2004 PLP (C (PLC(CS))

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 2-7-2001, passed by learned Punjab Service Tribunal, Lahore whereby the appeal preferred on behalf of petitioner has been dismissed and order, dated 19-8-1998 has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the appellant Mr. Tariq Mehmood was working as Sub-Engineer in Sargodha Zone of Irrigation Department, a diploma-holder. He obtained admission in the University of Engineering and Technology in B.Sc: Civil Engineering Course and applied for extraordinary leave for 4 years in 1988. The said leave was refused, but he did not join duty back. Consequently an enquiry was conducted and he was removed from service on grounds of wilful absence on 19-8-1998. He filed an appeal against impugned order (dated 19-8-1998) passed by the Senior Staff Officer, Irrigation Zone, Sargodha and the same was also dismissed by the appellant authority/Chief Engineer, Irrigation Zone, Sargodha on 7-12-1998". After exhausting the department remedies petitioner approached learned Punjab Service Tribunal by way of appeal which has been rejected, hence this petition. .

3. Mr. Ehsan Ullah Lilla, learned Advocate Supreme Court appeared on behalf, of petitioner had contended vehemently that the judgment impugned is contrary to law and facts which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the petitioner got admission in the University of Engineering and Technology to acquire higher education which aspect of the matter has been ignored by the forums available in the departmental hierarchy was well as the learned Service Tribunal and a serious prejudice has been caused against the petitioner. It is next contended that the order, dated 19-8-1998 whereby he was removed from service on the ground of wilful absence has been passed in utter violation of the directive of the Chief Minister Punjab by whom the period spent in Engineering University was treated as "study leave" and sanctioned without pay with the permission to rejoin duty as Sub-Engineer. It is next contended that the order passed by the Chief Minister should have been implemented in letter and spirit being Chief Executive of the Province and the petitioner should have been allowed to join duty as Sub-Engineer. It is argued that proper opportunity of hearing was not afforded to the petitioner the proceedings were initiated and finalized in oblivion rules and on this score alone the order, dated 19-8-1998 being law is liable to be set aside.

4. Miss Yasmin Sehgal, learned Assistant Advocate-General Punjab appeared for Government of the Punjab (caveator) and vehemently opposed the view-point as canvassed by Mr. Ehsan Ullah Lilla, learned Advocate Supreme Court on behalf of petitioner and supported the judgment impugned being free from any infirmity or illegality with the submissions that petitioner remained absent for more than ten years and leave for such a long period could not have been sanctioned by the Chief Minister which was done in violation of the relevant law and prescribed procedure. It is pointed out that the order, of Chief Minister was not in consonance with law, therefore, it could not be implemented being unlawful and passed on extraneous and political considerations.

5. We have carefully examined the respective contentions as agitated on behalf of the petitioner and for respondent in the light of relevant provisions of law and record of the case. The thrust of the argument of learned Advocate Supreme Court on behalf of petitioner is that in view of the order passed by the Chief Minister on 23-6-1996 -the leave was sanctioned as "study leave" without pay and as such there was no lawful justification to initiate further proceedings in this regard and the petitioner should have been allowed to rejoin his duties as Sub Engineer. We, have adverted to the said contention in the light of relevant record made available which is indicative /of the fact that petitioner remained absent for more than a decade and besides that no proper summary for grant of leave was ever moved by the department but on the contrary the leave was rejected by the Competent Authority. The order of Chief Minister appears to be sketchy and vague as no definite period has been mentioned therein for which leave was granted. The learned Advocate Supreme Court when asked as to whether any property summary was moved by the department, no answer could be given. It is thus evident that the order, dated 23-6-1996 passed by the learned Chief Minister was made on extraneous and political considerations which was not in accordance with law and being an unlawful order the question of its implementation did not arise. It is to be toted that Chief Minister has no unfettered or unbridled powers toy grant leave in oblivion of the leave rules and without giving proper relaxation which exercise was never undertaken by the office of Chief Minister and thus the order, dated 23-6-1996 is ab initio void having no 'legal sanctity of law. Leave can only be sanctioned in accordance with leave rules and by following the prescribed procedure which was not adopted in this case. It is also to be noted that the petitioner took admission in the Engineer University without having prior permission of his department which is mandatory. The petitioner could not acquire higher qualification from the Engineering University and thus the object for which he remained absent for more than ten years could not be achieved. The factum of willful absence amounting to misconduct has been proved. All the contentions agitated before this Court were dilated upon and considered in a comprehensive manner by the learned Service Tribunal in the judgment impugned, relevant portion whereof is reproduced hereinbelow of ready reference:-- "I have given my anxious thought to the lengthy arguments on both sides. The relevant record produced by the Departmental Representative was also perused meticulously. The appellant has that his leave had been refused at competent but fie did not join back duty and remained absent for about 10 years. It is also an admitted fact that he had got admission in the University of Engineering and Technology without departmental permission. There is force in the arguments of learned District Attorney that the orders of the Chief Minister regarding grant of extraordinary leave were vague as well as unimplementable since neither relaxation of rules to cover the absence had been granted nor the enquiry proceedings already in progress had been dropped. In view of these facts and circumstances of the case, the appeal is found without any merit and substance, the action taken by the respondent-Department, is confirmed and the appeal is dismissed. "

6. The conclusion as arrived at by learned Service Tribunal being well-based does not call for any interference. No injustice whatsoever has been done to the petitioner. Besides that no questions of law of public importance is involved in the matter on the basis whereof leave to appeal could be granted. The petition being merit less is dismissed and leave refused. M. H./T-1/S Leave refused.