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Case No. 593/201 of 1982, decided on 11th December, 1983.

‑‑‑S. 21‑‑Appeal before Tribunal delayed due to second appeal before competent authority‑‑Held: No second appeal/ representation lies to the same authority‑‑Appeal barred by time.

‑‑‑S. 17‑‑Absence from duty without leave to evade transfer‑‑Plea of sickness not established‑‑Order treating absence as extraordinary lea% e without pay challenged before Tribunal‑‑Held: Competent authority had taken lenient and sympathetic view by allowing appellant extraordinary leave during period of his wilful absence from duty.

Appellant in person.

A. G. Humayun, District Attorney for Respondents.

M.A. Latif has made this appeal under section 4 of the Punjab Service Tribunal's Act, 1974 against the order dated 13‑4‑1982 and the order of Appellate Authority dated 17‑7‑1982 and final order dated 7‑11‑1982 by which his pay from 16‑6‑1973 to 19‑6‑1974 was withheld by treating this period as extraordinary leave. The appellant has prayed that the impugned orders be set aside and the pay of the entire period from 16‑6‑1973 to 19‑6‑1974 be allowed, after treating this period as leave on due basis. The appellant has impleaded the Superintending Engineer (H.Q.) Irrigation, Faisalabad and the Chief Engineer, Irrigation, Faisalabad as respondents.

2. Brief facts of the case are that the appellant while posted in Sialwala Section of Hafizabad Division, was transferred to Jhang Division on 15‑6‑1973 with the explicit condition that no leave will be sanctioned and the officials assuming leave will be considered as absent without leave. Having come to know about his transfer, the appellant managed two days casual leave from the Sub‑Divisional Officer and thereafter submitted piecemeal applications for the grant of leave on medical certificates granted by a Private Medical Practitioner from 16‑6‑1973 to 6‑8‑1973. In his absence, the charge of Sialwala Section was assumed by another Sub‑Engineer w.e.f. 16‑6‑1973. The appellant was directed by the Executive Engineer, Hafizabad Division, Faisalabad to appear before the Medical Superintendent, D.H.Q Hospital, Faisalabad. He kept quiet for sometime and appeared before the Medical Superintendent, D.H.Q. Hospital, Faisalabad on 27‑9‑1973 but was declared fit with the observations that on the examination by the Medical Superintendent, the appellant was found fit to resume his duty. Even on this, the appellant did not resume duty in Jhang Division in compliance to the

orders issued on 15‑6‑1973. The appellant also did not submit any application for leave for the period from 7‑8‑1973 to 19‑12-1973 on the plea that he has got a stay order from the Court. On 20‑12‑1973, when his applications for temporary injunction had finally been rejected by the Courts, after that, the appellant again submitted the applications, in piecemeals, for the grant of leave on the anology of Medical Certificates from a private medical practitioner from 20‑12‑1973 to 7‑5‑1974. The appellant was again directed to appear before the Medical Superintendent but he appeared only on 21‑5‑1974 and was declared fit for duty. Even at this stage, the Medical Superintendent, D.H.Q. Hospital, Faisalabad did not countersign the medical certificates. Thus, the appellant remained absent from duty during the entire period on his own will. Hence, the period from 16‑6‑1973 to 19‑6‑1974 was considered as absence without leave and the appellant was sanctioned extraordinary leave (without pay and allowance) as admissible under the leave rules vide order, dated 13‑4‑1982 of the Superintending Engineer (H.Q.), Faisalabad Region, Faisalabad. The appellant made an appeal to the Chief Engineer, Irrigation, Faisalabad which was rejected vide his order, dated 17‑7‑1982. The appellant made, yet, another appeal to the Chief Engineer, Irrigation. Faisalabad which was also rejected vide his order, dated 7‑11‑1982 with the remarks that second appeal is not competent under the rules. Hence this appeal.

3. I have heard the parties. The appellant has argued his case personally while the learned District Attorney has defended the respondents.

4. A preliminary objection has been raised by the learned District Attorney that the appeal is time barred and is liable to be dismissed on this score alone. It has been submitted by the learned District Attorney that second appeal is not competent under section 21 of the Punjab Civil Servants Act, 1974. Thus, the final order in this case is, dated 17‑7‑1982 of the Chief Engineer Irrigation, Faisalabad, and .the time limit will start from this date. The appellant should have filed the appeal to the Punjab Service Tribunal within one month of this date; but the appellant has filed this appeal on 11‑12‑1982 to this Tribunal, thus; the appeal is time barred by about four months.

5. On the other side, the appellant has submitted that he has also filed an application for condonation of this delay where the valid reasons have been given by him. The appellant has, further, submitted that the Chief Engineer, the appellate authority, has himself directed him to submit second appeal. Hence it was binding for him to submit second appeal as desired by the appellate authority. The appellant prayed that the delay be condoned keeping in view the detail reasons as given in his application for condonation of delay.

6. On merits, the appellant has submitted that he was actually a sick man, as is clear from the certificates of the private medical practitioner submitted by him that he was not fit to attend the duty. Thus, he is entitled for the leave on medical ground, as admissible under the rules to be granted for the period from 16‑6‑1973 to 19‑6‑1974 as he had sufficient leave on his credit. He prayed that extraordinary leave be ordered to be converted to leave on due basis.

7. On the other hand, rebutting the above argument of the appellant, the learned District Attorney has submitted that the appellant was transferred with the clear orders that no leave will be sanctioned and if he assumed any leave, would be considered as absent without leave. The appellant did not obey the transfer orders, absented wilfully from duty and had been pretending to be a sick man. His illness was never established, when he appeared twice before the Medical Superintendent and was found fit for duty. This fact proves that the appellant was not actually sick and absented from duty knowingly. The respondent No. 1 has already taken a lenient view in sanctioning the appellant as extraordinary leave, without pay, for the period he remained wilfully absent from duty; otherwise he should have been dealt with severely under the Efficiency and Discipline, Rules.

8. I have given my anxious thought to the arguments of the parties and have also consulted the record of this case carefully. I agree with the learned District Attorney that no second appeal lies to the same authority i.e. Chief Engineer, Irrigation, Faisalabad and the second appeal/ representation was not competent as per section 21 of the Punjab Civil Servants Act, 1974. The Chief Engineer, Irrigation, Faisalabad had rightly held while rejecting the second appeal of the appellant vide his order, dated 7‑11‑1982 that "second appeal is not competent under the Rules". I have also gone through the reasons given by the appellant in his application filed, under section 5 of Limitation Act for the condo nation of delay. I consider that the grounds/reasons given therein are not convincing and these do not persuade me to condone the delay. Thus, I hold that the appeal is time‑barred by four months as pointed out by the learned District Attorney.

9. On merits the case also fails. The record shows that the Medical Superintendent, D.H.Q. Hospital, Faisalabad did not find the appellant sick on two occasions when he examined the appellant and found him fit for duty. Thus, the plea of the appellant that he was ill and unable to attend the duty, is cot a genuine one and the respondent No. 1, had correctly held the appellant as absent from duty without leave. I also agree with the learned District Attorney that respondent No. 1 i.e. Superintending Engineer (H.Q.), Irrigation, Faisalabad Region, Faisalabad had already taken a lenient and sympathetic view by allowing the appellant extraordinary leave, without pay, during the period from 16‑6‑1973 to 19‑6‑1974, when the appellant remained absent from duty wilfully.

10. The upshot of the above discussion is that there is no force in this appeal which is dismissed as being time‑barred and without any merits.

There will be no order as to costs.

M. I.

Appeal dismissed.

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