2009 PLP 723 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner joined Government service in the Ministry of Information and Broadcasting (External Publicity Wing), Islamabad, on 21-8-1978 as Assistant (NPS-11). Later, he was appointed as Cypher Assistant (BPS-12) in the Ministry of Foreign Affairs, Government of Pakistan with effect from 5-12-1981. While posted at Pakistan High Commission, U.K., he was transferred back to Islamabad on completion of his tenure. He made an application for voluntarily retirement from service on 26-1-2003 which was not accepted and he was directed to join duty at Headquarters by 17-2-2003 positively. He was proceeded against departmentally on account of his unauthorized absence from duty without leave with effect from 1-1-2003. He was dismissed from service vide order dated 20-1-2004 and his absence from 1-1-2003 was treated to be leave without pay. He preferred Service Appeal No.644(R)(C.S.) of 2004 before Federal Service Tribunal which was dismissed, vide impugned judgment, dated 24-1-2008.

2. Learned counsel for the petitioner argued that on account of unavoidable reasons he could not return to country. Therefore, he made an application for premature retirement from service after his leave application was declined. The petitioner had performed very sensitive nature of duties at Pakistan High Commission, U.K. (London). His entire service record was unblemished. It was lastly argued that extreme penalty of dismissal from service was not warranted.

3. On the other hand, learned Deputy Attorney-General for Pakistan submitted that absence of the petitioner from duty after receipt of order of his transfer back to his country was an act prejudicial to service discipline which could not be countenanced. The long absence of the petitioner from duty without any leave constituted a misconduct for which penalty of dismissal from service under the Removal from Service (Special Powers) Ordinance, 2000 was justifiably imposed.

4. We have heard learned counsel as well as Deputy Attorney-General and have also perused the available record with their assistance. It is an admitted fact that the petitioner had applied for 5 years extraordinary leave commencing 20-1-2003. He also made a subsequent application on 26-1-2003 exercising his option for premature retirement from service. Therefore, in the peculiar facts and circumstances of the case, the extreme penalty of dismissal of the petitioner from service was disproportionate to his fault. It would meet the ends of justice if the same was converted into compulsory retirement from service.

5. For the foregoing reasons, this petition is converted into appeal and the same is partly allowed. The impugned judgment dated 24-1-2008, passed by the Federal Service Tribunal as well as order, dated 20-1-2004 of the departmental authority, are modified. The penalty of dismissal of the petitioner from service is converted into his compulsory retirement from service with effect from 1-1-2003. No order as to costs. M.B.A./R-9/SC Order accordingly.