2008 PLP (C (PLC(CS))

RASHID MAHMOOD ANSARI (MEMBER).

The instant appeal has been filed against the impugned order dated 28-4-2004 whereby the penalty of removal from service was imposed upon the appellant under the Removal from Service (Special Powers) Ordinance, 2000.

2. Briefly stated, the facts of the case are that the appellant was, initially recruited as Assistant Executive Engineer in the MES, B/R Branch on 15-7-1970 and was promoted as XEN w.e.f. 5-12-1977. At the Government expense, he was sent to Canada in 1988 from where he obtained Master of Engineering Degree. In 1997 he again proceeded to Canada, though this time at his own expense, to do his Ph.D. and for this purpose he was granted ex-Pakistan leave w.e.f. 15-7-1997 to 14-8-2000, which was subsequently extended up to 31-7-2002. While he was abroad, a meeting of the Selection Board was held on 11-10-2000 to consider promotion to the post of Executive Engineer. The appellant was not considered but his juniors were promoted. The appellant made a representation but he was informed by the respondent-Department vide letter dated 15-12-2000 that he would be considered for promotion on his return after he had earned at least one A.C.R. He submitted an application dated 9-5-2002 for premature retirement from service w.e.f. 31-7-2002 under the provision of section 13 of Civil Servants Act, 1973 read with C.S.R. 465-B. His request for premature retirement was formally rejected by respondent No.2 vide letter dated 9-4-2003. The appellant made number of representations against the rejection of his request but it was of no avail.

3. Since the appellant had not rejoined his duties on 1-8-2002 after the expiry of ex-Pakistan leave, the competent authority (Defence Secretary) issued him a show-cause notice, dated 3-12-2003 through the Pakistan High Commission in Ottawa (Canada). The appellant claimed not to have received the said show-cause notice. However, according to the information conveyed by the Pakistan High Commission to the respondent-Department, the appellant had refused to accept the show-cause notice. The competent authority proceeded ex parte and imposed the major penalty of removal from service on the appellant vide impugned order, dated 28-4-2004. The appellant claims to have filed departmental representation dated 28-5-2004 which remained unresponded. The instant appeal was filed on 13-9-2004.

4. The learned counsel for appellant submitted that the appellant fulfilled. all the conditions for seeking premature retirement as specified in C.S.R. 465-B and the ESTACODE 2000 (Sl. No.1 at page 853) according to which a Civil Servant could exercise the right to seek premature retirement on a retiring pension after completing 20 years qualifying service, provided he gave a three months' notice before the date on which he intended to retire and there were no departmental proceedings against him. The learned counsel argued that the appellant had 32 years of service at his credit, no departmental proceedings were pending against him and he had given a proper notice for retiring prematurely. According to the learned counsel, the fact that the appellant had applied for premature retirement while still on ex-Pakistan leave, did not stand in his way and he cited the apex Court's order dated 10-9-2004 in Civil Petition No.840 of 2003 (the Federation of Pakistan through M/o Foreign Affairs, Islamabad v. Mubeen Hussain and another) whereby the Apex. Court had upheld the FST's judgment 27-2-2003 in Appeal No.2453(R)CS of 2002 according to which the respondent (Mr. Mubeen Hussain) was allowed to retire from service while he was still posted at New York in the Embassy of Pakistan.

5. The learned counsel for the respondents submitted that the appellant's request for premature retirement had been rejected since he was on ex-Pakistan leave while he made the request for premature retirement and the L.P.R. could not be allowed to him while still on ex-Pakistan leave. According to him, the appellant was required to rejoin his duty on 1-8-2002 after the expiry of ex-Pakistan leave and then apply for premature retirement. He also stated that the contention of the appellant that he had not received the show-cause notice dated 3-12-2003 is not tenable since the Pakistan High Commission, Ottawa had confirmed to the respondent-Department that the appellant had refused to receive the show-cause notice. The learned counsel also argued that the instant appeal was not maintainable since it was barred by 40 days.

