1995 PLP (C (PLC(CS))

MUHAMMAD ILYAS LODHI (MEMBER).‑‑‑The appellant was serving as Sepoy in the Office of Assistant Collector, Central Excise and Sales Tax, Multan. On 19‑11‑1985 he absconded from his duties and the departmental authority did not take any action against him till 27‑3‑1994 when major penalty of removal from service was imposed against him with effect from 19‑11‑1985, the date from which the appellant had absconded from his duties. The appellant filed departmental appeal on 23‑4‑1994 which was rejected on 31‑5‑1994. He has come with the present appeal under section 4 of the Service Tribunals Act, 1973 for setting aside the impugned order dated 27‑3‑1994 and prays for reinstatement in service.

2. We have examined the record and heard both the parties. Learned counsel for the appellant has contended that the orders of removal from service of the appellant are void as the same had been issued with retrospective effect. In support of his contention he relied upon Supreme Court 1985 SCMR 1178: According to him there was no speaking order regarding rejection of appeal as per decision of the Supreme Court 1991 SCMR 2330 wherein it was laid down that the department appeal should be rejected with reasoning. He has also argued that in this case full inquiry was not conducted as require under the rules and 1993 SCMR 603 is sufficient to declare the order as void and of no legal effect. He has further argued that was not afforded full opportunity to defend himself.

3. The respondent's learned counsel has failed to cite any case‑law on the question involved in the present case. He has, however, contended that the appellant was transferred and posted in the office of Assistant Collector Central Excise and Sales Tax Zonal Office, Multan under order dated 19‑11‑1985 but he did not comply with the transfer orders and absconded himself from duty without prior intimation or application etc. the approached Central Board of Revenue Islamabad to allow him to join duty but after lapse of nine years he did not report for duty at the office. It is astonishing that after lapse of nine years the respondents did not take any action against the appellant that he had absconded from duty.

4. It is admitted fact that the appellant who is alleged to have absconded since 19‑11‑1985 but the respondent did not take any action in respect of his long absence from duty till he was removed from service vide impugned order dated 27‑3‑1994 despite the fact that under Fundamental Rules, it is mentioned that whoever remains absent or absconded over five years a ceases to be a civil servant. Even otherwise if somebody is absent, the Department should initiate disciplinary proceedings against him immediately and if `tie does not participate in the proceedings ex parte decision is taken. Bums 's case for dull nine years no action appears to have been taken by the respondent? Department except the last order issued 'by" them on 27‑3‑1994. In view of the above we are of the view hat the impugned order is void as it was issued on 27‑3‑1994 giving a retrospective effect. The department appeal was rejected without giving any detailed reasons. No full inquiry was conducted according to law and full opportunity was not afforded.

