' ROSHAN ALI MANGI (MEMBER).---The appellant Dr.Muhammad Anwar was aggrieved by the office order dated 14th May, 1995, whereby he was imposed a major penalty of removal from service. He submitted departmental appeal on 7th June, 1995 to the Secretary, Ministry of Health against the said impugned order. But he was informed vide letter dated 10th July, 1995, that his appellate authority was the President of Pakistan, therefore, he should file the appeal before him through proper channel. Accordingly the appellant resubmitted his departmental appeal to the President of Pakistan on 5th August, 1995, within 30 days of the receipt of information from the Ministry of Health.
However, despite the expiry of 90 days he did not receive any reply. He has, therefore, filed the present appeal before the Tribunal.
2. The brief facts of the case as stated in the memo. Of the appeal are that, appellant Was appointed as a Medical Officer (BPS-17) in the Federal Government Services Hospital, Islamabad with effect from 5th February, 1984. The appellant married to one Sophia on 21-3-1986, whose parents were permanently settled in U.K. So on her insistance and persuasion, he took ex-Pakistan leave and went to U.K. For higher studies on 16-5-1987. During the period of his stay in U.K. Some family problems cropped up. In the meanwhile his wife also fell ill and did not desire to come back to Pakistan. Under the circumstances, the appellant decided to come back to Pakistan before the expiry of his leave. He actually came back and joined his service on 8th April, 1989.
3. The appellant again made a request for two years EOL Ex-Pakistan to attend his ailing wife i,e, with effect from 28-10-1989. The required leave was granted to him vide Federal Government Services Hospital's letter dated 29-10-1989. However, according to the appellant, his wife finally told him that she would not go back to Pakistan with him and tried to force him to leave the job in F.G.S..H. And permanently settle in England. The appellant, therefore, had no alternative, but to return to Pakistan. He came back to Pakistan and joined his service in August, 1991.
4. Once again the appellant, applied for EOL Ex-Pakistan for two years for twin purposes of solving his family problems and for completing his F.R.C.S., which leave was also granted to him vide letter dated 16th September, 1992 with effect from 30th September, 1992. At this time he wanted to do his F.R.C.S. From Saudi Arabia instead of U.K.
5. The leave of the appellant expired on 30th September, 1994. He was supposed to join his duty on the 1st October, 1994. However, the appellant requested again for extending his ex-Pakistan leave without pay, with effect from 1st October, 1994. He got recommendation on that leave application from a number of Politicians, prior to its submission to the Competent Authority. The Ministry of Health responded, by directing the appellant to join his duty not later than 20th November, 1994, failing which disciplinary action would be taken against him vide letter dated 6-11-1994. The appellant was served with the show-cause notice on 14th February, 1995, on the grounds of wilful absence from his duty. The appellant wrote back that, as he was to appear in his F.R.C.S. Examination from April to 4th May, 1995, therefore, he could not leave his hard-earned preparation for the examination in-between. However, he submitted his reply to the said show-cause notice vide letter dated 28-2-1995, stating therein that he could not resume duty on 1-10-1994, i,e, on the expiry of two years leave ex-Pakistan, due to illness of his wife, who was not fit to travel and that show-cause notice be withdrawn and the extension of two years ex-Pakistan leave be granted as already requested and that he would avail the opportunity of personal hearing on his return.
6. However according to the appellant instead of agreeing to the very genuine request for extension of leave to enable him to appear in his F.R.C.S., he was imposed major penalty of removal from service vide office order dated 14th May, 1995.
7. The learned counsel for the appellant pleaded that the appellant's request for extending his ex- Pakistan leave, was genuine, as he was doing his F.R.C.S. At his own expenses and not against any scholarship or training facility. This was not only beneficial to himself but was also in the best interest of Institution i,e, FGSH. And that the appellant had sent to the competent authority the date sheet and the card of examination showing that his FRCSED Examination in General Surgery was to take place from 26th April - 4th May, 1995. The ministry, therefore, ought to have considered the request sympathetically.
7-A. In this regard the learned counsel, invited our attention to two cases i,e, of Dr. Ghazala Batool Naqvi and Dr. Javed Ahmad. In these cases, he pointed out that extension of leave was allowed.
The learned counsel, therefore, argued that appellant, by refusing him extension of leave he was discriminated against.
8. He also brought out at bar the case of Dr. Stephen, who was also issued a show cause notice but the same was withdrawn and he was allowed to join his duty despite the refusal of Health Division to grant him extension of leave. But the same treatment was not meted out to the appellant, which clearly according to him amounted to discrimination.
9. The learned counsel further pleaded that the appellant was involved with the family problems and the police and Court cases, which has created multifarious difficulties and financial problems for him. Under the circumstances, there was no alternative for him but to leave U.K. Consequently he left for Saudi Arabia with a view to complete his studies for which purpose, he had taken two years' leave. This aspect might be considered sympathetically.
