ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --Appellant Mr. Shahid Hamidullah, a Sub-Engineer in WAPDA, has preferred this appeal against the order of his removal from service passed on 18-5- 1992.
2. The facts of the case are that the appellant while working as a Sub---Engineer in Hyderology Project at Quetta was transferred to Karachi. He accordingly joined his duty on 4-10-1990. The appellant applied for 8 days casual leave with effect from 16-10-1990 to 23-10-1990 to bring his luggage from his home. The leave was sanctioned and the appellant proceeded on leave, where he fell ill and he sent application through a telegram requesting for extension of leave on medical grounds. The appellant continued sending leave applications for extension of leave along with medical certificates. However, the appellant received a letter dated 18-5-1992 whereby he stood removed from service with effect from 16-10-1990, the date of his absence. The appellant preferred a departmental appeal but the same was rejected vide order dated 13-9-1992. He then filed this appeal before the Tribunal on 14-10-1992.
3. Mr. Basharatullah Khan, the learned Advocate for the appellant contended that the appellant has been removed from service on account of absence from duty and that charge does not come within the meaning of `misconduct' as defined in sub-rule (5) of Rule 2 of the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 and the appellant was not liable for departmental action. He further contended that under Rule 5-A of the E&D Rules, 1978 which relates to the charge of wilful absence, the appellant could be punished by imposing on him penalty -of stoppage of increment for a period of one year, without cumulative effect; and major penalty of removal from service could not be imposed on the charge of absence from duty, particularly in the circumstances when the appellant had put in about 17 years service in WAPDA and there was no adverse report against him in the past, except this incident, and he had sufficient leave at his credit and under the WAPDA Leave Rules, his period of absence could be regularised by granting him leave due, or at the most could be treated as leave without pay. He submitted that the punishment awarded to the appellant is not commensurate with the charge of absence. He also submitted that both the impugned orders, original as well as appellate, have been passed by one and the same officer and is liable to be set aside.
4. The respondent WAPDA have contested the appeal and the learned counsel, Mr. Muhammad Ayaz Khan, appearing on their behalf has argued that inquiry was conducted but the appellant did not participate in the proceedings and, therefore, ex parte order was made against the appellant after fulfilling the requisite formalities as laid down under the E&D Rules. He also submitted that the impugned order of removal from service was passed by Mr. Warsi but the appellate order was made by another officer, who was the appellate authority in the case of the appellant but the decision of rejection for appeal was conveyed by Mr. Warsi. As such, there is no illegality.
5. The legal objection raised by the learned counsel for the appellant is that the case of the appellant does not come within the definition of `misconduct' as defined in Rule 5 of the WAPDA (E&D) Rules and, if at all, the appellant was found guilty of the charge, he could be proceeded against under Rule 5-A and in that case only minor penalty of stoppage of increment for a period of one year, without cumulative effect, could be imposed. Although there was charge of wilful absence against the appellant, but the fact cannot be denied that the appellant in spite of repeated letters and telegrams failed to resume duty and thereby failed to comply with lawful orders of the competent authority, and such act of the appellant did amount to misconduct. Rule 5 of the WAPDA (E&D) Rules relates to `Misconduct' and sub-rule (iii) thereof reads as under:
(iii) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.
In this case, the appellant was directed time and again to resume duty but he did not comply with the lawful orders of the competent authority and remained absent intentionally and deliberately and his such conduct of disobedience and insubordination did amount to `misconduct', especially when illness was such that he was only advised rest and never had been indoor patient and medical certificates not beyond doubtful. His case is fully covered under Rule 5(iii) of the E&D Rules, and it was not a case of Rule 5-A. Therefore, the objection of the learned counsel is overruled.
