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Case No. 109/424 of 1979, decided on 8th January, 1983.

-- R. 2(I) (d)-"Misconduct"-Conduct prejudicial to good order or service discipline-Civil servant sent on foreign deputation with clear terms of specified period-Entering into new contract with foreign Government without consulting or seeking. permission from Punjab Government-Amounts to wanton act of indiscipline and misconduct-Major penalty of removal from service, held, justified for such misconduct-Punjab Service Tribunals Act (IX of 1974), S.4.

Nayyar 1qbal Ghouri for Appellant.

Haroon-ur-Rashid Cheema. District Attorney for Respondent.

-Dr. Abdur Rashid Arif has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order, dated 28th September, 1978 removing him from service and order, dated 31st January, 1979 by which his review was rejected. He has impleaded the Province of the Punjab through Secretary Health, Government of the Punjab, Lahore as respondent.

2. By virtue of this appeal he has prayed that the impugned orders be set aside and he may be re-instated in service with all back benefits.

3. Brief facts of the case are that the appellant while posted at the District Headquarter Hospital, Gujranwala as Dental Surgeon was selected and offered appointment by the Ministry of Health, Libyan Arab Republic, for appointment as such. This appointment was initially for a period of one year under a renewable contract. The appellant after fulfilment of the formalities involved was allowed to proceed on deputation on foreign service for a period of one year. Certain conditions were imposed upon him with regard to his contribution towards G. P. Fund, Benevolent Fund and Group Insurance, which were to be paid in foreign exchange according to the rules. He was also told that the Government would have the right to ask him to return to duty on the expiry of the period of deputation (not exceeding five years) or to quit service, if he was unwilling to return to the country:

4. During the stay abroad the foreign deputation of the appellant was extended on 22nd June, 1973 by two years that is upto 21st May, 1975 on 2nd September 1976 he was asked to return to Pakistan and resume his duties in the parent Department but what the appellant did was he applied for further extension in his foreign 'deputation up to 31st May, 1977. The said request was granted but with a note of caution that he would not be allowed to continue beyond the period of five years. The appellant failed to return by the due date i.e. 1st June, 1977.

5. The competent authority proceeded against the appellant in accordance with the provisions of the Punjab Civil Servants (E & D) Rules, 1975. He was given a show-cause notice under the above rules. He submitted a written defence in reply to the said show-cause notice but the same was considered unsatisfactory. However, the appellant was asked on 7th January, 1978 to state in clear terms whether or not he desired to avail of the opportunity of being heard in person. The appellant requested that he should be heard through Mr. Hamid Arif who would represent the case. The said Mr. Hamid Arif did not appear before the competent authority and the impugned order was passed against him and a notification to that effect was issued on 28th September, 1978. The appellant came up with a review petition under rule 16 of the Efficiency and Discipline Rules, 1975 against the penalty of removal from service so imposed upon him. This review petition was formally rejected and the petitioner was informed of this rejection on 31st January, 1979. Hence this appeal.

6. We have heard the learned counsel of the appellant as well as the learned District Attorney assisted by the representative of the Department and have carefully perused the record of this case with their assistance.

7. The learned counsel for the appellant bas submitted that the appellant had gone abroad to serve in Libya with the permission of the Government and the Libyan Government do not allow him to leave the said country, therefore, he was not responsible for reporting back to duty. It has been argued that the appellant tried his level best to secure his release from the Libyan Authorities, which was refused. Therefore, he should not be penalised for an act which was beyond his control.

8. On the other hand the learned District Attorney has submitted that the petitioner was not at liberty to enter into a contract of employ ment with the foreign employer, in excess of the authorized period of his foreign deputation. It has been pointed out by the learned District Attorney that the appellant tendered his resignation with the Libyan Authorities on 13th March, 1978 according to his own statement. This date was after disciplinary action had been initiated against him in this manner, it has been argued that the appellant wilfully stayed in Libya for monetary advantage and defied the mandatory provisions of Service Rules as well as the policy of the Government laid down in this behalf.

9. We have given our anxious thoughts to the arguments advanced by the parties before us and find that according to the para. 8 of S G & I Department's Policy letter, dated 5th May, 1977 the appellant was duty bound to quit service if be was not willing to return to his country for reporting on duty on the expiry of five years. It is also on the record that despite he was offered this opportunity of resigning from service but be did not avail the same. We have also taken note of fact that the appellant did not fulfil his obligations to contribute towards G. P. Fund, Benevolent Fund and Group Insurance to the Government of Punjab in foreign exchange according to the rules. Moreover. the appellant was fully aware that it was laid down in the terms of his service abroad while on deputation that after the expiry of period of five years he had to come back under all circumstances. The act of the appellant by entering into a new contract with the Government of Libya without consulting or seeking permission from his Government was wanton act of indiscipline and misconduct. Misconduct as defined in rule 2 (1) (d) of the Punjab Civil Servants (E & D) Rules, 1975, includes "Conduct prejudicial to good order or service discipline". In this manner by entering into a new contract despite the fact that he was aware that he could not do so, the said act of the appellant falls within the mischief of said definition of misconduct. We are of the considered opinion that the appellant had entered into a contract of employment with the foreign employer an utter violation of terms and conditions of his foreign deputation and beyond the authorised period of that deputation. Such act of omissions and commissions would definitely make him liable for major penalty.

10. The result is, we do not find any merits in this appeal which is dismissed as such.

There will be no order as to costs.

1. E.

Appeal dismissed.

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