1. ' MUNAWAR ALI KHAN (CHAIRMAN).---Aggrieved by the order of his removal from service dated 25- 5-1993, the appellant, Dr. Pir Sahib Shah filed the present Appeal (Appeal No, 37 of 1994) before this Tribunal on 14-2-1994. The facts leading to the filing of the said appeal are these.-- ' The appellant was working as RMO (BPS.17) in Civil Hospital, Karachi when he was granted 120 days ex-Pakistan leave for higher studies vide Health Department's Notification, dated 3rd September, 1989. Subsequently the leave was extended for further period of 189 days from 24-1-1990 to 24-6- 1990 as per said Department's another Notification, dated 17th March, 1990. Once again the appellant approached the Health Department for grant of more leave, because his higher studies had not yet concluded. But according to appellant his request for leave was turned down. Instead disciplinary action was initiated against him. He was given show-cause notice dated 31-12-1991, alleging therein that on expiry of two periods of leave, first for 120 days and second for 189 days, he neither turned up to report for duty on 25-6-1990 nor applied for further extension. The appellant submitted his reply to the above show-cause notice wherein he also requested for more leave up to September, 1992. But instead he was given fmal show-cause notice, dated 13-10-1992. The appellant promptly replied to the said show-cause notice, reiterating his position that since his fmal examination would be over next year, grant of further leave to him be considered. Obviously his request for further leave went unheeded and he was removed from service by the order dated 25-5-1993. The appellant challenged the order of his removal from service in the departmental appeal preferred to the Chief Secretary who vide his order dated 3-11-1993 dismissed the same. As the appellant was still abroad in _Ireland his father filed Appeal No, 141/93 on his behalf before this Tribunal. As the said appeal was not in accordance with legal requirements, it was withdrawn.
2. Subsequently the present appeal was filed alongwith application for condonation of delay made in filing the present appeal.
3. ' We heard Syed Ansar Hussain for the appellant and Mr. Abdul Latif Ansari, AA.-G. For the offical respondent. With their assistance, we also went through the record relevant for disposal of the appeal.
4. ' This appeal was admitted for regular hearing subject to the question of limitation. We would therefore tackle that question first. It would appear that the order of the appellant's removal from service was passed on 25-5-1993 whereas the present appeal in which the said order has been targeted was filed on 14th February, 1994. Obviously the appellant owes an explanation for this delay of nearly nine months. Apprehending the difficulty of Limitation he has simultaneously filed application for condonation of the delay supported by his personal affidavit. As disclosed in his affidavit, his explanation for the delay that the order of rejection of his departmental appeal was communicated to his . Father at Nawabshah on 15-11-1993, when he was still abroad in Ireland. It was therefore not easy for him to file appeal within 30 days of the communication of said order.
5. Seeing no other option, he has further explained, he authorized his cousin Rahim Bux Dehri, resident of Karachi to file appeal on his behalf which he did on 14-12-1993, one day before expiry of the limitation. The appellant himself appeared before this Tribunal on 13-2-1994 when he was informed that necessary compliance of relevant rules was not made in filing the above appeal. Accordingly the said appeal was withdrawn and in its place the present appeal was filed on 14-2-1994 i.e three months after the communication of the rejection order to his father. If one month allowed to the appellant for filing appeal was deducted, the actual delay that he made in approaching this Tribunal would come to two months which, in the circumstances explained above was not so unreasonable as to deprive the appellant of his right to contest his removal from service.
6. Accordingly we allow the application for condonation of the delay made in filing this appeal.
7. ' As for merits of the case, it needs to be examined if the appellant's removal from service was legally correct. The order of removal was passed in the wake of the charges contained in the show- cause notice given to the appellant on 31st December, 1991. The details of the said charges (misconduct) listed in the show-cause notice are as under:--- "You were granted ex-Pakistan leave for 120 days with effect from 26-9-1989 which was further extended for six months upto 24-6-1990 and you were due to report for duty on 25-6-1990 but you neither joined after expiry of leave nor applied for further extension. You have thus remained absent wilfully from 25-6-1990 until now."
8. ' Although as per final show-cause notice, dated 13th October, 1992, the appellant failed to submit his reply to the first show-cause notice which included the above charges, yet he has produced before us a copy of his reply carrying the date of 25-1-1992 which he claims to have submitted in response to the said show-cause notice. In his reply he has manifestly admitted the truth of the allegations made against him in the first show-cause notice. The relevant portion of the reply containing his admissions reads as under:- " After expiry of my leave I was no doubt required to report for duty on 25-6-1990 but I could not return due to my preparation for R.N.C.S. (FRCS) Part II examination which was to be held in September, 1991 but due to unavoidable circumstances I would not be appeared (could not appear ?) in the examination, which is now going to be scheduled in November, 1992 It is very difficult for me to come back till such time I have cleared F.R.C.S. Part-II.
9. ' It is, therefore, earnestly requested that I may very grouchily (graciously?) be allowed further extension in ex-Pakistan leave upto September, 1992..........................................................................................
