' SAIDUZZAMAN SIDDIQUI, J.---Leave was granted in the above appeal by a Bench of this Court against the order of learned Federal Service Tribunal dated 10-12-1995. Subsequently, leave was also granted in Civil Appeal No, 822 of 1996 against the order of learned Federal Service Tribunal dated 3-10-1995 on the basis of the order granting leave in the above appeal and it was further directed that both the appeals will be heard together. However, when we heard these appeals, we found that the points of law and facts arising in these two appeals are different and, therefore, we have separated both the appeals and they are being disposed of through two separate judgments.
2. The appellant in the above appeal, who was working as Stenographer in the Ministry of Foreign Affairs, Islamabad, was posted in the Embassy of Pakistan at Khartoum (Sudan). He joined his assignment at Khartoum in the Embassy of Pakistan with effect from 26-2-1991. On 20-6-1993, by a Memorandum No, Amb (Adorn.) 1992-93, the appellant was informed that the Ministry of Foreign Affairs, Islamabad, vide their Telex dated 15-6-1993 have ordered recalling of the appellant on the basis of no substitute and without allowing benefit of 6 days joining time. He was informed that he will be relieved of his duties in the afternoon of 11-7-1993 when he was required to proceed to Pakistan along with his family members the following day through Saudi Arabian Airline. He was further informed that the local Ministry of Foreign Affairs at Khartoum has been informed that the appellant will not be on the role of Pakistan Mission with effect from 12-7-1993. Two days thereafter, by another Memorandum dated 22-6-1993, the appellant was informed by the Third Secretary of the Embassy of Pakistan at Khartoum as follows: "Embassy of Pakistan Khartoum No, EPK-2/22/90, dated 22nd June, 1993 MEMORANDUM ' In continuation of the Ambassador's Letter No,Amb. Admn. 1992-93, dated 20-6-1993 the following documents are provided to you in order to complete all your pre-departure formalities:
(1) Note verbal requesting Ministry of Foreign Affairs, Khartoum for permission to sell your car.
(2) Note verbal in your favor for Saudi Embassy for obtaining visa which will be required during your transit in Jeddah.
(3) Note verbal to sell your house hold goods.
' You are advised once again to complete your pre-departure formalities to meet the dead line 11th July, 1993 stipulated in Ambassador's abovementioned letter.
(Sd.)
(Imran Ali Siddiqi)
Third Secretary ' Mr. Muhammad Ali."
3. The appellant was further informed on 3-7-1993 that he was required to leave Khartoum by Saudi Airline Flight No, SV 450 Y MONDAY 12th July Khartoum-Jeddah 0915-1150/SV 704 Y TUESDAY 13th July Jeddah-Karachi 0255-0900. The appellant was advised in that Office Order to surrender his diplomatic Identity Card, Check out and hand over Government accommodation/fixture and furniture to Rana Muhammad Yusuf, Accountant prior to departure, hand over Passport of his own and other family members to arrange confirm booking of the tickets to Islamabad. It is an admitted position that no ticket was purchased by the Mission for the flight which was scheduled for 12-7-1993 and instead the ticket was purchased by the Embassy for the appellant and his family members for 28-7-1993. It is also an admitted position that no seat was available in the Saudi Airline during the month of August, 1993 and that a confirm seat was arranged through the Saudi Airline for the appellant and his family members for 30th of August, 1993. It is also not denied that the appellant returned to Islamabad on 4-9-1993 and he reported for duty at the Foreign Office in the forenoon of 5-9-1993. After the appellant joined at the Foreign Ministry at Islamabad, the following Office Order was issued on 27-9-1993:-- "Consequence upon his transfer from the embassy of Pakistan, Khartoum, Mr. Muhammad Ali, Stenographer was relieved of his duties in the Mission on 1-8-1993 (A.N.) and reported for duty in the Ministry on 5-9-1993 (F.N.). The intervening period is regularised as under:--
(i) 2-8-1993 to 30-8-1993 Leave-cum-transfer (Ex-Pakistan) spent in Khartoum.
(ii) 31-8-1993 Transit from Khartoum to Jeddah.
(iii) 1-9-1993 to 3-9-1993 Leave-cum-transfer (Ex-Pakistan) spent at Jedda.
(iv) 4-9-1993 Transit from Jeddah to Islamabad.
' This issues with the approval of the competent Authority.
(Sd.)
(M. Mushtaq Bhatti)
Section Officer"
4. According to above office order issued by the Ministry, intervening period from 2-8-1993 to 30-8- 1993 was treated as leave-cum-transfer (Ex-Pakistan) spent at Khartoum, 31-8-1993 - Transit from Khartoum to Jeddah, 1-9-1993 to 3-9-1993--Leave-cum-transfer (Ex-Pakistan) spent at Jeddah and 4-9-1993-Transit from Jeddah to Islamabad. The appellant made a representation against the above office order on 13-11-1993, which was as follows:-- "To ' The Section Officer, Estt. (II-A) Section, ' Ministry of Foreign Affairs, ' Islamabad.
