' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---The Appellant had been serving Respondents Pakistan Railways for the last 20 years, lastly as S.S Fitter at Loco Shed, Rohri, under the Respondent No,3. He was served with a show-cause notice dated 18-4-2002 for imposing on him major penalty of dismissal from service for having absented himself from duty w,e,f, 20-2-2002 unauthorized without any intimation or sufficient cause, amounting to misconduct and breach of discipline, and for having ceased to be an efficient employee.
2. The Appellant replied the show-cause notice but, thereafter, he was dismissed from service vide order dated 14-5-2002 passed by the Respondent No,2. He filed departmental appeal dated 21-5- 2002 but it was rejected vide order dated 7-9-2002.
3. Being aggrieved by and dissatisfied with the order of his dismissal from service, the Appellant filed the appeal before this Tribunal under section 4 of the Service Tribunals Act of 1973 praying to set aside the dismissal order passed by the respondent No,2 and to reinstate him with full back- benefits.
4. The Respondents filed the written comments.
5. We have heard the learned counsel for the parties and perused the record.
6. On the basis of averments, made in the memo. Of appeal and documents filed therewith, the learned counsel for the Appellant contended that due to adverse domestic affairs the Appellant has sought premature retirement from the Respondents w,e,f, 15-2-2002 through his notice dated 8-10-2001, but, it was alleged, the Respondents did not process his application for premature retirement; that due to the sickness of his wife the Appellant applied for casual leave for six days w,e,f, 14-2-2002, but the same was not sanctioned; that during the night of 19-/20-2-2002, on receiving the message about the serious condition of his wife at his village in Tehsil Pano-Aqil, the Appellant applied leave for 10 days and handed over the written application to .His Incharge Foreman at the latter's residence and left for his village for looking after his ailing wife; that in the meanwhile katcha structure of the Appellant's house fell down which compelled him to apply for extension of the leave for 10 more days through an application by hand, addressed to the Respondent No,3; that after expiry of 10 days extension of leave the Appellant appeared for duty on 12-3-2002, but the Foreman concerned refused to allow duty and directed him to approach the Divisional Officer Sukkur for duty orders; that the Appellant was kept in the office from 12-3-2002 to 20-4-2002 and was kept sitting idle and, thereafter, the above-mentioned show-cause notice was served upon, him. The learned counsel for the Appellant vehemently argued that the above mentioned facts, which raised a factual controversy, needed to be resolved by means of inquiry, but no inquiry was held and no defence opportunity was provided to the Appellant and his request for personal hearing was also rejected, thereby causing grave injustice to the Appellant and straightaway order of his dismissal from service was passed against him; that the order of dismissal of the Appellant was, therefore, liable to be set aside and the Appellant was entitled to be reinstated in service with full back-benefits.
7. The learned counsel for the Respondents stated that the Appellant's own reply (annexure 'E' to the memo. Of appeal at page-19) hows that the entire defence of the Appellant was an afterthought and was based on documents which were neither submitted nor received by the Respondents. The learned counsel for the Respondents confronted this document to the learned counsel for the Appellant and to the Appellant himself, who was also present. This document was filed by the Appellant with his memo. Of appeal and it was not denied before us. If reads as under:- - "To ' The Honourable (Competent Authority), Divisional Superintendent, Pakistan Railways, Sukkur.
Sub: Show-Cause Notice No,443-E/1/141/P2 dated 18-4-2002.
' Reference to your above show-cause notice for absent from duty w,e,f, 20-2-2002 to 3-4-2002 then waiting for duty in Divisional Office.
Sir in this matter I beg to state, that I am living in village away from my duty at least 50 kms and I attend daily duty without late but due to suddenly damage of my katcha house at my village I failed to inform my Incharge due to I was busy to repair the same as my little children cannot live to other houses without our self house. When the house repaired I reached for my duty and applied for duty. Kindly excuse this time on humanitarian ground and himself allow me duty I shall careful forever in future. For this act of kindness I shall be highly thankful and always pray for your long life and prosperity. Dated: 20-4-2002 (Sd.)
Arbab S/o Ali Nawaz, S.S. Fitter. T. No, 177."
' A perusal of the above reply of the appellant to the show-cause notice clearly shows that the entire defence of the Appellant, as urged by the learned counsel for the appellant, is an afterthought and does not hold water. The above reply of the appellant cuts at the very root of his concocted defence. We are, therefore, of the considered.Opinion that in view of the above reply of the appellant there was absolutely no need of an inquiry into the allegations of the absence of the appellant from duty (habitual or otherwise) from 20-2-2002 to 3-4-2002. The charge of absence without intimation and remaining absent unauthorizedly stands squarely proved against the Appellant. There is no cavil to the fact that such an absence amounts to misconduct, as such, the appellant has rightly been held guilty of misconduct by the respondents. There is, however, no evidence on the second allegation of the appellant's ceasing to be an efficient employee.
8. Faced with the above situation the learned counsel for the appellant earnestly beseeched the Tribunal to consider the case of Appellant sympathetically so far as the harsh punishment of dismissal from service imposed upon him was concerned as he had a long service of 20 years and he has to support a large family consisting of nine children and others.
9. Considering the fact that the appellant had a long service of 20 years and in the absence of any other adverse material against him and also looking to the fact that he has a large family to support, we take a lenient view and convert his penalty of dismissal from service into compulsory retirement from service. We with no order as to costs. Appeal stands rejected with punishment modified.
9-A. Announced in open Court in presence of Advocates for the parties and Appellant in person.
Appeal rejected accordingly.