10. ' It is thus proved from the appellant's own admissions contained in his above reply that he remained absent from his duties unauthorisedly from 25-6-1990, the date of expiry of the leave duly granted to him till 23-1-1992, the date of his reply. The appellant has confirmed his admissions in this regard in para. 3 of his memo of appeal which reads as under:- "3. That the appellant replied to the show-cause notice and submitted that after expiry of his leave he was suffering from doubt whether to report for duty on 25-6-1990 but he further stated he could not return to his duty on account of the fact that he was making preparation for FRCS Part-II Examination which was to be held in September, 1991. He further submitted that but to unavoidable circumstances the appellant could not appear in the examination even scheduled to be held in November, 1992. He further submitted in his replies that he was sent abroad by the native country for improving his qualification and therefore it was not proper for him to return without clearing his FRCS 2nd Part. In the same replies the appellant requested for waiving off the charges and for allowing further extension ex-Pakistan leave upto leave upto September, 1992."
11. ' From perusal of the appellant's reply to the first show-cause notice and his recitals made in his memo. Of appeal, as reproduced above, no doubt is left in our mind that on expiry of two periods of leave one for 120 days and another for 180 days the appellant failed to report for duty and remained absent with effect from 25-6-1990 unauthorizedly. In para. 2 of his memo. Of appeal, the appellant claims to have approached the Department for more leave till finalization of his studies abroad but his request was turned down. There in no material on record to substantiate his assertion that on expiry of leave, the appellant ever applied for more leave but his application was turned down. He has not given the detail of his such application: namely: the date of application, the period of leave applied for etc. Nor has he placed on record even a simple copy of any such application. Had he made such application, he would have surely made a mention of it in his reply to the first show-cause notice. But the said reply was conspicuously silent in this regard. On the contrary it was through that reply that he prayed for more leave upto September, 1992. We also see no reason why the Department should suppress the appellant's application for more leave. At the most further leave would have been refused and the appellant intimated accordingly. In any case his absence for the period in question was unauthorized.
12. ' It would also be interesting to note that by the time final show-cause notice was issued to the appellant on 13th October, 1992 the appellant had not returned to his duties, though the leave applied for by him upto September, '1992 through his reply to the first show-cause notice had also expired. In his reply dated nil, to the said notice, he once again admitted his continued absence from duties. However, in para. 5 of his reply he has stated that he made several applications to the Health Department through registered post for extension of leave but not a single application was responded. We have already rejected the appellant's such assertion as baseless. As pointed out above in proof of such plea he has not produced even a simple copy of any such application nor has he produced proof of registry of such applications. However, in course of his arguments the appellant's learned counsel invited our reference to the application of the appellant's father, Pk Khalil-ur-Rehman addressed to the Chief Minister and the latter's orders thereon. Obviously the application did not carry any date but on its top the Chief Minister's Orders/ minutes were in these words: "Extension in leave without pay may be granted upto 31-11-1993 as requested."
13. ' While conveying the Chief Minister's said Orders/Minutes to the Chief Secretary, the Additional Secretary to the Chief Minister vide his communication dated 22-6-1993, wrote that "further necessary action may please be taken as per rules/policy under intimation to the applicant/this Secretariat." It would appear that the appellant had already been removed from service by order dated 25-5-1993 before the Additional Secretary to Chief Minister conveyed the Orders/Minutes of Chief Minister on 22-6-1993 to the Chief Secretary. In these circumstances further action was seemingly not called for. After his removal from service appellant had to challenge the order of his removal from service by filing departmental appeal. It seems departmental appeal was actually filed, first by appellants' father and then by the appellant himself, but the Chief Secretary to whom Chief Minister's orders/minutes were conveyed as above, rejected the said appeal and necessary intimation was conveyed vide Health Department's letter, dated 8th November, 1993 to the appellant through his father as under:-- ' You are informed that your above appeal has been considered by the competent Authority and rejected."
14. ' Despite the above order, the contention of the appellant's learned counsel was that the Departmental authorities were bound to implement the Chief Minister's orders. In support of his contention he cited 1993 SCM R 1326 as authority. In the reported case it was held: "Held under the relevant Constitutional provision existing on 22-6-1977 (i.e, before the 8th Amendment), the executive authority of the province was to be exercised by the Chief Minister-- Subsequent administration did not care to withdraw the order, even though the civil servant had been pressing for its implementation. Civil servant, therefore, should not have been denied the benefit of that order. Mere fact that, the order in question had not been communicated to civil servant did not detract from it efficacy--Order of Chief Minister assigning regularization and seniority was maintained and directed to be implemented."
15. ' It is clear from the above authority that the reported case occurred before the 8th Amendment was introduced in the Constitution and also in different set of circumstances. As such it was distinguishable from the present case and was not helpful to the appellant. Even otherwise the Chief Minister had not made the definite final order capable of straight away implementation. This was also clear from the covering letter of the Additional Secretary to the Chief Minister who had mentioned in the said letter that further necessary action was required to be taken as per rules/policy. Since the appellant had already been removed from service the question of implementation of Chief Minister's Order which was passed on later date did not arise. However, in such eventuality the rules did not permit automatic cancellation of the order of removal. Since the appellant had put in about ten years' service, he was not entitled to more than two years leave without pay. The appellant had been away from duties unauthorizedly for more than two years.
16. May be this reason too had influenced the thinking of the departmental authorities.
17. ' In view of the discussion we are convinced that the charge of unauthorised absence from his duties with effect from 25-6-1990 until the service of final show-cause notice on 13th October, 1992 has been fully established against the appellant. Consequently punishment awarded to him was legally in order. Our interference would therefore be uncalled far. Accordingly the appeal is dismissed with no order as to costs.