PLJ 2003 SC 213
[Appellate Jurisdiction]
Present: abdul hameed dogar and sardar muhammad raza khan, JJ.
REHMAT ULLAH KHAN and others-Appellants
versus
POST MASTER GENERAL, POST OFFICE NWFP
others-Respondents
C. As. No. 24, 510, and 1049 of 2000, decided on 7.1.2003.
(On appeal from the judgment dated 16.3.1999 of the Federal
Service Tribunal Islamabad, passed in Appeals
Nos. 879 (P), 747 (R) and 880 (P) of 1998).
(i) Service Tribunal Act, 1973 (LXX of 1973)--
—-S.
2-A-Constitution of
appeal by
Service Tribunal being time-barred-Leave to appeal was
granted to consider; whether delay in filing appeals before Service
Tribunal
was condonable after insertion of S. 2-A in Service Tribunal Act,
1973. [P. 214] A
(ii) Service Tribunal Act, 1973 (LXX of 1973)--
—S. 2-A-Constitution of
before Service Tribunal-Entitlement to condonation of delay-Appellants
main
contention was that Supreme Court in similar circumstances had
already
taken lenient view in Muhammad Afzal's case (1999 SCMR 92)
by remanding matter to
Service Tribunal keeping view of insertion of S.
2-A in Service Tribunal Act 1973, for fresh decision on merits while
condoning delay in filing appeal before
it-Muhammad Afzal case (!999
SCMR (92) having been published in January part of SCMR-Tribunal
should have taken view for condoning
delay in filing appeal on account of
prevailing confusion with regard to
availability of remedy to aggrieved
person-Appellants had filed their
respective appeals before Service
Tribunal on 28.11.1998, admittedly
prior to January 1999 on which date
Muhammad Afzal's Judgment (1999 SCMR 92) was published-Order of
Service Tribunal relating to dismissal of appeals was set aside and cases
were remanded to service Tribunal with
direction to decide same in
accordance with law while determining question of condonation of delay
in the light of observations of Supreme
Court. [Pp. 214 & 215] B
1999 SCMR 92 and 2000 SCMR 830 ref.
Ch. Sadiq Muhammad Warraich ASC for Appellants.
Sardar Muhammad Aslam DAG for Respondents.
Sh. Riaz-ul-Haq, ASC for Respondents (in
Date of hearing: 7.1.2003.
order
Abdul Hameed Dogar, J.--This judgment will dispose of Civil Appeals Nos. 24 of 2000, 1049 of 2000 and 510 of 2000 as common question of law has been involved.
2.
Appellant Rehmatullah and Qaiser Khan were working as
Village
Postman
and Mail Runner in the office of Respondent No. 4, whereas
Muhammad
Waris was working as Chowkidar in the office of respondent-
Bank when on 22.9.1996, the
services of appellants Rehmatullah and Qaiser
Khan were terminated on 22.9.1996 and that
of Muhammad Waris was
terminated on 18.9.1996 by the
respective respondents. They filed grievance
petitions before the
2-A was added
in Service Tribunals Act, 1973
on 10.6.1997 whereby
appellants became civil
servants. They, however,
did not invoke the
jurisdiction of the Service Tribunal but it was on 24.10.1998, the
Court
above provisions of law.
Thereafter, the appellants filed their respective
appeals before the Federal Service Tribunal,
to as 'The Tribunal') on 28.11.1998 which
were dismissed solely on the
ground that the same were filed after
one month and four days of the order
of the dismissal of the grievance
petition by the
3.
Leave to appeal was granted in these appeals to consider
as to
whether the delay in these
cases is condonable after insertion of Section 2-A
in the Service Tribunal Act, 1973.
4.
We have heard Ch. Sadiq Muhammad Warriach, learned ASC
for
the appellants, Sardar
Muhammad Aslam, DAG for Postmaster General, Sh.
Riazul-Haq, learned ASC for United Bank
Ltd., and have gone through the
record and the proceedings of the case in minute particulars.
5.
