' ROSHAN MANGI (MEMBER).---Having been aggrieved by Office Order dated 18-10-1995, whereby the appellant was removed from the service on the grounds of remaining wilfully absent from his duties, against which he submitted departmental appeal dated Nil which was rejected by respondent No, 1 vide letter dated 29-1-1996, the appellant has filed this appeal before the Service Tribunal with the prayer that his appeal may be accepted and the impugned order be set aside and he may be re-instated in the service with all back benefits.
2. The brief facts of the appeal, as stated in the memo. Of appeal are that while working as Stenotypist in the Kashmir Affairs and Northern Affairs Division, the appellant submitted leave application to attend his ailing mother for the period of two years, however, he was allowed leave of four months only with effect from 16-4-1994.
3. It is stated since he could not invoke any response of the department up to 5-9-1994 and was continuously receiving the pay he presumed that the leave so requested must have been granted by the department. Under the circumstances, he thought he could not be treated absent. Later on, he submitted two other applications for extension of leave but he did not get any response from the office nor any kind of notice, according to him, was issued to him from his office. Since the leave applied for was due to him, he presumed that the same had been accepted.
4. He was issued show-cause notice on 7-5-1995 to which he made a reply on 23-5-1995. He moved a departmental appeal to the Secretary, Kashmir Affairs and Northern Affairs Division, dated Nil, which was rejected on 29-1-1996. Ultimately, the appellant was removed from the service vide letter dated 18-10-1995.
5. Raja Muhammad Asghar Khan, Advocate appeared for the appellant whereas respondent side was represented by Mr. Javed Ahmed, Section Officer, KANA Division and Mr. Sabir Ali, Joint Estate Officer.
6. The learned counsel for the appellant pleaded that the appellant's departmental appeal was rejected without assigning any reasons which is contrary to the judgment of the Supreme Court reported in 1991 SCM R 2330. He further pleaded that as per Civil Servants (Appeal) Rules, 1977, it is obligatory for the departmental appellate authority to give reasons while disposing of the departmental appeal. As such the order dated 29-1-1996, was hit by the provisions of Appeal Rules, 1977, and hence was liable to be set aside on this ground alone.
' 6-A. He was also of the opinion that the impugned order was not issued by the competent Authority, as it contained the signature of the Section Officer who was not competent to issue such an order.
7. It was further pleaded that the appellant having the service for 16 years with unblemished record needed to be treated sympathetically. The learned counsel informed the Bar that an arrangement was made between the appellant and the Joint Secretary of the KANA Division to the effect that if the appellant deposited the balance of house building advance, he would be allowed five years extraordinary leave with effect from 9-4-1995. However, instead of observing the terms of agreement, he was issued show-cause notice.
8. Lastly, the learned counsel for the appellant pleaded that the punishment of removal from the service was harsh, therefore, deems to be leniently dealt with.
' 8-A. The respondent-department filed their objections whereby the appeal has been vehemently resisted. It has been rebutted if at all the appellant was regular and not in the habit of obtaining leave prior to the formal sanction, it has been contended that the appellant on the contrary had developed regular tendency of availing self-granting leave and did not bother to improve his proficiency. It was because of that reason that he was given adverse remarks in his A.C.Rs. For the years 1986, 1987, 1989 and 1990. These adverse remarks were communicated to the appellant vide Ministry's letter dated 22-3-1989, 24-6-1990 and 26-5-1991 respectively.
9. His statement that he needed leave for the illness of his mother has also been rebutted. It has been pointed out that the application submitted by the appellant indicated that he required leave to look after the construction work of his brother's house. On this the appellant left the office without obtaining the formal sanction of leave and remained absent. It was contended that as per Government instructions, the Government servant is required to continue attending his duties till the leave applied for is formally sanctioned and granted. The appellant after submitting application has been leaving the office on the presumption that the leave has been granted to him. This attitude of the appellant was contrary to the Government instructions as such tentamounts to misconduct on the part of Government servant.
10. It was informed at Bar that the appellant had applied for leave and left office with effect from 16-4-1994, thereafter, he applied for extension vide his application dated 13-10-1994. Again he made another application for extension up to 31-12-1994. Ultimately, he joined his duties with effect from 27-2-1995. All this leave request was not sanctioned by the Government formally.
11. The appellant was directed vide O.M. Dated 5-9-1994 and 19-9-1994 to report for duty at once and to explain the reasons of his absence. He was also telegraphically directed to report for duty but failed to comply with these directions. Therefore, show-cause notice was issued to him to which he made a reply but that was found unsatisfactory, therefore, he was removed from the service under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973.
12. We have heard the learned counsel for the appellant at length as well as gone through the preliminary objections filed by the respondents. We find that the appellant has been enjoying leave without obtaining prior permission/formal sanction by the respondent. His leave application placed on the record shows that his initial request was for the grant of two years' leave to look after the construction work of house of his brother. The memo of the appeal on the contrary shows that his request was to look after his ailing mother. We did not find any sanctioned letter on the record or produced by the appellant at Bar. The request by the appellant to extend leave further was also without any proper sanction. From this it becomes clear that he remained absent from the duty without obtaining the formal sanction by the competent Authority as required under the law. In this regard, the relevant extract of ESTACODE given at Serial. No, 11, page 721 is reproduced below:-- "They must wait for sanction of leave and should not leave the place of their duty before the leave applied for is actually granted by the competent Authority. Non-compliance of these instructions might warrant action on account of misconduct under the relevant rules."
13. In view of the above rules position, we are of the opinion that he violated the rules as such the action taken by the respondent-department was in order. He, therefore, was rightly proceeded against under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. We also found from the record that his A.C.Rs. Contained the adverse remarks, as such his claim that he has unblemished record is also not correct.
14. In the result we find ourselves unable to intervene into the action already taken by the department. Under the circumstances, appeal having no merit is dismissed with costs.
15. Status quo already granted on 14-2-1996 is vacated.
16. Parties be informed.