6. In rebuttal, the learned counsel for appellant stated that the instant appeal was barred by about 15 days but there was a cogent reason for this delay since, as indicated in the application for condonation of delay, the appellant was abroad and he had to come to Pakistan to file this appeal which caused the delay of a few days. He also cited the dictum of the Honourable Supreme Court of Pakistan in the case reported as 2003 PLC (C.S.) 796 in which it was laid down that the decision of the cases on merits always to be encouraged instead of non-suiting the litigants for technical reasons including on limitation.

7. We have heard the learned counsel for the appellant as well as the respondents. We have also perused the record.

8. While still on ex-Pakistan leave, the appellant had applied for premature retirement by 31-7-2002 vide his applications dated 9-5-2002. We find force in the argument of the learned counsel for appellant that the appellant met the pre-conditions for seeking premature retirement as specified under section 13(1)(i) of the Civil Servants Act 1973, and C.S.R. 465-B. The ESTACODE 2000 (Sl. No.1, Page 853) specified the said preconditions as under:

Subject to the provisions of Essential Services Maintenance Act, all Government servants shall have the right to retire on a Retiring Pension after completing 25 years qualifying service (reduced to 20 . years vide Civil Servants (Amendment) Ordinance 2001 dated 4th August, 2001); provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation once submitted, shall be final and shall not be allowed to be modified or withdrawn. The right given by this paragraph shall not however be available to Government servant against wham a departmental enquiry is pending.

9. As against the requirement of 20 years of qualifying service, the appellant had completed 32 years. No departmental proceedings were pending against him. And, he had given the requisite notice of his intention to seek premature retirement w.e.f. 31-7-2002 though, not exactly three months in advance, but any shortfall of days in the notice could have been met by adjusting the date of retirement accordingly. Barring this slight adjustment in the actual date of retirement, the, appellant met the conditions precedent to his premature retirement inasmuch as that he had completed 20 years of qualifying service, had given the requisite notice of his intention to seek retirement and no disciplinary proceedings were in the field against him. In the absence of any specific rules barring a civil servant from seeking premature retirement, while on ex-Pakistan leave, he can seek premature retirement subject to the conditions as laid down in the ESTACODE.

10. The contention of the respondents is that the request of the appellant for premature retirement was not valid on the ground that he could not be allowed to proceed on LPR while still on ex-Pakistan leave. Since the respondents have failed to indicate any rule in support of their contention we cannot take cognizance of this argument. Also the contention of the respondents, as in their parawise comments, that their rejection of the appellant's request was based on C.S.R. 198 is void ab initio since the said C.S.R. that after 5 years continuous absence whether with or without leave, an officer is considered to be out of Government employee, had ceased to remain in force vide S.R.O. 38(KE)/28 Islamabad dated 11-2-1998 which was published in the Gazette of Pakistan, Extr. Pt. II. P. No.404 dated March 31-3-1998.

11. As regards the question of limitation raised by the respondents, it may be stated here that the appellant had submitted his departmental-representation dated 28-5-2004 against the impugned order dated 28-4-2004. He was required to make a departmental representation within 15 days from the date of communication of the order. We are of the opinion that the limitation is to be reckoned not from the date borne on the impugned order but from the date of its receipt by the appellant. It is understandable that since the appellant was living in Canada at the time, it may have taken more than a week for the order to reach him. As regards the delay in filing the appeal in, this Tribunal, we find force in the plea of the appellant that the delay was owing to the fact that he had to come from abroad to file this appeal. Keeping in view the fact that the appellant has a strong case on merits, we condone the delay.

12. The foregoing in view the appeal is accepted and the impugned order dated 28-4-2004 is set aside. The respondents are directed to process the case of premature retirement of the appellant on the basis of his application dated 9-5-2002.

13. No orders as to costs.

14. Parties be informed. H.B.T./31/FST Appeal accepted.