' Sir, ' Reference Ministry's Office Order No,Estt(II-A)7/6/82, dated 27th September, 1993 regarding regularization of intervening period on my transfer from the Embassy of Pakistan to Headquarters.
The Ministry's Office Order does not seem in conformity with Revised Leave Rules, 1980, para. 15(1) contained in the Ministry's Circular No,Rules/1/1/81, dated 3rd January, 1981, as in the Mission I never made any specific request for leave ex.:Pakistan. The said para. Is reproduced below:- 15(1) Leave ex-Pakistan: Leave ex-Pakistan may be granted on full pay to a civil servant who applies for such leave or who proceeds during leave or takes leave while posted abroad or is otherwise on duty abroad and makes specific request for this effect'.
2. In view of above, the decision contained in the above office order may kindly be reconsidered and revised office order issued as per specific rules and on the basis of my Joining Report, dated 5th September, 1993 as per following entitlements:--
(1) Relieved from duty vide Office No.EPK-2/22/90, dated 3rd July, 1993 and HOM's Memo Amb. Admn-1992-93, dated 20th June, 1993 and Memo. No.EPK-2/22/90, dated 22nd of 1993 (photo copies already provided).11th July, 1993 (A.N.) (Department from Khartoum on 12th July, 1993 and from Jeddah to Karachi on 13th July1993).
(2) Six days for preparation vide Serial No.52, page 101, Serial No. 53 page 102/103, Serial No.70 and Serial No.134(1(a) page 15.3 contained in Chapter 3 of Guidance for Mission Abroad.12--17th July, 1993.
(3)- Extended joining time as mysalary for June, 1993 and other related entitlements and air tickets were not provided upto 11th July, 1993 (12-00 hours).18th \July to 30 August, 1993.
(4) Depart Khartoum for Jeddah by additionally arranged flights as routine flights during August/September were fully booked.31st August, 1993.
(5) Forced halt at Jeddah to catch first available. P.I.A. Flight (operated on Saturday only) as required under Serial No.124, page 148, Serial Nos. 125, 126 and 127 pages 149/150 contained in Guidance for Mission Abroad.31st August to 3rd September, 1993.
(6) Depart Jeddah for Islamabad by P. I. A. 4th September, 1993.
3. The Mission in its Memo. No, EPK-2/22/90, dated 15th July, 1993 had termed my joining time (travelling time) unauthorised absence from duty' which the Ministry in its Memo. No, Estt. (II- A)-5/4/76 regarding my medical bills, has termed that period 'Unauthorized stay' which in other words becomes an offence on my part and is liable to a suitable disciplinary action.
4. Under rules, Joining time (Travelling) is reckoned official duty with all benefits within entitlement.
' In view of above it is requested to kindly regularize the intervening period in terms of specific rules and issue revised office and also take paras. 3 and 4 above into proper consideration.
' Dated 13th November, 1993.th Yours obediently, (Sd.)
(Muhammad Ali)
Stenographer Ministry of Foreign Affairs, Islamabad."
5. In response to the above representation of the appellant, the Ministry issued fresh office order dated 1-8-1995 in suppression of its earlier order dated 27-9-1993 which was to the following effect:-- "No, Estt.(IV)-5/4/76 Government of Pakistan Ministry of Foreign Affairs August 1, 1995.
OFFICE ORDER ' In suppression of Ministry's Office Order No, Estt.(II-A)-7/6/82, dated September 27, 1993, the intervening period of Mr. Muhammad Ali, Stenographer, on his transfer from the Embassy of Pakistan, Khartoum is regularised as under:-- 1-8-1993 Relieved from the Mission.
2-8-1993 to2-9-1993Leave without pay due to unauthorised absence.
3-9-1993 to 4-9-1993Transit.
5-9-1993 Reported for duty.
2. This issues with the approval of competent Authority.
(Sd.)
(Shireen A. Moiz.), .
Director (P-II)."
6. The appellant after exhausting departmental remedies, finally approached the learned Federal Service Tribunal but his appeal was dismissed through the impugned order dated 10-12-1995 against which leave was granted as follows:- The petitioner, a stenographer in the Ministry of Foreign Affairs, was posted in the Embassy of Pakistan, Khartoum (Sudan). He was relieved from duty on the afternoon of 1-8-1993 to report back at Islamabad. He, however, did not leave the station considering himself entitled to joining time and, therefore, he reported for duty at Islamabad on 5-9-1993. The petitioner's intervening period was regularized by the Ministry of Foreign Affairs vide office order dated 27-9-1993 but being dissatisfied with the said order, he made another representation to the Secretary, Ministry of Foreign Affairs on 26-12-1993 who revised the earlier office order and the period from 2-8-1993 to 2- 9-1993, which had been availed by the petitioner as joining time, was treated as 'leave without pay due to unauthorized absence.'
