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---R.6(3)--Letter No. S.O.(Admn.III)1.113.82, dated 23rd April, 1983--Employee sent abroad on deputation for specified time--Such employee overstaying beyond specified time--Employee not called back by Department after expiry of specified time as per terms of deputation- Omission in calling back employee to join duty in his parent Department, held, would imply extension of period of deputation by tacit approval much Department.

---S. 4--Punjab Civil Service (Efficiency and Discipline) Rules, 1975, R.6 (3)--Appellate jurisdiction, exercise of--Removal from service- Deputationist overstaying after expiry of specified period--Omission of Department not requiring deputationist to join parent Department, held, would not justify removal of such employee from service--Punishment of removal being harsh was set aside by Service Tribunal in appellate jurisdiction--Appellant was directed to be re-instated in service.

Sardar Ali Chaudhary for Appellant.

A.G. Humayun, District Attorney for Respondents.

Zahid Beg, ex-Physiotherapy Aid, Mayo Hospital, Lahore has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein he has impleaded the Medical Superintendent, Mayo Hospital, Lahore and the Deputy Medical Superintendent, Mayo Hospital, Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugned order, dated 2-8-1983 passed, by the Deputy Medical Superintendent, Mayo Hospital, Lahore, respondent No. 2 and the order, dated 22-10-1983 passed by the Medical Superintendent, Mayo Hospital, Lahore, respondent No.l be set aside. It has also been prayed by the appellant that he be declared to be continuous in service with all the back benefits of service/ remuneration, etc.

3. Brief facts of the case are that the appellant was appointed as Physiotherapy Aid w.e.f. 4-4-1964 and was so appointed in the Mayo Hospital, Lahore from the order date. The appellant served as such in the Mayo Hospital. Lahore. The appellant was sent on deputation to the Government of Libya for a period of two years in the first instance, vide order, dated 28-11-1972 of Government of the Punjab, Health Department (details at Annexure 'A'). However, ft continued to serve with the Government of Libya and came bade to Pakistan in May, 1982. According to the contention of the appellant, on return to Pakistan he reported for duty and contacted the Health Department/ Departmental Authorities number of times but his joining report was not honoured as Miss Bushra Nazir had been appointed against his post, on leave vacancy. To accommodate this lady, he was kept off the duty. However, the Government of Punjab, Health Department intervened and issued a direction vide letter No. SO. (Admn-III) 1-113/82, dated 23-4-1983 to the Medical Superintendent, Mayo Hospital, Lahore to take the appellant on duty from 26-3-1983. Consequently the appellant was taken on duty. A show-cause notice under rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1975 was served on the appellant vide letter, dated 13-6-1983 (Annexure 'A/2') of Deputy Medical Superintendent, Mayo Hospital, Lahore, on the following allegations:--

"On the expirty of two years deputation period you were due to resume your duties in this hospital on 5-12-1974. But you did

not turn up on due date. You reported your arrival on 26-3-1983 and thus you remained absent from your duties for the period from 5-12-1974 to 25-3-1983 (8 years 3 months and 20 days) unauthorisedly without any intimation or authority."

But, the contention of the appellant has been that according to the terms and conditions Nos. 1 and 8 of his deputation order, dated 28-11-1972, issued by the Health Department, Punjab, it was for the Government of Punjab, Health Department to ask the appellant to return for duty to Pakistan and extend /terminate his deputation. As the Health Department did not call him back, it was, therefore, implied that Government of the Punjab had allowed him to continue working till he was relieved by Libyan Government. It has been further contended by the appellant that he was employed by the Libyan Government and he was at the mercy of that Government and could not leave that country unless he was relieved by the said Government. He has submitted that he was relieved by the Libyan Government in May, 1982 and immediately, thereafter, reported himself for duty to his departmental authorities. However, he was not taken on duty till 26-3-1983, unless ordered by the Punjab Health Department. The appellant submitted his reply to the above show-cause notice. The Deputy Medical Superintendent, Mayo Hospital, Lahore considered his reply to show-cause notice and removed the appellant from service with immediate effect vide his order, dated 2-8-1983. The period from 5-12-1974 to 25-3-1983 was treated as absent from duty. The appellant filed an appeal to the Medical Superintendent, Mayo Hospital, Lahore which was 'not upheld' vide his order, dated 22-10-1983. The appellant filed this appeal to the Tribunal on 20-11-1983. Hence this appeal.

