' AJMAL MIAN, 3.----This is a petition for leave to appeal against the ju, ent dated 22-11-1992 passed by the learned Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, in Appeal No, 209/92 filed by the respondent against his removal from service by the order of Petitioner No,2 dated 4.3-1985 on the ground of unauthorized absence, allowing the same by setting aside above order of his removal and reinstating the respondent with effect from the date of his removal with all back benefits,
2. The brief facts are that the respondent availed of four casual leaves on the dates mentioned in the impugned judgment. According to him his mother was seriously ill after the death of his father.
The respondent was removed because of above unauthorized absence as leave was not granted.
Respondent filed a departmental appeal which remained pending and was dismissed on 5-5- 1992. Thereupon, the respondent filed above Service Appeal within 30 days, which was allowed for the following reason:-- "Vide its Policy Letter No, SORI (SGA&ID) 1.73/70 dated 28-4-1971 Government had decided that 'unauthorised absence for one week or more should result in the initiation of proceedings for the imposition of one of the major penalties laid down in the Efficiency and Discipline Rules'. The intention of Government was that 'absence for a period of less than one week should be visited with minor penalty ' Thus, if the absence is not wilful and the circumstances of the present case clearly indicate that the appellant had not deliberately stayed away from duty, and the period of absence is also less than one week, then even proceedings under the Efficiency and Discipline Rules may not be initiated. The instant case is a classical example of abuse of authority."
' The petitioners have, therefore, filed present petition for leave to appeal.
3. In support of the above petition Mr. Abdul Majid. Sheikh, learned counsel appearing for the petitioner, has vehemently contended that since the' respondent was removed by order dated 4- 3-1985, he shot& have filed Service Appeal after 90 days as provided in the Punjab. Service Tribunals Act (IX of 1974), hereinafter referred to as the Act, and, therefore, the respondent's above appeal, which was filed in June 1992, was barred by time.
The above contention is devoid of any force as rightly pointed out by Hafiz Tariq Nasim, learned ASC for the respondent/Caveator. The respondent had the choice either to file appeal immediately on the expiry of 90 days from the date of filing of Departmental Appeal or he could have waited for the decision upon his Departmental Appeal, as has been held by this Court in the case of Haji Kadir Bux v. Province of Sindh and another reported in 1982 SCMR at page 582. The respondent opted for the latter, which was in consonance with the above judgment of this Court.
4. Then it was urged by Mr. Abdul Majid Sheikh that factually the respondent was absent unauthorisedly without filing any leave application and that the respondent's plea that he sent leave application through his brother was an afterthought plea.
However, he has not been able to deny the applicability of the Policy Letter dated 28-4-1971 relied upon by the Tribunal in the above-quoted para. 4 of the judgment. In this view of the matter, the major penalty of removal could not have been imposed on the respondent as he did not remain absent unauthorizedly for one week.
5. In view of the above legal position even we were to agree with the learned counsel for the petitioners that the respondent had not factually sent leave application through his brother, it would not make any difference.
6. The petition has no merits. Leave is, therefore, refused.