Learned counsel appearing for the appellants mainly
contended
that
this Court in the similarly circumstances has already taken the lenient
view in
the cases of Muhammad Afzal vs. Karachi Electric Supply Corporation
and
two others (1999 SCMR 92) an&Muhamm'ad Yaqub v. Pakistan Petroleum
Ltd.
and another (2000 SCMR 830) by remanding the matters to the
Tribunal keeping in view of
the insertion of Section 2-A in the Act for fresh
decision on merits while condoning the delay
in filing of appeal before it.
6.
We
have given anxious consideration to the contentions raised at
bar and have gone through the above referred
case law. In the case of
Muhammad Yaqub (supra), the
ground which weighed with this Court
mainly was that the first judgment on
the subject-matter after the insertion
of Section 2-A in the Act reported as
Muhammad Afzal (supra) was
published in the Edition of SCMR
January Part, 1999, as such the Tribunal
should have taken lenient view for condoning the delay in filing the
appeals
on account of prevailing confusion with regard to availability of the remedy
to an aggrieved person, .who was employed in an organization or corporation, controlled by the Government or any other Government department. In these matters, the appellants had filed their respective appeals before the Tribunal on 28.11.1998 admittedly prior to January, 1999 on which date, the first judgment on the particular point was published.
7. Accordingly, the above appeals are allowed. The order of Tribunal is set aside and the cases are remanded to the Tribunal with the direction to decide the same afresh on merits in accordance with law while determining the question of condonation of delay in the light of the above observation. However, there shall be no order as to costs.
(A.P.) • Case remanded.
B
PLJ2003SC215
[Appellate Jurisdiction]
Present: iftikhar muhammad chaudhry ACJ; abdul hameed dogar and sardar muhammad raza khan, JJ.
FAROOQ NAWAZ-Petitioner versus
DIRECTOR OF C.P. DIRECTORATE AGS
BRANCH, G.H.Q.,
C.P. No. 1502 of 2002, decided on 20.1.2003. (i) Civil Service--
—Absence
from duly without leave-Removed from service-Petitinoner was
absent
from duty with effect from 7.1.1997, while he was arrested on
charge
of murder on 5.2.1997-During period of his absence and arrest,
no application
was submitted by him for grant of leave-Even otherwise,
on having been released on bail on 9.2.2000, it was petitioners duty to
report
to department for discharging his functions-Petitioner remained
absent from duty from
7.1.1997, till date1 of his arrest on 5.2.1997 and
non-joining duty after getting bail on
5.2.2000, were sufficient to conclude
that his absence was intentional and
he was not interested to perform his
duty. [P. 217] A
(ii) Revised Leave Rules 1980--
—R. 7-Petitioner's claim that he had five years leave without pay to his credit, therefore, department was bound to allow him leave for period during which he remained absent was of no consequence in as much as, leave is not allowed to an employee automatically during period of his absence from duty-Employee was required to make express request for sanctioning leave and if such request was conceded and leave was sanctioned, only then be can proceed on leave-Employee's plea that his
absence from duty
should be treated towards leave as be had sufficient
leave in
his credit without formal request for its sanction was not
accepted
under law. [P. 217] B
(Hi) Constitution of
—-Art. 212(3)-Civil Servant-Absence from duty without leave-Removal
from service-Legality-Petitioner had not been non-suited by service
Tribunal
for reason that he had no leave in his account or that
department
may have granted leave in his favour during period of his
absence without applying formally for same but for reason that his
departmental
appeal had been found barred by time in terms of S. 4 of
Service
Tribunal Act, 1973, following dictum laid down by Supreme
Court
in Muhammad Hayat Saleem's case (2002 SCMR 918) delivered
relief
to him and rightly so in view of fact and circumstances of case-
Leave to
appeal was thus refused. [P. 217] C
2002 SCMR 918 ref.
Mr. Jan Muhammad Khan, AOR/ASC for Petitioner. Nemo for Respondents. Date of hearing: 20.1.2003.
judgment
Iftikhar Muhammad Chaudhry, ACJ.-This petition is directed for leave to appeal against the judgment dated 17.6.2002 passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by the petitioner against the order dated 25.2.1997 removing him from service has been dismissed.