4. I have heard the parties i.e. 'Mr. Sardar Ali Chaudhry, Advocate for the appellant and Mr. A.G. Humayun District Attorney assisted with the representative of the respondents, on behalf of the respondents.

5. It has been submitted by the learned counsel for the appellant that the appellant went on deputation to Libyan Government for two 'years under the term and conditions as laid down in the Punjab Government, Health Department's letter, dated 28-11-1972 (Annexure 'A'). The appellant continued working with the Libyan Government under the impression that as the Government of Punjab, did not call him back, the Punjab Government, as per terms and conditions Nos. 1 and 8 of his deputation order, dated 28-il-1972, had allowed him to continue to work with the Libyan Government, being a low paid employee. The learned counsel for the appellant has also relied on the Government of Punjab, Health Department order, dated 23-4-1983 (Annexure 'H') addressed to Medical Superintendent, Mayo Hospital, Lahore. The paras. 2 and 3 of which read as below:-

"Mr. Zahid Baig proceeded on deputation to Libya from your Hospital and it was for you to direct him to join duty soon after the expiry of deputation period. After lapse of considerable period you ask him to report vide your letter No.EC/7380/MH, dated 28-3-1983 irrespective of the facts that action under E&D Rules must have been taken by you early.

Mr. Zahid Baig, Physiotherapy Aid, has submitted report to this Department on 26-3-1983 and as such you may please take him on duty from this date. You are also directed to initiate disciplinary action against him under intimation to this Department as you are competent in this case."

It has been pointed out by the learned counsel for the appellant that this order of the Government makes it quite clear that the appellant continued working with the Libyan Government with the blessing and approval of the respondents Punjab Health Department. Thus treating the appellant absent from duty during the period when he was on deputation abroad with the Libyan Government is arbitrary and without any foundation. The learned counsel for the appellant has also submitted that when the appellant came back, he was not immediately allowed to join duty by the departmental authorities as Miss Bushra Nazir had been accommodated by them against his post, on the leave vacancy. It was only with the intervention of the Punjab, Health Secretariat that the appellant was allowed to join duty. Thus, it is clear that the post of the appellant was kept vacant for him, being on deputation, by the Department and the temporary incumbent of his post was treated to have been working against leave vacancy and not on regular basis. This fact confirms that the appellant has been on deputation throughout the entire period with Libyan Government with the approval of the Departmental Authorities/ Health Department, Government of the Punjab.

6. Concluding his arguments it has been submitted by the learned counsel for the appellant that this matter was such which needed thorough examination of the departmental authorities but strange procedure has been adopted by them by issuing a show-cause notice under rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1975, to the appellant, summarily. Actually, all this had been done to hide their negligence by the departmental authorities, as pointed out by the Health Department, vide order, dated 23-4-1983, referred to in para. 5 above and they have tried to cover their own delay and fault by punishing the appellant arbitrarily. The appellant's counsel has prayed that orders of removal from service of the appellant issued by the Deputy Medical Superintendent, Mayo Hospital, Lahore and upheld by the Medical Superintendent, Mayo Hospital, Lahore, are against the facts of the case, have been passed without applying due mind by them, are unlawful and be quashed.

7. On the other hand, the learned District Attorney has relied on the parawise comments submitted by the respondents and has submitted that the appellant has over-stayed in Libya, for about 8 years beyond the specific period of deputation sanctioned by the Government. Thus, he is guilty of misconduct of wilful absence which stood duly proved against the appellant. Hence, he has been punished correctly, lawfully and no exception can be taken against the impugned orders.

