgeon Govt. Hospital, Chakwal and that no application without countersignature of the Civil Surgeon will be accepted. In response he submitted the medical certificates on 15-5-1982, issued by the private medical practitioners and duly countersigned by the Senior Medical Officer and requested for grant of leave from 16-4-1982 to 31-4-1982 (the signatures of the appellant are different and do not ally with his actual signatures). Thereafter, a show-cause notice dated 6th July, 1982 was served on the appellant and is reproduced below.
"Whereas you Mr. Khaflul Haq Awan, Assistant (Grade-11) were proceeded on 3 days casual leave with effect from 28-2-1952 to 2-3-1982, with permission to leave the station. As the purpose of availing leave was no more existed, the extension of leave applied for 15 days was not accepted and you were directed to report for duty but you failed to resume duty and further applied for extension of leave on medical grounds. The medical certificate being not obtained from Civil Surgeon Office were rejected. Despite that you kept on absconding from duty which is grave form of MISCONDUCT.
AND WHEREAS you Mr. Khalilul Haq Awan were directed through telegram and letters, issued frequently at the available address, either to resume duty or to appear before Civil Surgeon for second medical opinion but you failed to comply with the orders and thus have become guilty of absconding from duty.
AND WHEREAS from the facts and circumstances it is found that you are prima facie guilty of MISCONDUCT.
NOW THEREFORE, you the said Mr. Khalilul Haq Awan, Assistant (Grade 11) are hereby directed to report personally or to show cause within seven days of the receipt of this notice why the penalty of dismissal from service should not be imposed upon you on the ground of non-compliance of office orders and absconding from duty.
In case no personal appearance or written reply is received within the time-limit prescribed herein, the case will be decided ex pane.
(Sd.) DIRECTOR (STAFF)".
The appellant replied to the show-cause notice vide his application dated 12-7-1992 (on this application the signatures of the appellant are also different) and reiterated his earlier submissions with regard to the medical certificates sent by him. He further contended that he being a non- gazetted employee, the requirement of getting the certificates countersigned by the Civil Surgeon was not attracted in his case. In para (e) of the said application he also submitted that he had applied for one year's extraordinary leave without pay on 15-5-1982. He requested for withdrawal of the notice and grant of EOL for one year. He has taken legal points that the appellant was not given final show --cause notice and ex parte proceedings were taken against him without affording him personal hearing and as such the disciplinary proceedings as also the dismissal order is illegal.
Alongwith the memo of appeal, an application for condonation of delay has been filed under section 5 of the Limitation Act, in which it has been stated that copy of dismissal order was delivered on 5-7-1993 on the direction of the High Court, Rawalpindi Bench, and thereafter the appellant filed departmental appeal on 25-7-1993 to the Chairman, PTC which is still pending, and that after the expiry of 90 days, he filed this appeal as the appellant was confined to bed due to illness from 13-11-1993 to 12-12-1993 on medical grounds. It is `also mentioned that due to illness, he could not move from Chakwal and contact his Advocate for filing this appeal. He prayed that the delay be condoned.
2. The respondent department has filed comments, and the learned counsel appearing on their behalf, at the outset, raised the preliminary legal objections that the appeal is time-barred and that the appeal is also hit by section 4 (1) as no appeal as provided by laws was filed. On merits, it has been stated that the appellant was allowed three days c.l. From 28-2-1982 to 2-3-1982. The appellant applied for extension in leave for 15 days which was refused and he was directed to resume duty. He did not join. He submitted another application for extension of leave on medical grounds. Since the medical certificates submitted by the appellant were not of authorized medical doctors, he was directed to appear before the Civil Surgeon for second medical opinion as provided under Rule 20(2) of the Revised Leave Rules, 1980, but the appellant did not comply with those orders. He was accordingly served a show-cause notice dated 6th July, 1982 whereby he was directed to report personally or to show cause and in case no personal appearance is made or written reply is received, the case will be decided ex parte. The appellant did not respond to this notice. The show-cause notice was also published in "The Pakistan. Times" for obtaining appearance of the appellant, but all in vain. Ultimately, the respondents were constrained to pass the impugned order of dismissal of the appellant from service. It has further been stated that the appellant was in Saudi Arabia throughout the period in question and it was on this account that he did not resume duty. With regard to the allegations of the appellant against certain lower staff that they were instrumental in getting him dismissed from service, it is argued that the appellant has not mentioned particular names of the staff and as such the allegation is vague and there was no question of mala fide but the competent authority after examining the case and entire record passed the impugned order.
