' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---The appellant has filed this appeal under section 4 of Sindh Service Tribunals Act, 1973, challenging the impugned order, dated 24-10-2000 passed by respondent No,2, dismissing the appellant from service on account of his long absence from duties.
2. Relevant facts for the purpose of disposal of this appeal are that the appellant while posted as Resident Medical Officer, Sindh Employees Social Security Institution, Landhi Hospital, Karachi (hereinafter referred to as 'SESSI') was granted 30 days' leave w,e,f, 20-9-1997 by Medical Superintendent, SESSI, Landhi Hospital, Karachi. During leave period he claimed to have suffered from unstable Angina (Heart Disease) and applied for extension of leave and also sent medical certificates on 18-10-1997. He repeated his request for extension of leave vide his application dated 18-2-1998. His request was turned down and he was required to resume duties vide letters dated 22-4-1998 and 4-3-1999. Appellant replied letter dated 4-3-1999, and instead of resuming duties, he requested for extension of leave on 16-3-1999, which too was rejected. He vide letter dated 24- 3-1999 was again directed to resume his duties. In reply thereto, appellant once again requested respondent No,4 for extension of leave and stated that due to health problem he cannot undertake journey from Jacobabad to Karachi. A final call up notice dated 9-3-2000 was given to appellant to resume duties within 7 days but the appellant through his reply dated 15-3-2000 showed his inability to resume duties. As a last resort, he, vide his application dated 10-6-2000 opted for retirement on medical grounds. Meanwhile, a final show-cause notice stood already published in daily 'JANG' dated 7-6-2000 requiring him to resume his duties within 7 days so also to show-cause notice why penal action as required by law should not be taken against him. Appellant was, subsequently, served with final show-cause notice dated 16-9-2000 which was replied by him on 22-9-2000. Ultimately, vide impugned order dated 24-10-2000 appellant was awarded major penalty of dismissal from service. He preferred departmental appeal to respondent No,1 on 7-11- 2000 and on getting no response within stipulated period of 90 days, has preferred the instant appeal on 2-3-2001.
3. Respondents Nos.2, 3 and 4 in their joint written statement have denied the illness of the appellant and have asserted that the medical certificates produced by appellant are false and fabricated. They have stated that appellant was eager to work at Jacobabad/Shikarpur at SESSI's Dispensaries within Sukkur circle and through every corner he shrived head to get himself transferred from Karachi so much so that using political influence he moved application to Governor for transfer to Jacobabad/Shikarpur. Further, it is stated that in the year, 1994, appellant on his application, was transferred to Shikarpur and then by another order, dated 13-3-1997 he was transferred back to Landhi Hospital. He however, instead of resuming his duties at Karachi unauthorisedly remained absent from duties from 24-3-1997 to 24-4-1997 for which he was awarded minor penalty of "censure vide order dated 26-7-1997. It is also stated that SESSI is a statutory body and that the relationship between SESSI and the appellant is that of Master and Servant.
4. Respondent No,1 chose to remain absent.
5. Mr. Ghulam Sarwar Chandio, learned counsel for the appellant has contended that impugned order dismissing appellant from service is illegal, ab initio null and void so also it is defective for the reason that it has been passed by the Authorized Officer instead of Authority which too with retrospective effect. He submitted that under law leave on medical grounds cannot be refused and that appellant being seriously ill submitted valid medical certificates from private practitioner which could not be unjustifiably ignored. At the most, he added, the same could have been referred by Department for second option. He argued that neither appellant was directed to appear before Medical Board nor any enquiry was conducted before imposing upon him major penalty of dismissal from service. He next contended that appellant due to his ill health was much depressed and had opted for retirement on medical grounds but for the reasons best known to the respondents his request for retirement was also not considered. He requested that the impugned order may be set aside and the appellant be reinstated in service with all back and consequential benefits. In support of his contentions he has relied upon case-law reported in, (1) 1985 PLC (C.S.)