2. Precisely stated the facts of the case are that
petitioner being
civilian employee in Station
Workshop, EME, Risalpur, was proceeded
against departmentally for remaining
absent from his duty from 7.1.1997 to
onward. The explanation of the
petitioner was that he was involved in a
murder case on 5.2.1997 and
subsequently, was released on bail on 9.2.2000
and finally he was acquitted of the
charge on 30.6.2000. In the meanwhile, he
has been removed from service,
therefore, he filed departmental appeal on
12th August, 2000 followed by the
reminder dated 10.11.2000 but request so
made by him was rejected by the
department on 10.1.2001. As such, he
preferred appeal before the Federal
Service Tribunal which has been
dismissed by means of impugned
order.
3. Learned counsel contended that after getting bail
from the Court
in a criminal case, petitioner was
not aware about his removal from service,
therefore, after the acquittal from
the charge of murder on 30.6.2000, he
came to know about his removal from
service, as such on 12.8.2000, he
submitted his representation for his
reinstatement into service followed by
its reminder dated 10.11.2000 but his
grievance was not redressed as
departmental appeal filed by him was
rejected on 10.1.2001, therefore,
according to him, the time shall run against the petitioner for filing of the departmental appeal from the date of acquittal and not from the date of bail granted to him by the Court of competent jurisdiction.
We do not agree with the proposition put forth by him because record reveals that petitioner was arrested in the case on 5.2.1997 whereas he was absent from his duty with effect from 7.1.1997. During this period, no application was submitted by him for grant of leave. Even otherwise, on having been released on bail on 9.2.2000, it was his duty to report to the department for discharging his functions because there is no provisions in the Service Rules that if a person is charged for a criminal case, he is debarred to perform his duty till the time he earns his acquittal. It is settled law that until a criminal case is decided finally, the presumption is that the accused facing the charge of criminal nature is an innocent person. Therefore, he should have approached departmental authorities immediately after his release. Both the factors pointed out hereinabove, namely, he remained absent from 7.1.1997 till the date of his arrest on 5.2.1997 and non-joining duty aftergetting bail on 9.2.2000 are sufficient to conclude that his absence was intentional and he was not interested to perform his duty as it has been rightly observed by the Inquiry Officer.
4.
Learned counsel next contended that petitioner had five
years
leave
without pay to his credit, therefore, the department was bound to allow
him leave
for the period during which he remained absent. It may be noted
that
initially petitioner preferred an application for grant of leave for the
period
after 7th July, 1997 when he has already been treated absent and on
the
basis of his absence, he was removed from service on 25.2.1997,
therefore,
the department, in such circumstances, was not bound to accept
his
request for sanctioning leave in his favour from his leave account. It is
also
noteworthy that leave is not allowed to an employee automatically
during
the period of his absence from the duty, as the employee requires to
make express request for sanctioning leave and if such request is conceded
and leave is sanctioned only
then he can proceed on leave and as such of an
employee that his absence from duty should be
treated towards leave as he
has sufficient leave in his credit
without formal request for its sanction is not
acceptable under the law. In this
behalf reference may be made to Rule 7 of
the Revised Leave Rules, 1980, which
cast duty upon the Employee to
proceed on leave after getting it
sanctioned accordingly not otherwise.
5.
It is also to be seen that in the instant case,
petitioner has not
been
non-suited by the Service Tribunal for the reason that he had no leave
in his
account or the department may have granted the leave in his favour
during the period of his
absence without applying formally for the same but
for the reason that his departmental appeal
has beun found barred by time
as such the Service Tribunal relying
upon the provisions of Section 4 of the
Service Tribunals Act, following the
dictum laid down by this Court in the
case of Muhammad Hayat Saleem v. Government of Sindh through Excise
B
D
and Taxation
Department,
8. Thus having gone through the impugned judgment carefully, we are persuaded to hold that it does not suffer from any legal discrepancy nor any question of public importance is involved in terms of Article 212 (3) if the Constitution of Islamic Republic of Pakistan, 1973, therefore, no case is made out for grant of leave, therefore, leave is declined.
(A.A) Leave refused.