3. We have considered the arguments of learned counsel for both the parties and perused the record. The undisputed facts are that the appellant left for his home by getting three days leave from 28-2-1982 to 2-3-1982 and after the expiry of said leave, he came to Islamabad but he did not join and according to him he fell ill and it is strange to note that the appellant instead of going to T&T Dispensary went to Poly Clinic and obtained medical certificate for 15 days rest, but the appellant hag not annexed copy of the said medical certificate, and therefore his plea cannot be accepted as it is a matter of dispute. The appellant was directed by the department vide letter dated 26-4-1982 to explain the reasons why he left the station without prior permission and remained absent, and even then he did not report for duty. He was again directed by the department vide letter to report for duty and was also directed that the medical certificate submitted by him from the Poly Clinic and the private medical practitioners had been referred to the Civil Surgeon and were returned to him for further necessary action. He did not report for duty but returned the certificates by getting them countersigned by the Senior Medical Officer, Civil Hospital, Chakwal. It is pertinent to mention that in the medical certificates, the appellant was not an indoor patient and the disease mentioned was not so serious as to have prevented him coming to Islamabad where better medical facilities, and particularly, free, are available, and the certificates are not genuine one but have been procured only to cover up his long absence, although he was reportedly out of country, away to Saudi Arabia. He was served a show-cause notice on 6th July, 1982 whereby he was directed to report for duty and to show cause why penalty of dismissal may not be imposed. He was further directed that in case no personal appearance is made or written reply is not received from him, the case will be decided ex parte. Similar publication was also made in the newspapers, but the appellant did not bother to turn up and join.
Since it was a case of unauthorized and willful absence, no regular inquiry was called for and looking to the contumacious attitude of the appellant the respondents were justified in passing the dismissal order of the appellant and calls for no interference. The case of the appellant is that this order of dismissal passed on. 19th September, 1982 was not served on him, but from the record it appears that it was duly endorsed to the appellant on the home address of Chakwal, and copy was also endorsed on his Islamabad address and there is no reason to believe that it was not received by him. It is also strange that the appellant right from 1982 till 1993 remained silent and in case he was not aware of his dismissal from service, he should have come before the Tribunal or file departmental appeal, which he failed for about 11 years. It also goes to prove the stand of the respondents that during this whole period the appellant was-out of country and as such' he did not pursue the matter. It is prima facie clear that soon after his return from abroad, he started making representations here and there. Firstly, he made a complaint to the Wafaqi Mohtasib but the same was rejected after due consideration by letter dated 28th July, 1991. In order to cover up his long delay, he filed Writ Petition No.661/93 before the Lahore High Court, Rawalpindi Bench on the ground that the impugned order of his dismissal was not communicated to him. When the matter came up for hearing on 5-7-1993, the learned counsel for the respondents delivered copy of the dismissal order dated 19th September, 1982 to the learned counsel for the appellant. Thus, the learned counsel for the appellant made a statement that his grievance has been redressed, he does not want to pursue the petition and it was accordingly disposed of. The appellant then made a departmental appeal to the Chairman, PTC on 25-7-1993, which was obviously hopelessly time- barred and remained un-responded, and the appeal filed before the Tribunal on 14-12-1993 is incompetent in view of the law laid down by the Supreme Court in the case of Chairman, PIAC v.
Nasim Malik, reported in PLD 1990 SC 951. The contention of the appellant is that he fell sick for which he obtained a medical certificate from Dr. Mushtaq Ahmed Khawaja, a private medical practitioner from Chakwal, in which it has been mentioned that the appellant is suffering from Infective Hepatitus and recommended bed rest for one month from 13-11-1993. It is attempt to cover the period of limitation of 11 years as after the filing of the departmental appeal dated 25-7- 1993, appeal before the Tribunal was to be preferred after the expiry of 90 days waiting period, in case of non-reply to the departmental appeal, and then within 30 days, and that period expired on 25-11-1993 and the medical certificate produced by the appellant cannot come to his rescue for enlargement of time, in view of the Supreme Court decision reported in 1982 SCM R 386 and the application for condonation of delay is rejected. Even Writ Petition was filed in 1993 when he was dismissed in 1982 and never reported for duty and delay is of 11 years.
4. For the reasons recorded above, the appeal fails on merits as well as on the point of limitation and is dismissed with costs.