10. Concluding his arguments, the learned counsel pleaded that in any case, the appellant's case of overstayal for the purposes of F.R.C.S. Examination, could be considered under Rule 23 of the Revised Leave Rules, 1980, according to which the period of absence from 1-10-1994 to the date of issuing of show-cause notice on 14-2-1995, would comes to 3% months which could be adjusted against the future leave of the appellant.
11. The appeal, on the other hand has vehementally been resisted, by the respondent vide comments so filed on their behalf. It has been contended that the position submitted on behalf of the . Appellant was not correct. The factual position was that the appellant applied for grant of two years leave on account of illness of his wife and not for doing F.R.C.S. Neither he obtained such permission from authorities for doing F.R.C.S., nor did he intimate them about his .Studies in Saudi Arabia. Further that his request for extension in leave (Ex-Pakistan) was for the illness of his wife residing in UK which was rejected by competent authority, as it was not covered under the rules.
Moreover, he had already availed about six years leave, whereas .He worked for the Government only for a period of about 4 years. This was also intimated to his political recommendees, explaining .To them that the said extension was not within the competence of Health Division. Since the Ministry was not competent to allow further extension of the leave, hence, the appellant was directed to report for duty on the expiry of said leave, vide letter dated 13-10-1994. But the appellant did not pay any heed. Obviously he was served with show-cause notice on 14-2-1994, in accordance with the E&D Rules, 1973. Instead of making a reply to show-cause notice, the appellant again applied for extension in Ex-Pakistan leave for two years, on account of the illness of his wife.
Although his application was considered by the competent authority, nevertheless as it was not permissible under the rule it was regretted and he was directed vide letter dated 6th November, 1994, to join his duty not later than 20th November, 1994, failing which disciplinary action would be taken against him. However, he did not respond to that direction. Therefore, a summary for the Prime Minister was moved for imposing major penalty on the appellant of removal from service, as he was found guilty of misconduct in accordance with the rules. After the approval of the competent authority, he was removed from service on 14-5-1995.
'12. As regards the contention that Dr. Ghazala was granted further extension in leave has been denied. However, extension in leave to Dr. Javed Ahmad-II was granted for study for which he had submitted the requirements duly endorsed by the Embassy of Pakistan. Moreover, it was approved by Finance Division in relaxation of rules. As such the nature of leave was quite different from that of the appellant.
13. As regards the case of Dr. Stephen, it has been maintained that he joined his duty before removal from service. Hence his case was quite different from that of the appellant.
14. We have heard both the parties at length and have gone through the documents and appellant's record before us.
15. The appellant joined the Federal Government Services Hospital as a Medical Officer on 5th February, 1984. He got married with one Sophia on 21-3-1986. Soon after his marriage, the chain of actions started. It appears that the parents of the wife of the appellant were permanently settled in UK, therefore, his wife too wanted to settle there in UK. It seems this urge on the part of his wife, that he applied for the first time for ex-Pakistan leave for two years vide his application dated 8-3-1987 stating therein that he had some domestic problems, which he needed to solve simultaneously pursue his Post Graduation in the field of Audiology/ENT. This leave was granted to him vide Health Division's letter dated 30th April, '1987 with effect from 6-5-1987 to 17-4-1989. In this regard we give below the position of para. 9 of the Revised Leave Rules, 1980 to see how far, the appellant's present and future leave request was justified, and covered under the rules: "According to para. 9 of the Revised Leave Rules, 1980, extraordinary leave (without pay) can be granted up to the maximum period of five years at a time provided that the civil servant to whom such leave is granted has been in a continuous service for a period not less than 10 years, and in case a civil servant has not completed ten years of continuous service, then extraordinary leave without pay for a maximum period of two years can be granted at the discretion of the Head of his office."
16. The appellant on the expiry of leave, joined his duty on 18-4-1989. Again the appellant applied for ex-Pakistan leave on 27-6-1989 to attend his ailing wife at London i,e, soon after the pause of little less than three months. This time his request 'was not entertained and rejected vide Ministry of Health letter dated 26-7-1989. However, he managed to obtain such a leave through a political pressure vide Health Division's letter dated 27th August, 1989, wherein it was stated "Health Minister has been pleased to allow extra-ordinary leave (without pay) ex-Pakistan for two years from the date of availing of Dr. Muhammad Anwar." He availed the leave w,e,f, 28-8-1989.
17. We have given above the position of para. 9 according to which only two years extraordinary leave could be given to the civil servant at a time, whose continuous service is less than 10 years.
The appellant's total service in the Government Hospital is little more than four years. He already availed the ex-Pakistan leave (without pay) for two years, the further ex-Pakistan leave (without pay) for two years was not covered under the rules. The Ministry too was not competent - to grant such a leave. However, it was done, it seems, under political pressure.
18. The appellant returned and joined his duties on 9-9-1991, once again he submitted leave application on 1-9-1992 duly recommended by politicians, requesting therein to grant him extraordinary leave without pay (ex-Pakistan) for two years to enable him to join his family in UK and that he would also perform Umra, on way to London. This application does not contain anything, regarding his intention to undertake his studies, which the appellant claimed later on.