6. On merits, the record bears out that the appellant applied for 8 days casual leave from 16-10- 1990 to 23-10-1990 which was duly sanctioned. According to the appellant he fell ill and started sending telegrams requesting for 15 days as on each occasion from D.G. Khan. The telegrams are dated 31-10-1990; 18-11-1990; 17-12-1990 and 19-1-1991 on the pretext of illness. Soon after the receipt of the medical certificates issued by Dr. Ahmad Khan, the WAPDA issued a letter, dated 5-10-1991 to the said Doctor to verify the genuineness of the certificates issued by him. The letter reads as under:- "Sub: Mr. Shahid Hameedullah Sub-Engineer It is informed that Mr. Shahid Hameedullah, Sub-Engineer SWH, WAPDA; Karachi Division remained under your treatment from dated 22-10-1990 and you have advised to him for the bed rest through following Medical Certificates:-
(1) Medical CertificateAdvised for Rest dt:22-10-199022-10-1990 to 22-12-1990
(2) Medical CertificateAdvised for Rest dt: 23-12-199023-12-1990 to 25-5-1991
(3) Medical CertificateAdvised for Rest dt:26-5-199126-5-1991 to 13-7-1991
(4) Medical CertificateAdvised for Rest dt: 26-5-199126-5-1991 to 31-8-1991.
It has been observed that the two Medical Certificates issued by your goodself on the same date with advise for the bed rest in different periods.
You are requested to please be intimated the actual period suggested by you to Mr. Shahid Hameedullah for rest.
This letter may kindly be got noted 'from Mr. Shahid Hameedullah, Sub-Engineer. Noted copy may kindly be furnished to this office."
There is no reply from the Doctor which clearly shows that the medical certificates produced by the appellant were doubtful.
7. On receipt of the telegrams, the WAPDA vide letter dated 5-11-1990 asked the appellant to submit the medical certificate to the WAPDA Medical Officer but the appellant did not comply with the orders. He was also directed to appear and produce Medical Officer, which he failed to do so. The appellant was also directed to resume duty and appear before the Medical Superintendent, WAPDA, at Quetta for medical opinion. All these letters remained unheeded and there was no response from the appellant. The contention of the appellant that these letters were never received by him, but this fact is falsified by his own conduct that the removal order was duly received by him and against which he made a departmental appeal. Under Rule 4 of the Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, leave cannot be availed of as of right but the discretion to grant or refuse leave lay with the competent authority. Under Rule 21 of the Rules, leave applied for on medical certificate up to 30 days shall not ordinarily be refused provided the medical certificate so produced by the applicant is signed by Medical Officer or a Medical Officer authorised by WAPDA or a Medical Officer of Government Hospital Dispensary/CMH. In cases involving leave beyond 30 days on medical ground, the matter shall be referred to the Medical Board or the Wapda Medical Superintendent, or Civil Surgeon, or Medical Superintendent of District Hospital or the Commanding Officer of the CMH. The appellant admittedly did not appear before the Medical Superintendent, Quetta and thus flouted the instructions for grant of medical leave. In case he did not receive any response to his medical certificates/leave applications, it was incumbent upon him to make inquiries from the respondent WAPDA even on telephone in case he was so seriously bed-ridden. It thus follows that the appellant did not resume duty and remained absent from duty without any cogent grounds and it was a case of disobedience and insubordination and wilful absence for which he had no plausible explanation to defy the lawful orders for not resuming duty. As such, he was liable for departmental action and had to be punished with appropriate punishment. For such a long and wilful absence from duty, i.e. From 16-10-1990 to 18-5-1992 the appellant could be imposed the penalty of dismissal from service also, but the competent authority taking into consideration all the relevant factors, passed the order of removal from service and, in our opinion, it was an appropriate order keeping in view the conduct and indolence of the appellant. The impugned order of removal from service does not call for interference, and we accordingly dismiss the appeal, with no order as to costs.
8. We may observe here that the impugned order of removal of the appellant was passed on 18-5- 1992, but it has been made effective with retrospective effect from 16-10-1990, but this lacuna can be rectified by the Tribunal by making appropriate order. The appellant remained absent from duty with effect from 24-10-1990 till the passing of the impugned order dated 18-5-1992. Therefore, this order will take effect from the date of the order viz. 18-5-1992 but he shall not be entitled to financial benefits for that period due to absence. However, he shall be paid salary for the period from 16-10- 1990 to 23-10-1990, the period he remained on sanctioned leave.