8. I have given my anxious thought to the arguments of the parties and have perused the record of this case carefully. The perusal of the record shows that the case of the appellant has not been dealt with properly by the Departmental Authorities and due mind has not been applied in deciding the issue involved. The contention of the appellant's counsel is that appellant was not called back by the respondents after/ the expiry of his first two years' deputation with Libyan Government and according to the terms and conditions Nos. 1 and 8 of his deputation, issued by the Secretary to the Government of Punjab, Health Department, vide his letter, dated 28-11-1972 (Annexure 'A'), it implied that the deputation period stood extended by his parent Department. I am inclined to agree with this contention of the appellant's counsel as letter No. SO (Admn-III)I-113/82, dated 23rd April, 1983 issued by the Government of the Punjab, Health Department, to the Medical Superintendent, Mayo Hospital, Lahore confirms the same. This letter is reproduced below:-

"Reference your letter No. EC 1/10082/MH, dated 11-4-1983 on the subject noted above.

Mr. Zahid Baig proceeded on deputation to Libya from 'your Hospital and it was for you to direct him to join duty soon after the expiry of deputation period. After lapse of considerable period you ask him to report vide your letter No.EC / 7380/MH, dated 28-3-1983 irrespective of the fact that action under (E&D) Rules must have been taken by you early.

Mr. Zahid Baig, Physiotherapy Aid, has submitted report to this Department on 26-3-1983 and as such you may please take him on duty from this date. You are also directed to initiate disciplinary action against him under intimation to this Department as you are competent in this case."

It is quite clear from the above letter that the authorities of the Mayo Hospital did not call 'back the appellant and thus continuance of the E appellant with the Libyan Government had tacit approval of the authorities of Mayo Hospital.

9. I have also gone through the letter, dated 18-4-1982 A.D. issued by Acting Secretary of the People's Committee for Health, Libya (Annexure 'B' . with the written arguments of the appellant) which confirms, the appellant had been working in Libya with them.

10. The appellant was a low paid employee. He was a permanent employee. However, the above circumstances necessitated and required that a proper probe into the matter should have been made by the respondents as the claim of the appellant had been that he remained in Libya for the entire period with the implied consent and approval of the Departmental Authorities as they never took any exception to the stay of the appellant in Libya. His post, was kept vacant throughout and no appointment was made on regular basis, against his vacancy. When he came back and reported for duty in May, 1982, he was not allowed to join (unless intervened by the Government of the Punjab, Health Department) as Miss Bushra Nazir had been appointed against this post, on leave vacancy and thus, he was made unnecessarily a shuttle cock for a considerable period by the respondents, to accommodate Mass Bushra Nazir against, his post.

11. Above facts and history of the case reveal that the respondents as well as the appellant are responsible for the lapse. The appellant presumed extension of his deputation period with Libyan Government by the implication on the basis of the terms and conditions of his deputation issued by the Punjab Health Department, vide letter, dated 28-11 1972. On the other hand, the respondents did not direct the appellant to come back after the expiry of first deputation period in the year 1974 and they kept quiet for years together. The letter, dated 23-4-1983 of the Government of the Punjab, Health Department (referred in para. 8 of this judgment) clearly mentions that the Medical Superintendent, Mayo Hospital. Lahore, after lapse of considerable period asked the appellant to report vide his letter No. EC/7380/MH, dated 28-3-1983, when the appellant had already reported, to the,., Health Secretariat for duty on 26-3-1983.

12. Under the circumstances of the case, I hold that the respondents have dealt the case of the appellant in haste, without due application of mind and the appellant has been treated harshly while imposing punishment on him

13. The upshot of the above discussion of the case is that the appeal is accepted, impugned orders, dated 2-8-1983 and 22-10-1983 of respondents Nos. 2 and 1, respectively, are set aside. The appellant l) is re-instated in service. However, the period from 5-12-1974 to 25-3-1983 and from the date of the removal from service of the appellant i.e. 2-8-1983 till the date of re-instatement, shall be treated as extraordinar leave, without pay.

There is no order as to costs.

A. A. Appeal accepted.

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