2 On appeal before the Federal Service Tribunal, it was held that the Secretary was empowered to revise the earlier order as it had not imposed any penalty under Government Servants (Efficiency and Discipline) Rules.
3. The petitioner, who argued his case in person, has placed reliance upon Chapter III of ESTACODE which relates to transfers and instructions at Serial No, 9, page 205, indicate that in ordinary circumstances, in case of transfer of Government servant from one station to another, three months' notice is to be given to him to enable him to make plans accordingly.
4. Leave is, therefore, granted to consider whether the view taken by the Tribunal while dismissing the petitioner's appeal was correct."
We have heard the appellant, who is appearing in person and Mr. Anwarul Hach Deputy Attorney- General on behalf of the Government.
7. The appellant contended that as it was the responsibility of the Mission at Khartoum to arrange his passage from Khartoum to Islamabad, the period spent by the appellant at Khartoum on account of non-availability of the passage to Islamabad, could not be treated as leave of any kind.
This period according to the appellant, was liable to be condoned as it was no fault of the appellant and that he was detained at Khartoum after having been relieved from his duties there.
The learned Deputy Attorney-General did not dispute that the appellant was entitled to 6 days joining time from the date he started his journey from Khartoum in normal circumstances and we do not find any special reason in the present case which would justify the curtailing or denying the normal journey period admissible under the rules to the appellant. From the facts stated above, it is quite clear that although the appellant was relieved from the duties on 11-7-1993 and he was asked to proceed to Islamabad on 12-7-1993 through Saudi Airline Flight but the Pakistani Mission at Khartoum failed to arrange the ticket for the appellant and his family for the said Flight. It is also on record that the Embassy at Khartoum on 12-7-1993 informed the appellant that he has not been relieved from duty as intimated earlier to him on 10-7-1993 and that he was required to attend the office as usual. The letter dated 24th July, 1993 written by the Pakistan Embassy to the Ministry of Foreign Affairs, Republic of Sudan, Khartoum, shows that the appellant was relieved of his duties from the Pakistani Mission at Khartoum on 1-8-1993 and a request was made, accordingly, to terminate his visa. It is on record that the tickets were purchased by the Pakistani Mission at Khartoum on 28-7-1993 and, therefore, the original itinerary prepared by the Mission at Khartoum for the departure of the appellant from Khartoum to Islamabad, became totally irrelevant. The Mission at Khartoum after having purchased the ticket on 28-7-1993 did not inform the appellant about the date of his departure from Sudan. However, it is admitted before us that no seats were available in the Saudi Airline, the only Airline operating between Sudan and Islamabad, during the month of August, 1993 and that it was only on 30-8-1993 that seats could be arranged for the appellant and his family through Saudi Airline. It is, therefore, quite clear that homeward journey of the appellant commenced from Khartoum on 30-8-1993 and as he was entitled to 6 days joining time under the Rules, he rightly reported for duty at the Foreign Office, Islamabad, on 5-9-1993.
Therefore, the office order dated 1-8-1995 issued by the Ministry of Foreign Affairs treating the period from 2-8-1993 to 2-9-1993 as leave without pay due to unauthorized absence of the appellant, was an arbitrary exercise of powers by the functionaries.
8. Before parting with the case, we are constraint to observe that the manner in which the Mission at Khartoum treated a regular employee of Foreign Office while posted in a foreign country, to say the least, was highly depreciable. The memorandum dated 20-6-1993 addressed to the appellant informing his recall to Islamabad without allowing him usual preparation time and even the normal joining time of 6 days admissible under the Rules, was not only unusual but was arbitrary exercise of discretion vested in the relevant authorities. The haste on the part of Pakistani Mission at Khartoum to inform the local Ministry of Foreign Affairs that the appellant will cease to be on the role of the Mission with effect from 12-7-1993 and what followed thereafter, is a classic example of the working of our Missions abroad. No wonder that ordinary Pakistani citizens living abroad are often heard complaining of indifference on the part of our Embassies to attend to their problems. It is high time that we seriously address the need for streamlining and improving the functioning of our Missions abroad. With these observations, the appeal is allowed and the order passed by the Service Tribunal is set aside. The period spent by the appellant, after he was relieved from the Mission at Khartoum on 1-8-1993 till he joined his post at Islamabad, will be treated as the period spent on duty.
' No order as to costs.