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Case No. 347 of 1985, decided on 3rd October, 1985.

‑‑‑R. 2(d) & 4‑‑Misconduct‑‑Absence without leave‑‑Accused applying for extension of leave granted on private affairs and on being rejected submitting application on medical grounds but failing to appear, despite directions, to appear before Specified Medical authority for second opinion‑‑Accused, in circumstances, held, guilty of misconduct of wilful absence and a chronic case of absence as well as indiscipline‑‑Service Tribunal refusing to interfere in penalty of removal from service.

M. Muhammad for Appellant.

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.

‑Fayyaz Hassan, Ex‑Senior Clerk, Directorate of Industries and Mineral Development, Punjab, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Directorate of Industries and Mineral Development, Punjab, Lahore, and Deputy Director (Administration), Directorate of Industries and Mineral Development, Punjab, Poonch House, Lahore, as respondents.

2. Through this appeal, the appellant Fayyaz Hassan has prayed that the impugned order, dated 18‑10‑1983 of Director Industries, Government of Punjab, vide which the departmental appeal, regarding removal from service against the orders, dated 11‑7‑1982 of the Deputy Director (Administration), was dismissed, may be set aside, and the appellant be reinstated in the service.

3. Brief facts of the case are that the appellant Fayyaz Hassan was issued the following show‑cause notice by the Deputy Director (Administration):‑

"You (appellant) were granted 4 months leave on private affairs from 1‑1‑1979 to 30‑4‑1979 vide this Office Order No. DIS/PR/ Admn/VI/50, dated 4‑6‑1979. You applied for further extension in leave on the same grounds in piece meal with effect from 1‑5‑1979 to 28‑8‑1981, the last having been sanctioned vide this Office Order No. A‑E‑4‑153/81, dated 20‑6‑1981.

On the expiry of the above you applied for further extension in leave for 181 days with effect from 1‑9‑1981 to 28‑2‑1981 vide your application, dated 23‑9‑1981. It was rejected and you were directed to resume duty within 7 days failing which severe disciplinary action will be taken against you under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 vide this office Memo. No. A‑E‑4‑153/81, dated 24‑10‑1981. Instead of complying the above instructions, you submitted another application dated 5‑9‑1981 received late insisting upon the grant of extension in leave already applied for, which was rejected. Your request is again rejected and you are again directed to resume duty within seven day failing which your absence will be treated as unauthorised and disciplinary action will be taken against you under the said rules. Another notice is, therefore, issued to you to resume duty within 7 days of the receipt of this communication. More than a month has elapsed but no intimation has so far been received from you.

Failure on your part to resume duty with effect from 29‑8‑1981 in compliance with the above directives constitutes gross misconduct rendering you liable to disciplinary action under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975.

In the circumstances you are hereby called upon under rule 6(3) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 to show‑cause in writing within 10 days of the receipt of this notice as to why any of the major penalties provided in rule 4(b) of the aforesaid rules which may include your removal from service may not be imposed on you for misconduct and wilful absence from duty as stated above."

The appellant instead of submitting a written reply and resuming duty submitted another application, dated 26‑11‑1981 requesting extension for leave on medical ground. Since the explanation was considered unsatisfactory, a show cause notice was issued on him and it was provisionally decided to remove him from service. The appellant was also given a chance of personal hearing. The appellant submitted another application, dated 31‑12‑1981. The appellant was given a chance for second opinion and directed to appear before the Medical Superintendent, Services Hospital, Lahore, on condition that in case he would not appear before the Medical Superintendent, the action proposed against him, will accordingly be confirmed. The appellant did not appear before the Medical Superintendent. After receipt of the letter of the Medical Superintendent, that the appellant did not appear before him for medical examination, the Deputy Director (Administration) removed the appellant from service vide his orders, dated 11th July, 1982. Aggrieved by this order, the appellant filed departmental appeal which was rejected vide orders, dated 18‑10‑1983 of the Director Industries. The appellant also filed a representation, dated 22‑4‑1984 to the Secretary Industries. Hence this appeal.

4. At the time of the arguments at the preliminary stage, the learned counsel for the appellant contended that the Deputy Director acted as authorized officer, authority and appellate authority and as such the impugned orders particularly the orders of the Appellate Authority, are defective. The learned counsel for the appellant further stated that no regular inquiry was held in case of the appellant and as such the appellant was condemned unheard. The learned counsel for the appellant stressed that the authority or the appellate authority did not properly consider the explanation or written statement of the appellant. The learned counsel for the appellant closed his arguments while stating that in some cases of similar nature like Mr. Parvez Yasin, Assistant, was reinstated.

5. The learned District Attorney opposed the appeal and stated that the appellant was subjected to legal requirement of rule 6(3) of E&D Rules, 1975. The learned District Attorney stressed that the appellant was repeatedly and continuously guilty for absence from duty without leave and in spite of so being directed, did not appear before the Medical Superintendent, Services Hospital, for the second opinion and as such the appellant was author of his own wrong for not making any justification for grant of medical leave. The learned District Attorney closed his arguments while stating that the appellant was removed from the service by the Deputy Director and the appeal was rejected by the Director and accordingly there was no abuse of any authority or non‑compliance of any legal provisions.

6. We have carefully considered the points so raised by the learned counsel for the appellant and the learned District Attorney for respondents and have also consulted the record including the departmental comments. We are of the considered opinion that the appellant was granted 4 months' leave on private affairs w.e.f. 1‑1‑1979 to 20‑4‑1979, which was extended from time to time upto 28‑8‑1981. The last extension was made subject to the condition that no further extension will be granted and he would resume his duty on 29‑8‑1981. However, the appellant failed and in spite of notices and show cause notices, instead of resuming the duty, used delaying tactics by resorting to further applications for leave on medical grounds. The appellant was directed to appear before the Medical Superintendent, but he failed to appear and the so‑called medical certificates of the appellant were returned by the Medical Superintendent, that the appellant did note appear before him. In such a situation the appellant is guilty of wilful default and absence from duty without leave of the competent authority. He is a chronic case of absence as well as indisciplined. We have found no ground to interfere with the impugned orders which are fully justified. Accordingly the appeal is dismissed in limine. There will be no order as to costs.

A.E.

Appeal dismissed.

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