5. We under the circumstances accept the appeal, set aside the impugned order dated 27‑3‑1994 an reinstate him in service with consequential benefits. However, under the rules if permissible the Department may initiate fresh proceedings against him in the light of the observations made above. No order as to costs. NOOK MUHAMMAD MAGSI (MEMBER), ‑‑‑ have had the benefit of going through the judgment proposed by my learned brother Mr. M. Ilyas Lodhi, Member but I do not subscribe to the findings recorded by him and I have different view looking to the facts of. this case. From the record, it is crystal clear that the appellant right from 19‑11‑1985 was neither here nor' there and his absence from duty is proved beyond and shadow of doubt. The conduct of the appellant also speaks that he was no" at all interested in service and had he been so, he should have approached the departmental authorities for redressal of his grievance because he was not drawing any salary and it is unbelievable that in these hard days a low paid Government servant can afford to live in without money. His long silence speaks of his conduct or misconduct that was busy somewhere else and earning his livelihood. The record also bears out that the appellant, tendered his resignation by giving 14 days notice on 4‑7‑1985 but that was latter on withdrawn. He was transferred by order dated 17‑10‑1985 from Bahawalpur to Circle‑I, Multan and he was accordingly relieved of his duties by order dated 22‑10‑1985. He was thereafter posted to Zonal Office, Multan and was relieved on 19‑11‑1985, but he disappeared and did not join duty. It goes to prove that he wanted posting of his choice and when failed to get such posting, he deserted from duty as he was not interested in the service and after the expiry o five ears he ceased to remain in the Government service under PE‑18 and this view derives strength from the Supreme Court judgment reported T 1990 SC 666 (Mst. Maryam Younus v. Director of Education Cantt. GHQ). He did not come to the Tribunal for seeking his legal remedy but instead approached the CBR by making an application to the Member, who was neither his appointing authority nor the appellate authority and succeeded in getting alive his case, and the Second Secretary, CBR vide letter dated 21‑12‑1993 directed him to appear before the Collector of Customs, Multan. Since it was a case of admitted absence from duty, disciplinary proceedings under Rule 5 of the E&D Rules were initiated against the appellant and he was served with a show cause to which he replied but he could not produce any documentary evidence with regard to his allegations that he was running from one office to another but was not allowed to join duty, and the authority not being satisfied with his explanation, passed the order of removal from service from the date he was absent from duty. The contention of the appellant that the impugned order could not be passed retrospectively, but the fact is that the appellant was wilfully absent from duty from 19‑11‑1985 and all this period had to be treated as extraordinary leave without ay, therefore, giving effect to the impugned order removal‑retrospectively‑‑‑does not make the order void, particularly in the circumstances when the absence of 9 years is admitted and facts and circumstances of each case have to be seen in its entirety when it can be rectified by us. I, therefore, hold that the appellant remained absent from duty with effect from 19‑11‑1985 wilfully and he has not been able to justify his absence for nine years, for which he deserved the punishment on account of gross misconduct and has rightly been awarded the penalty of removal from service, but the impugned order of removal shall take effect from 27‑3‑1994 and the period from 19‑11‑1985 till 27‑3‑1994 shall be treated as absence from duty. For the aforementioned reasons, I would dismiss this appeal with costs. ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑This appeal has come up before me under section 3‑A of the Service Tribunals Act, 1973 as there is difference of opinion between the learned Members. Mr. M. Ilyas Lodhi, Member who has initiated the leading judgment allowed the appeal, while the other Member Mr. Noor Muhammad Magsi, has dismissed the appeal.

2. I have gone through the proposed judgments of my learned brothers. The allegation against the appellant was that he remained absent from duty for about nine years without any sanction. The learned Member Mr. M. Ilyas Lodhi has allowed the appeal on technical grounds that regular inquiry under Rule 6 of E&D Rules was not conducted, and Department failed to initiate disciplinary proceedings immediately whereas Mr. Noor Muhammad Magsi, has dealt with this matter according to law and on merits and has based his findings on the judgment of the Supreme Court. It is incumbent upon every civil servant first to get the leave sanctioned and then he could proceed on such leave. In this case, the appellant without any cogent reasons remained absent for about nine years. One of the grounds taken by Mr. M. Ilyas Lodhi is that the department after nine years initiated the departmental proceedings against the appellant, and that he may be reinstated with back benefits but I am sorry I do not agree. Although the department should have been vigilant in initiating the disciplinary proceedings promptly, but this cannot be a ground to give the appellant relief for his irresponsible attitude and long absence of nine years. With regard to retrospective effect, when the position is admitted that the appellant was not attending the office since 1985, the interpretation of the case‑law that no one could take effect retrospectively to be interpreted in the spirit of factual position. The absence is admitted from 1985 the order will naturally take effect from date of absence, and for such a long absence of nine years he could not arid cannot be given any consequential benefits with regard to salary. Therefore, the effect of mere technicalities cannot make the order illegal. However, Mr. Noor Muhammad Magsi has dealt with this point. The other ground on which Mr. M. Ilyas Lodhi, learned Member has allowed appeal is that regular inquiry was required, but in my humble view, when the facts are admitted, no regular inquiry is necessary and proceedings could be taken under Rule 5 of E&D Rules, and this, view is in consonance with the Judgment of the Hon'ble Supreme Court in Civil Appeal No. 312 of 1993, filed by Nawab Khan, against the decision of this Tribunal in Appeal No. 231‑R of I 1992. I, therefore, agree with the findings record by Mr. Noor Muhammad Magsi, Member, and I also dismiss this appeal with costs. ORDER OF THE TRIBUNAL By virtue of clause (b) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973, the appeal is dismissed in terms of opinion of the Chairman. H.B.T./1017/Sr.F ??????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.