' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant, Mr. Azizur Rehman was working as U.D.C.
(Selection Grade-9) in the Regional Directorate of National Savings, Rawalpindi. He proceeded on four months' leave from 1-1-1994 to 30-4-1994 and was supposed to resume duty on 1-5-1994 but he again applied for extension of leave for four months from 2nd May, 1994 by submitted application on 30-4-1994, but he without getting the leave sanctioned remained absent.
Disciplinary proceedings were initiated against him with the issuance of a show-cause notice dated 28-6-1994 and finally by order dated 28th August, 1994, the competent Authority passed the order of his removal from service. The appellant filed departmental appeal on 27-9-1994 but the same was rejected vide order dated 4th December, 1994 and according to him he received that letter on 21-12-1994. He then preferred this appeal before the Tribunal on 22-1-1995 under section 4 of the Service Tribunals Act, 1973. Alongwith the memo. Of appeal, he has also filed application under section 5 of the Limitation Act for condonation of delay.
2. We have heard Mr. Sheikh Riazul Haq, Advocate for the appellant at length. It is argued that delay in filing the appeal was not intentional nor deliberate but it was due to late receipt of the rejection order of his appeal which was received by the appellant on 21-12-1994 and he filed this appeal within thirty days and the appeal is in time. In support of his contentions, the appellant has filed affidavit to this effect. The respondents have not filed counter-affidavit and the presumption goes in favour of the appellant and therefore, we accept the application made under section 5 of the Limitation Act, and the delay, if any, is condoned.
3. On merits, the learned counsel for the appellant submitted that the appellant had submitted medical certificate and under the rules, second medical opinion ought to have been obtained in case the department was not willing to accept the certificate. He submitted that the appellant could only be punished for negligence because he did make proper application for leave in time and since he was not aware of the rules, he left for leave on the assurance of the officers of the department and removal from service on the charge of absence was too harsh a punishment. He submitted that looking to the young age and the prevailing circumstances of unemployment, the appellant deserved a lesser punishment. He relied on 1992 PLC (C.S.) 670 (Jairamdas v.
Commissioner, Hyderabad Division).
4. Mr. M. Javid Aziz Sandhu, the learned counsel for the respondents, alongwith the departmental representative, has resisted the appeal contending that it was incumbent upon the appellant to have got leave sanctioned before proceeding but he remained absent on self-sanctioned leave, therefore, the department had no option but to pass the impugned ogler.
5. The appellant has rightly not pressed the appeal on merits as negligence is proved and it was incumbent upon him to have made proper application for leave and then got it sanctioned. On the other hand, there is also infirmity on the part of the respondents that whenever a medical certificate is submitted and is not relied upon, the proper course is that proper probe be made and second medical opinion as provided by law should also be obtained, which factor is missing in this case. We would have considered to remand the case, as urged by the appellant, but the learned counsel for the appellant after lengthy arguments finally has not pressed the appeal on merits and prays for lenient view. The departmental representative Mr. Liaqat Mahmood Sheikh, Assistant Director (HQ) when asked about the antecedents of the appellant and his service career since his joining the department, he submitted that there was no such complaint and the appellant was a well-behaved clerk and his record was very clean before this punishment was awarded. In view of these circumstances and looking to the young age, of the appellant when there was nothing adverse in his service career, we are inclined to take lenient view relying on the decision reported in 1992 PLC (C.S.) 670, wherein the order of termination of service on the charge of unauthorised absence, was modified to that of reduction to his substantive post of U.D.C. (B-7) for a period of two years, and the intervening period shall be treated as extraordinary leave without pay, and this order will be effective from the date of passing the original order viz. 28-8-1994 and the appellant is reinstated in service.