This leave too was granted to him vide Ministry of Health letter dated 16th September, 1992, i,e, w,e,f, 20th September, 1992 or from the date of availing to visit UK/Saudi Arabia, although like previous leave, this leave too was not covered under the rules. But pressure worked wonders. However, he availed the leave w,e,f, 30-9-1992.
19. Since the appellant had political power at his command, he left his office with effect from 1-10- 1992, without permission from the Medical Superintendent who reported such a thing to the Ministry of Health vide his letter dated 10-10-1992 and also requesting therein to take necessary action against the doctor. But nothing happened. On the contrary, the M.S. Was directed vide Ministry of Health letter dated 10th November, 1992 to obtain relinquishment report from the appellant and furnish to Ministry, which was done by the department vide letter dated 18-11-1992.
20. The appellant was to resume his duty after the expiry of leave, on the 1st October, 1994. He did not turn up but Moved yet another leave application duly recommended by a politician for the grant of two years of extraordinary (ex-Pakistan) leave without pay, on 5-4-1994; stating therein that his wife was seriously ill and unable to travel and that he was required to look after her and his two children. This leave application too does not mention if leave was required to do post graduate study, as claimed later on.
21. Since he did not join his duty after the expiry of leave, Medical Superintendent wrote to the Ministry of Health on 3-10-1994 that the appellant did not resume duty, he, therefore, be advised to report for duty immediately as the Hospital was facing great difficulties due to shortage of medical doctor.
22. In pursuant to Medical Superintendent's letter, the Ministry of Health sent a memorandum dated 13-10-1994, with the direction to report for duty, failing which disciplinary action would be initiated against him under the E&D Rules, 1973. Again the appellant was addressed a letter dated 6th November, 1994, to resume his duty immediately, but not later than 20th November, 1994, failing which action would be initiated against him under the prescribed rules.
23. The appellant instead of joining his duties, wrote back, insisting that, he should be granted further ex-Pakistan leave, without pay for the period of two years.
24. The record shows that on continuous pressure of the appellant, the Ministry of Health took up the case with Ministry of Finance, on 26th December, 1994 and requested them to grant the appellant extension in leave (Ex-Pakistan) for the period of two years with effect from 1-10-1994 as a special case and in relaxation of leave rules. The Finance Division responded vide letter dated 22nd January, 1995 advising Ministry of Health to submit a medical certificate of the appellant's wife duly endorsed by the Embassy, for their consideration.
25. In the meanwhile the appellant was served with the show-cause notice on 14th February, 1995 on the grounds that he failed to resume his duty on 1-10-1994 on the expiry of two years leave ex- Pakistan and that he failed to report for duty in spite of the notices issued to him vide Ministry memorandum dated 13-10-1994 and 6-11-1994, respectively.
26. He was directed in that show-cause notice to submit the reply within 14 days of the date of issue of that notice as to why the major penalty of dismissal from service under the E&D Rules, 1973, should not be imposed upon him. He was further made clarified in the said memo. That if no reply was made within the specified period, an action would be taken against him ex parte under E&D Rules, 1973.
27. The appellant responded this show-cause notice vide letter dated 28-2-1995, stating therein that he could not resume his duty on 1-10-1994, on the expiry of two years leave ex-Pakistan due to illness of his wife, who Was unfit to travel to Pakistan. Instead of indicating any date to resume duty, he requested in that letter to withdraw the show-cause notice served upon, and to grant him two years extension in his extraordinary leave without pay for which he had submitted his request on 18-9-1994. Anyhow his request for the extraordinary leave was not acceded to by the competent authority vide letter dated 20th March, 1995, and the appellant was informed accordingly.
28. Ultimately, the appellant was proceeded against and rightly ex parte and imposed major penalty of removal from service, under the relevant E&D Rules, 1973
29. The upshot of the above discussion is that, the extraordinary for two years, for the periods from 28-10-1989 to 9-9-1991 and from 1-10-1992 to 30-9-1994 respectively was not covered under the rules, what to talk about his request for further extension of period of two years. Under the rules only two years' extraordinary leave could be given to the appellant on his total service of about four years. However, he availed about six years ex-Pakistan leave, through a political influence. In view of the circumstances the demand for grant of extension for further leave was unjustified.
30. The appellant did not resume his duty despite he was twice directed. This amounts to misconduct. Although the learned counsel for the appellant pleaded that the extension so requested by the appellant was for doing F.R.C.S., but the record shows and has been pointed above at relevant places, that all his request was for looking after of his wife, which we find unfounded. The learned counsel has also pleaded that his financial problems had involved him mentally. But he did not mention such problems, to have engaged him in his reply to show-cause notice. The learned counsel has claimed that appellant was discriminated against as in the similar case of Dr. Ghagala, Dr. Javid and Dr. Stephen were given relief. However, the record shows that their cases were distinguishable from that of the appellant.
31. For the reasons recorded above the appeal having no substance is dismissed with no order as to costs. Parties be informed.