921, (2) 1985 PLC (C.S.) 928, (3) 1985 PLC (C.S.) 564, (4) 1985 SCMR 1178 and (6) 1996 SCMR 201.
6. On the other hand, Mr. Khalid Habibullah, learned counsel for respondents Nos.2 to 4 has stated that SESSI is a statutory body established by the Government of Sindh by an Ordinance promulgated in the year, 1965 and that there are no statutory service rules for regulating the service of employees, therefore, relationship between the appellant and SESSI is that of Master and Servant. He, next, argued that appellant used his political influence upon higher authorities to get himself transferred from Karachi and that he has also moved an application to Governor of Sindh.
He submitted that appellant is wilful absentee from duty knowing well that his application for extension of leave stood rejected and he was directed to resume his duties. Thus he has rightly been awarded major penalty of dismissal from service. So far retirement application of appellant on medical grounds, he submitted that there is a prescribed procedure for dealing with such cases and since the appellant failed to appear before the Medical Board his case for retirement was not processed, for which the appellant is at fault and he cannot blame respondent. He contended that Commissioner SESSI being an Authority has passed the impugned order as such no illegality has been committed. As regards dismissal with retrospective effect, he contended that the appellant all along remained absent from this duties w,e,f, October, 1997 till October, 2000 when he was dismissed from service as such he was rightly dismissed from the date of his unauthorized absence and there is no illegality in that. He submitted that there being no merit in the appeal the same may be dismissed with costs. He has relied upon case-law reported in, (1) 1991 SCMR 802 (2)
PLD 1994 SC 222, and (3) 1998 SCMR 1890.
7. We have given our anxious consideration to the submissions made before us and have minutely examined the material available before us. We have also gone through the case law cited at the bar.
8. Contention of learned counsel for SESSI that the relationship between appellant and SESSI is that of Master and Servant, has no force for the simple reason that every employee drawing salary or wages from public exchequer is in service of Pakistan. Reference may be made to an unreported case of Aijaz Ali and 78 others v. Secretary, Ministry of Oil and Petroleum and others, wherein a Division Bench of Federal Service Tribunal has observed that:-- "We are of the considered opinion that this Tribunal does not take judicial notice of the law of master and servant and we are of the firm view that employment in this Islamic Republic of Pakistan, in Government, in Corporations, in public or private sectors are governed by Laws even to the extent that domestic employment is also governed by Law of Contract. We have also held that in this Islamic Republic of Pakistan, there is no master and, therefore, there can be no servant of the master in this country. Every person drawing salary or wages from public exchequer is in service of State of Pakistan."
9. So far plea of learned counsel for the appellant that impugned order has been passed by the Authorized Officer and not the Authority, it may be stated that perusal of the impugned order clearly shows that the order dismissing the appellant from service has been passed by the Commissioner SESSI who admittedly is Authority and competent to pass such an order. The said order was, however, communicated to the appellant by the Authorized Officer. There is thus no illegality committed by the Authority.
10. Coming to the merits of the case, in that we find that the appellant was granted 30 days' earned leave w,e,f, 20-9-1997 on the ground of illness of his mother and exams of children. He applied a number of times for extensions of leave on medical grounds on account of his own ailment but it was refused, requiring him every time to resume his duties in which admittedly he failed till his dismissal from service. He in fact remained absent for complete 3 years. Perusal of memo. Of appeal and the documents attached therewith indicates that the appellant had first applied for extension of leave on 18-10-1997 for 2 months and for second time on 17-2-1998. According to appellant's own version he was informed by respondent No,4 vide letter dated 22-4-1998 that his request for extension of leave from 19-10-1997 onwards was not approved by the competent authority. He was then directed to resume duties failing which disciplinary action E & D Rules would be taken against him. Appellant instead of resuming duties simply informed respondent No,4 to treat him on medical leave. From this it also follows that after 18-2-1998 he had never applied for extension of leave. He was repeatedly asked through letters, notices, final call-up notices to resume his duties but he failed to respond to all these directions. Finally, a show cause notice was published in daily "JANG" dated 7-6-2000 whereby Medical Advisor/Authorized Officer directed him to show-cause as to why he should not be dismissed from service. On receipt of his reply finding the same unsatisfactory, he was then served with final show-cause notice dated 16-9-2000 which too was simply replied by the appellant. He, however, did not bother to resume his duties.
