' MUHAMMAD AYUB KHAN (MEMBER).---The appellant, Mr. Mumtaz Ali Khan, Ex-Senior Design Engineer, Heavy Mechanical Complex Ltd., being aggrieved by order, dated 10-4-1995, whereby he was not only dismissed from service on a charge of unauthorised absence from duty with effect from 18-10-1994 till date but his resignation from service was also rejected, feeling aggrieved he preferred a departmental appeal on 18-2-1997, which was rejected by order, dated 5-5-1997 and hence the present appeal under section 4 of the Service Tribunals Act, 1973, was filed on 3-6-1997.
2. A perusal of the appeal indicates that the appellant joined under the respondents as Assistant Manager Technical on 20-7-1982. He was not considered for promotion as Manager despite rendering more than 13 years service under the respondents and having been disappointed from conduct of the respondents perforce tendered resignation, dated 19-10-1994 (as per his allegation) to be accepted with effect from 22-10-1994, from the reason that it was no longer possible for him to serve under the respondents.
3. We have heard learned counsel for the parties for and against the appeal besides perusing the record.
4. According to rules, regulations and office procedure, a civil servant requiring leave is supposed to apply formally for it and as a matter of principle he cannot and should not absent himself from office prior to sanction of his leave. Mere filing of an application for leave ipso facto cannot be construed a sanction of the leave. Prospective presumption have no base legally. A civil servant while leaving his headquarter/office can do so with prior approval of the competent authority for avoiding incurance of subsequent complications. It is an established principle deeply embeded in the rules and generally practised in all offices.
5. In the instant case, the appellant was present in his office on 17-10-1994 and his immediate boss had advised him in the afternoon of this date:-- "To visit Assembly Shop on 18-10-1994 to oversee assembly of Asphalt Plant and remedy any discrepancies and problems, being faced during the assembly work, as the plant is to be completed on priority."
' He neither attended to the important assignment entrusted on 17-10-1994 but on this date in the evening he had left for Peshawar without giving an application for grant of leave or an application for permission to leave the headquarter. A subordinate cannot assume the role of a boss for the reason that. a subordinate remains always a subordinate and in routine boss never refuses genuine requests of his subordinates. One fails to understand as to why the appellant did not take into confidence the administration/his immediate boss the reason for this is obvious, i,e, unauthorised absence from duty.
6. Scrutiny of the tile indicates that the appellant, Mumtaz Ali Khan, as per "Out-Patient Door", got yearly chit No,21345, on 18-10-1994, nature of disease "back-ache" but Dr. M. Azam, M.B.,B.S., FCPSI, T.M.O. Lady Reading Hospital, Peshawar, issues and puts 18-11-1994 date under his signatures on the prescription. He was advised (4) days bed rest. Another photostat certificate (Page 7 of file) containing particulars of Mumtaz Ali Khan, No,114289, dated 22-11-1994, is available bearing stamp of "Incharge Casualty Deptt. Hayat Shaheed Teaching Hospital Peshawar", but not legible is of no use. It is not clear from the record when these certificates were received in the respondents' office.
Anyhow, the moment on its receipt by the respondent, the administration immediately advised/directed him to get himself medically examined from Hospital of the administration as required under the rules for second medical opinion but despite issuance of letters to him he did not care to attend for second medical opinion. The appellant on his recorded address was immediately informed by telegram, dated 1-11-1994, with reference to appellant's application, dated 23-10-1994:-- "Leave not sanctioned. Resume duty at once. In case of sickness report to Chief Medical Officer, H.E.
Medical Centre, Lana for medical check up immediately."
' The administration when failed to get the appellant to attend to his office, perforce, issued him a charge sheet, dated 5-12-1994 for his unauthorised absence from duty but no response from the appellant was received. It was clearly mentioned in the charge-sheet to explain as to why disciplinary action should not be taken against him for his intentional absence from duty with effect from 18-10-1994. The Inquiry Officer was appointed who conducted all the legal formalities so much so that an advertisement in Daily Jang, Rawalpindi, dated 20-2-1995 was published but this also could not attract him to attend the office. It is to observe that all the correspondence was made with him through his official recorded address but with no effect,.
7. Factum of absence from duty.---In order to assess the factum of illness of the appellant and his absence from duty, there are certain points and documents which will clear this point and in this respect:-- "(i) The first document, available on the file, is Vakalatnama given by the appellant to his Advocate, namely Sardar Shaukat Hayat, Advocate, Peshawar, which is undated even year has not been indicated; "
"(ii) The second document is his application for resignation from service, photostat of which is available at page 11 (Annex-D) of the file. This application was drafted on 19-10-1994: signed by the appellant on 20-11-1994 and diarized on 4-12-1994 as is evident from DD-251 of the Management."
(iii) "Thirdly that not a single letter of the respondent was responded by the appellant, sent to him as his usual last known/recorded address;"
(iv) "Fourthly the rejoinder (3-Pages), dated 20-8-1997 does not contain genuine signature of the appellant, but of course, that his counsel has rightly signed it. In this respect the signature of the appellant appearing thereon differs in material particulars when compared with his approved signatures available on the file and at the end of this document; "
(v) "Fifthly the appellant in the departmental appeal, dated 18-12-1997 has changed his address and indicated that "Mumtaz Ali Khan, C/o Abdul Rauf Shop No,A-3, Akhtar Market, Jehangirpura Peshawar, Tele: 0521- 247709' which is quite different from his record address. It can be inferred from these documents that he consciously tried to conceal his whereabouts."
"In the same series it is further to observe that on the date of hearing and after close of the arguments, one person accompanied, from the court-room, the appellant's counsel, the person was called in through Court Orderly and when questioned about his identity, he stated his name, Abdul Rauf, father-in-law of the appellant and brother-in-law for the reason that he had two wives and when further questioned about the whereabouts of the appellant, he stated that he was residing at Hayatabad, Peshawar, but the respondents informed that actually the appellant is serving at Dubai."
' Keeping in view the aforesaid facts, the appellant is not available in Pakistan, he is presumed to reside to be abroad and that too in connection with service. The proper course opened to the appellant was that he should have got himself released from the Authority and then should have gone abroad for service but he appears to have, taken the law in his own hand and thereby absented himself from service of the respondents which he could not do so under the law. It is a height of misconduct and in violation of service agreement with the administration/respondents.
None can he allowed to demonstrate like that legally.
8. The Superior Courts have taken a serious view of wilful .Absence from duty by subordinates. In this respect reliance is placed on 1998 SCM R 477 and 540. The relevant portions of which are reproduced below:- ' "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."
(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 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."
' There is another judgment contained in 1984 PLC (CS) 1073 which is crystal clear on wilful absence from duty.
9. The administration appears to have suffered a lot financially and administratively. Section 35-A, Civil Procedure Code, 1908 has been amended by the Civil Law Reforms Act, 1994 whereby the earlier special cost of Rs,5,000 has been enhanced to Rs,25,000.
10. Pursuant to the aforesaid discussion, this appeal fails and is hereby dismissed with special costs of Rs,10,000 (Rupees Ten thousand only) due to contumacious conduct demonstrated by the appellant and to compensate the respondents to some extent.