2010 PLP 302 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C J.

This petition has been filed under Article 212 of the Constitution of the Islamic Republic of Pakistan, for leave to appeal against the judgment dated 29-6-2009. Relevant para therefrom reads as under: "Reading of the charge-sheet/statement of allegations and reply of the appellant, establish absence from duty. Civil servants are not expected to absent themselves from duty without getting the leave sanctioned. Surely, unauthorized absence constitutes misconduct. The Honourable Supreme Court in case reported as 2004 PLC (CS) 744 held as follows: "We may mention here that there is no "automatic process" to get the leave sanctioned but the procedure as contemplated in the Revised Leave Rules, 1980 must be followed to get the leave sanctioned otherwise the leave availed without getting it sanctioned would be equated to that of wilful absence amounting to misconduct." The departmental authority proceeded against the appellant against his established absence. However, keeping in view his past service and mitigating circumstances, the impugned penalty of dismissal from service is modified to compulsory retirement."

2. The petitioner/department initiated departmental proceedings against the respondent for having absented from duty details whereof were given in the charge sheet and the statement of allegations. Reply was submitted by the petitioner which is reproduced hereinbelow:-- "In year 1997, my only Nephew died in the age of 45 in village Chak 99 due to Heart attack. He has been indulged in false murder case and Honourable Court order his free. Due to this false case he was heart patient and ultimately dies. After the death of my father he was the only family member in village looking after agricultural land. And after his death local people and family members started creating problems to our families. This was great loss to my family and me as he was the only person in village to look after our village matter and agricultural land of about two and half Morabba. He was Number Dar of the village and also look after a Government land (Ghori Pal Morabba). He has only one kid of 7 years old who could not manage these matters. People of the area/localities start great problems by land capturing, distorting cultivated land. Mean while some person of my family started to intervene in my family matter and started torturing me through my wife and kids. This was again great shock to me and I could not perform my duties regularly and effectively with peace of mind, but I continuous with hope, that some day my Allah help me and solve my problems. Due to my family problems/mental tension I got 2nd marriage to get mental satisfaction, which was my religious right. To solve all problems my presence in village was must. I have to be present in village to look after my cultivated land and followed the Court cases. I have to train and search for an honest person to look after my land and help my family in my absence." Inquiry was conducted and vide inquiry report dated 1st October, 2003 respondent was found guilty of remaining absent from duty and recommendations were made for his dismissal from service under Removal from Service (Special Powers) Ordinance, 2000 with immediate effect. The department issued a show-cause notice to the petitioner and ultimately vide order dated 12th November, 2003 he was dismissed from service. Appeal filed before the appellate authority was rejected on 12th. December 2003 as such a writ petition was filed in the Lahore High Court, Rawalpindi bench which was also dismissed as the petitioner wanted to avail opportunity before the Service Tribunal. Accordingly appeal was filed before the Service Tribunal which was allowed vide the impugned judgment relevant para of which has been reproduced hereinabove.

3. Learned counsel for the petitioner stated that the members of the Tribunal on having concluded that absence from duty established against the respondent, had no lawful authority to allow the appeal by keeping in view his past service and mitigating circumstances. On the other hand respondent has stated that he could not attend the office for the reasons which he has already mentioned in the reply of the charge sheet, therefore, the Service Tribunal had granted relief to him in peculiar circumstances of the case.

4. We have heard the learned counsel for petitioners as well as respondent in person and. have gone through the relevant record reference whereof has been made hereinabove.

5. It is quite surprising that the service Tribunal on declaring that the absence of respondents from duty was established assumed jurisdiction to modify the penalty of dismissal from service to the compulsory retirement. No doubt under section 5 of the Service Tribunals. Act, the Tribunal enjoys powers to modify any order but such power is to be exercised judiciously. It is a case wherein the penalty has been imposed by the departmental authority on the basis of established charge that the respondent was absent from his duty and the major penalty of dismissal from service was imposed upon him according to the relevant law and rules, we fail to understand that from where the Tribunal has derived the authority to exercise in favour of the respondent and it seems that without any lawful authority the appeal has been allowed in a manner which is not. permissible under the law.

6. The Courts/tribunals seized with the matter are required to pass order strictly within the parameters of the Constitution and the law and the rules and have no jurisdiction to grant arbitrary relief in favour of any person. Therefore we are of the opinion that the observation of the Service Tribunal which is incorporated in the judgment in two lines is without any reason, law on the subject, as well as under the rules, is not sustainable. Had the members of the Tribunal decided to do so they could have referred the, previous record of the respondent to show indulgence; whereas fact is that past service record of the respondent has been mentioned in one of the grounds of the charge-sheet that "it is further noted that during your service three Warnings/Discipline violation letters' dated 27-4-1992, 14-12-1992 and 16-8-2001 were issued to you on account of your un-authorized absence." Therefore, we are of the opinion that in such view of the matter members of the Service Tribunal had exceeded their authority in granting the relief to the respondent thus the order is not sustainable in law. As a result whereof this petition is converted into appeal and allowed. Impugned judgment is set aside. Parties to bear their own costs. M.H./C-13/S Appeal allowed.