2013 PLP 903 (SCMR)

AMIR HANI MUSLIM, J.

Leave was granted by this Court, vide order dated 6-6-2012, inter alia on the ground as to whether the conclusion recorded by the Tribunal, that the departmental appeal preferred by the appellant was beyond the prescribed period of limitation, was based on proper appreciation of relevant record.

2. In this respect the learned counsel for the appellant has contended that the appellant filed the departmental appeal on 19-8-2001 and consequent thereto, he, through his counsel, also sent a notice to the department on 29-10-2001. The department did respond to the notice by its letter dated 3-12-2001 denying to have received the memo of appeal. According to the learned counsel for the appellant, the appellant, thereafter, sent a letter to the department enclosing a copy of the memo of appeal dated 19-8-2001. He submits that the appeal was filed on 19-8-2001, which fact is also reflected from para 3 of the appellant's letter dated 10-12-2001. He further submits that this aspect of the case has not been taken note of by the Tribunal while passing the impugned judgment on the issue that the appeal before the department was barred by time.

3. As against this, the learned counsel for the Department has contended that departmental appeal was filed by the appellant on 20-12-2001, and not on 19-8-2001, as per the record.

4. We have heard the learned counsel for the parties and have perused the record. We have noticed that the counsel for the appellant has produced a postal receipt before us which is also dated 19-8-2001. The postal receipt, coupled with letter of the appellant and the reply thereto, prima facie, reflects that the departmental appeal was filed on 19-8-2001. We, therefore, hold that the departmental appeal was filed within the time.

5. On merits, the Department has regularized the leave of the appellant from 16-4-2001 to 11-7-2001 by its letter dated 25-7-2001. In the intervening period, the Department has also issued a charge sheet dated 23-5-2001 by which the appellant was charged as under:-- "It has been reported by the S.E. City Circle Rawalpindi that you are absent from duty w.e.f. 22-4-2001 without prior sanction of leave. According to the Authority's instructions before availing of any kind of leave prior sanction of leave is mandatory, but you did not do so and absented yourself at your own will."

6. It is also an admitted position that the appellant was under medical treatment with WAPDA hospital. Under these circumstances, on the one hand the Department has issued the aforesaid charge sheet to the appellant on the ground of his absence from 22-4-2001 onwards and, on the other hand, it has also regularized his leave. Once the leave has been regularized, there was nothing against the appellant on record to penalize him and/or impose penalty of any nature impugned through these proceedings. The reasoning of the department and/or the Tribunal while affirming the findings of the departmental appeal are not in conformity with the record. The order of the department imposing major penalty was passed in haste, overlooking the material on record. The appellant was granted personal hearing on 11-7-2001 and on the same day major penalty of compulsory retirement was ordered.

7. We for the aforesaid reasons, allow this appeal and order reinstatement of the appellant in service but remand the matter to the Department for considering the issue of back-benefit on merits after proper enquiry providing opportunity of hearing to the appellant. MWA/M-24/SC Appeal allowed.