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Appeal No. 78 (L) of 1981, decided on 14th October, 1982.

‑‑ R. 4(4)(iv)‑‑Resignation acceptance of‑Dismissal Civil servant proceeding on casual leave overstaying and on calling of explana tion tendering resignation and stopping attending office‑Civil servant before acceptance of resignation directed to pay bond money as required under Rules and on his failure served with notice to attend office and finally issued with show‑cause notice Dismissal on failure to attend office‑Conditions of bond found not applying in his case as such decision of authority re garding acceptance of his resignation found erroneous and against factual position‑Resignation, held, to be deemed to have been accepted from date it was tendered‑Disciplinary proceedings taken against such civil servant being redundant, quashed.

‑‑R. 4‑Effect of passing departmental examination‑Held, neither relevant for completion of training nor for termination of proba tion.

Shahzad Jehangir for Appellant.

Hafiz Tarig Naseem for the State.

Date of hearing : 20th September, 1982.

The appellant while serving as Section Officer in the Establishment Division was granted casual leave for six days from 30th June, 1979 to 5th July, 1979 to be availed of at Lahore. He, however, overstayed the leave and was, therefore, asked telegraphically by the Establishment Division to report for duty qt once. He joined the office on the 14th July, 1979 and submitted an application referring to his previous leave application. It was stated therein that he had to extend his stay at Lahore as his sister was to be hospitalised He, therefore, asked for grant of leave for the period he overstayed. Thereon, vide memo dated the .15th July, 1979 issued by the Deputy Secretary (Admn.) of Establishment Division he was called upon to ex plain as to why disciplinary action should not b taken against him for overstaying the leave granted to him. It appears that no reply was given by the appellant to the said memorandum. He, however, tendered his resignation on 15th July, 1979 addressed to the Secretary, Establish ment Division, stating therein that his overriding domestic and business obligations have necessitated his urgent presence in Lahore, therefore, he was unable to continue in public service any longer. He, thereafter, stopped attending the office. Vide a letter, dated 11th August, 1979 the appellant was informed by the Establishment Division that under the rules he was required to pay the bond money before his resignation could be accepted. Simultaneously he was informed telegraphically that be is absent from office without permission and that disciplinary action would be taken against him under the rules if he does not attend the office. After waiting for ten days it was decided by the Establishment Division that the appellant's pay should be stopped. The Establishment Division notified through Press directing the appellant to resume his duty immediately. Such notices were published in Daily Nawa‑i‑Waqt and Pakistan Times, dated 29th September, 1979. Again a memorandum 'was sent to him by post directing him to report for duty at once. The appel lant, in reply to the said memorandum, stated that he had to rush to Lahore as his absence from Lahore resulted into forcible possession of his property and that on account of the unavoidable circumstances pertaining to extreme domestic emergency, he had been unable to attend the office since quite sometime. He, therefore, requested that he may be allowed leave under the rules upto 25th December, 1979. Thereafter, it appears that, the Establishment Division started steps for recovery of bond money from the appellant and a number of notices were issued to him and his sureties requiring them to deposit the bond money. Consequently he attended the office, on 24th April, 1980 and again obtained five days' casual leave w.e.f. 26th April, 1980 but again failed to resume the duties on expiry of the leave. A number of notices were sent by post at the appellant's home address and also published in the newspapers requiring him to attend the duties but he failed to do so. Considering that this default of the appellant amounted to misconduct he was served with a show‑cause notice, dated 23rd April, 1980 calling upon him to show cause within fourteen days of the receipt thereof as to why any of tf'e major penalties as prescribed by the Government Servants (E & D) Rules, 1973, should not be imposed on him. He did not bother even to reply to the said notice nor be joined the duties. The competent authority, in the circumstances, considering him guilty of misconduct awarded the penalty of dismissal from service to him. A review petition submitted by him by way of departmental remedy, was also rejected as conveyed to him vide the Establishment Division's letter, dated 27th January, 1981. He then filed the present appeal with a prayer of setting aside the impugned order of his dismissal from service.

2. We have heard Mr. Shahzad Jebangir, the learned counsel for the appellant, and Hafiz Tariq Naseem, the learned counsel for the Depart ment. Without considering the legality and validity of the proceedings taken and order passed against the appellant, we may first like to men tion that the appellant, at the very initial stage, tendered his resignation but its acceptance was withheld till the appellant had deposited the cost of security bond furnished by him. On a careful consideration of the matter we have reached the conclusion that the Establishment Division was not justified in withholding the acceptance of the resignation, of the appellant till such time as he deposits the money of the bond executed by him because it was specifically mentioned ' in the said bond that any obligation arising out of the said bond will be bull and of no effect if

(i) the appellant successfully completes his training ;

(ii) he does not resign his service during the period of his probation and three years thereafter on any ground other than ill health ; and

(iii) is not dismissed or removed from service for misconduct during that period.

Thus, the appellant was refrained in terms of that bond from resign ing his service during the period of probation and three years thereafter. The appellant, however, tendered his resignation on the expiry of the said period. The contention of the Establishment Division, however, is that since the appellant had not passed the departmental examination he shall not be deemed to have completed his training. This contention is untenable on the face of it. Passing of the departmental examination is t3 neither relevant for completion of the training nor for termination of the probation. As stated above, on the date when the appellant submitted his resignation the conditions of the bond ceased to apply to him. The decision of the Establishment Division that his resignation could be consi dered only if he furnishes the cost of his training in terms of the bond was, therefore, erroneous and against the factual position. It, therefore, follows that the Establishment Division unreasonably and unjustly with held the acceptance of the appellant's resignation. It was quite clear that the appellant was an unwilling worker and under the law his resigna tion could be accepted without asking him to pay the expenditure of his training. The Establishment Division, therefore, grossly erred in not accepting the resignation of the appellant. We, therefore, disapprove and set aside the decision of the Establishment Division withholding the acceptance of the appellant's resignation and direct that the resignation of the appellant shall be deemed to have been accepted with effect from 15th July, 1979. The disciplinary proceedings taken thereafter against the appellant and the order of his dismissal from service passed there obviously become redundant and are hereby quashed. The notification of the appellant's dismissal from service may be cancelled and acceptance of his resignation should be duly notified by the respondent‑department. The appeal is accordingly disposed of in the above terms with no order as to costs.

M. Y. H.

Appeal accepted.

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