Ultimately, the appellant was dismissed from service vide impugned order. The appellant's contention that before taking punitive action against him no opportunity of personal hearing was given to him, is devoid of force for the simple reason that he did not ask for the same. In reply to final show-cause notice, he stated that he is not in a position to perform long journey for which he has been prohibited by his physician. Hence he is unable to attend the same (personal hearing).
He had remained absent for complete three years and even had failed to appear before the Medical Board of SESSI, therefore, question of providing him opportunity of personal hearing by the Department does not arise.
11. As far option for retirement from service given by the appellant is concerned it may be stated that there is a settled procedure provided under SESSI Pension and Gratuity Regulations, 1986, whereunder a permanent Medical Board has been constituted comprising of one Chairman and 3 Members. The Medical Board after examining the employee shall issue a medical certificate in the prescribed form which will then be examined by Director (Admn.) who, then, after necessary formalities to order of retirement was to be passed. Since the appellant failed to appear before the Medical Board, question' of acceptance of his option for retirement by the Department does not arise.
12. Respondents have stated that appellant was eager to get himself transferred to Jacobabad/Shikarpur and for this he used his political influence and on his failure to get him transferred to his place of choice he created false ground of illness. In this regard, a chit of Dr. Muhammad Ibrahim Jatoi the then M.P.A. Written to Minister, Labour Department, Sindh has been produced by the respondents which show that appellant had used political influence for his transfer to SESSI Sukkur/Jacobabad. It is clearly written on this chit that appellant be posted at Jacobabad. On this a summary was floated to Minister for Labour that in view of shortage of Doctors the appellant's transfer be deferred till sufficient number of R.M.O's. Are made available.
This summary was approved on 4-8-1997. Immediately, thereafter on 15-9-1997 appellant applied for 30 days, earned leave on the ground of illness of his mother and examination of his children which was granted to him on 17-9-1997. The appellant then again submitted application for transfer addressed to Chairman, SESSI on which there is a note of Minister for Labour whereby Commissioner SESSI was asked to give his comments. Once again on 7-4-1999, the appellant submitted another application to the Governor of Sindh through Consultant of Governor for his transfer. All this not only show how eager the appellant was for his transfer from Karachi to Shikarpur/Jacobabad, but it sufficiently establishes that he is guilty of using political influence and having failed in his moves he ventured to, obtain 30 days, leave on the ground of illness of his mother and that the exams of his children and then remained absent for complete three years on the ground of his own illness.
13. The pleas of the appellant that no enquiry with regard to his ailment was conducted we may state that in view duties for complete 3 years there was no necessity of holding of regular enquiry.
It is settled law that unauthorized absence of employee from duty for several years amounts to misconduct. Further, he could not claim leave as a matter of right and the respondents had every justification for refusing to grant his application.
14. As regards contention that impugned order has been passed with retrospective effect as such the same is illegal, we may refer here the case of WAPDA v. Shah Illahi (1998 SCMR 1890), where in it has been held that:-- 'Indeed, it is a well-established proposition of law that an executive order cannot operate retrospectively but the above principle is not applicable in a case in which an employee is processed for misconduct on the ground of unauthorised absence from duty. In such a case, the employer will be entitled to dismiss or remove or terminate the services of the employees concerned with effect from the date of unauthorized absence of the, employee. In such a case, the employee cannot be treated on duty during the period when he remains absent unauthorizedly."
In the instant case also the position is identical. Appellant has been dismissed from service from the date of his proved unauthorized absence thus no F illegality has been committed by the respondents.
15. For the aforesaid reasons and the circumstances we find no merit in this appeal, which is hereby dismissed, leaving the parties to bear their own costs.