' MUHAMMAD AYUB KHAN (MEMBER).---Mr. Javed Khan, Ex-Armature Winder, appointed as such in the office of the GE (Air) AHQ, Peshawar, by order, dated 29-1-1981 but was subsequently transferred to G.E. (Army), Peshawar on 28-10-1989 and by the time of his removal from service reportedly he had completed about seventeen years' service. According to the Administration it is a case of wilful absence from duty whereas the appellant holds a contrary view to it.
2. It is alleged in the appeal at para. 3 that one person was murdered in his village for which the appellant and his real uncle were suspected, his opponents were looking for an opportune time to remove them from the scene in relations and for this reason the appellant left his native village and started living in a Government residential accommodation situated at anti-Malaria Colony, Peshawar Cantt: and as such the appellant was left with no alternative except to say good-bye to Peshawar and shifted to tribal territory for seeking shelter over there and, therefore, before leaving for a tribal territory he submitted an application of one year's earned leave with effect from 29-6- 1996 "but the same seems to have been misplaced or not considered by the authorities". It is further alleged that his uncle was later on murdered by their enemies and F.I.R. No,300, dated 18-4-1997 under sections 302/324/34, P.P.C. Was got' registered at Police Station University Town, Peshawar, and thereafter the culprits went into hiding and the appellant returned to his official Government residence, referred to above, where he received letter, dated 22-7-1997 vide Annexure 'C' at page 10 of the file whereby he was directed to report to EIC Section of HQ DW&CE(A) GHQ, RWP on 24-7-1997 at 10.00 hrs. And also was given the impugned order, dated 25-7-1997 (Annex. 'D') by which he was removed from service with effect from 24-7-1997.
3. Feeling aggrieved by the impugned order he preferred a departmental appeal, dated 18-8-1997 rejected on 15-10-1997 and thereafter he filed the present service appeal in this Tribunal on 18-11- 1997 which apparently is within time.
4. A careful perusal of the appeal reveals that the appellant being not available at his given address was not served personally and according to the repeated reports on the registered envelopes vide Annexures 'I' and 'J' at pages 17 and 18 of the file, he was reportedly not available and according to Annexure 'J' the report is 'refusal' to receive the envelope. An objection has been raised repeatedly in the appeal that the appellant was not .Informed or served with any notice and at para.(j) under GROUNDS OF APPEAL it has been indicated:-- "(j) That Enquiry Officer has not bothered to discover the reason of the appellant's absence. Not a single statement has been recorded in this respect."
A Government/Civil Servant, under the law, is not as free as he considers himself to be so much so that he is required to leave the Headquarter with prior permission of the Competent Authority and in case of grant of leave he must get the leave sanctioned from the Competent Authority and in that event alone he can proceed on leave or in the alternative with his permission after taking him into confidence and formally filing an application for leave. When a civil servant without permission of the competent Authority and getting the leave sanctioned, if found absent will be doing so at his own risk. It is a basic requirement of law which now a days is being grossly misused so much so that Government Servants do not bother to get the leave sanctioned and then proceed on leave.
Such conduct renderes the Government/Civil servant thereby to disciplinary proceedings.
THE ENMITY AND CRIMINAL LITIGATION FACTOR
5. It is alleged that the appellant had developed enmity in his village and due to fear of being harmed at the hands of his enemies he shifted from his village to Peshawar and later on to the tribal territory. He appears to have twisted the matter for the obvious reason that there is nothing forthcoming on the file in the form of application that he developed enmity in the village with whom and since when and, secondly, the appellant admittedly had absented himself from office/duty on 29-6-1996 whereas his reported/alleged uncle was killed on 18-4-1997 as per the F.I.R. Of even date. The F.I.R. Does not show relations between the appellant and the deceased and by the time of the occurrence he was already absent from duty with effect from 29-6-1996. It is generally believed and seen in routine that labour force specially technician and craftmen go abroad in connection with seeking fortunes specially in the Middle East where prospects of earning are comparatively higher and encouraging and as per practice many incumbents apply for going abroad after getting formal permission of the Competent Authority whereas others go abroad with permission. It has also been seen from disposal of the cases that civil servant having gone on Earned Leave, say on a month or two, later on applied for grant of leave for two years and above. It is too much on part of the civil servant that as a civil servant he earns abroad while still holding the post in Pakistan. Such like events are height of misconduct.
6. Now reverting to the present case the appellant neither applied for any sort of leave or created any understanding with the Management but slipped away from service and thereby absented himself for a considerable period of more than one year i,e,. From 29-6-1996 to that of removal from service on 24-7-1997. As he was not available, therefore, the Management was not supposed to contact him. He appears to have taken law in his own hands. In this respect reliance is placed on two judgments of the Honourable Supreme Court of Pakistan. The relevant portions of which are reproduced below for ready reference and convenience sake:-- ' 1998 SCM R 477 "(4) The learned counsel for the petitioner was unable to show that the alleged illness of the petitioner during the relevant time was of such a nature that he was prevented from communication with others for informing the Department regarding it. The petitioner 'has been rightly found to be guilty of unauthorised and wilful absence from duty after thorough scrutiny of the material on record. Notwithstanding that, the Tribunal took a lenient view by modifying the penalty of dismissal into that of removal from service, which calls for no interference. Leave is, therefore, refused." ' and ' 1998 SCM R 540 "(5) This contention is not tenable.--The learned counsel for the petitioner has .Not been able to explain the long absence of the' petitioner for about three years. Thus, the charge is proved on the face of the record. The petitioner has also not been able to show cause even to us for his long absence from duty. Therefore, even the holding of inquiry would not have made any difference. It may, however, be noted that, in the present case, the petitioner has just been discharged from service. No stigma of any sort, whatsoever, has been attached. He has neither been dismissed nor removed from service. The principle of 'audi alteram partem' would not be attracted to the facts of this case."
7. Scrutiny of the file further reveals that the Management did not leave any stone unturned in location of the appellant and perforce when its c efforts proved futile, had to order removal of the appellant from service which is quite just, legal and proper. There was no need of conduct of formal enquiry due to wilful absence of the appellant for a considerable period of more than a year. The conduct demonstrated by the appellant appears to be contumacious and unauthorised and is deprecated. A futile attempt appears to have been made purely on a lame excuse of enmity in the village. Had it been so, the appellant could seek sympathy of the Management in getting proper leave but instead of adopting the proper and legal course, he took the law in his own hands and now it does not suit him to say that the Management did not bother to find out reasons for absence of the appellant from duty. The onus of proof lies on him and not the Management.
8. Pursuant to what has been stated above, this appeal fails being totally unwarranted and is hereby dismissed with special costs of Rs,6,000 (Rupees Six Thousand only) under the amended section 35-A, of the 1908.