1996 PLP (C (PLC(CS))

11. The appeal, on the other hand has vehementally been resisted, by the respondent vide comments so filed on their behalf. It has been contended that the position submitted on behalf of the, appellant was not correct. The factual position was that the appellant applied for grant of two years leave on account of illness of his wife and not for doing F.R.C.S. Neither he obtained such permission from authorities for doing F.R.C.S., nor did he intimate them about his studies in Saudi Arabia. Further that his request for extension in leave (Ex- Pakistan) was for the illness of his wife residing in UK which was rejected by competent authority, as it was not covered under the rules. Moreover, he had already availed about six years leave, whereas he worked for the Government only for a period of about 4 years. This was also intimated to his political recommendees, explaining to them that the said extension was not within the competence of Health Division. Since the Ministry was not competent to allow further extension of the leave, hence, the appellant was directed to report for duty on the expiry of said leave, vide letter dated 13-10‑1994. But the appellant did not pay any heed. Obviously he was served with show‑cause notice or 14‑2‑1994, in accordance with the E&D Rules, 1973. Instead of making a reply to show‑cause notice, the appellant again applied for extension in Ex‑Pakistan leave for two years, on account of the illness of his wife. Although his application was considered by the competent authority, nevertheless as it was not permissible under the rule it was regretted and he was directed vide letter dated 6th November, 1994, to join his duty not later than 20th November, 1994 failing which disciplinary action would be taken against him. However, he did not respond to that direction. Therefore, a summary for the Prime Minister was moved for imposing major penalty on the appellant of removal from service, as he was found guilty of misconduct in accordance with the rules, After the approval of the competent authority, he was removed from service on 14‑5‑1995.

12. As regards the contention that Dr. Ghazala was granted further extension in leave has been denied. However, extension in leave to Dr. Javed Ahmad‑II was granted for study for which he had submitted the requirements duly endorsed by the Embassy of Pakistan. Moreover, it was approved by Finance Division in relaxation of rules. As such the nature of leave was quite different from that of the appellant.

13. As regards the case of Dr. Stephen, it has been maintained that he joined his duty before removal from service. Hence his case was quite different froth that of the appellant.

14. We have heard both the parties at length and have gone through the documents and appellant's record before us.

15. The appellant joined the Federal Government Services Hospital as a Medical Officer on 5th February, 1984. He got married with one Sophia on 21‑3‑1986. Soon after his marriage, the chain of actions started. It appears that the parents of the wife of the appellant were permanently settled in UK, therefore, his wife too wanted to settle there in UK. It seems this urge on the part of his wife, that he applied for the first time for ex‑Pakistan leave for two years vide his application dated 8‑3‑1987 stating therein that he had some domestic problems, which he needed to solve simultaneously pursue his Post Graduation in the field of Audiology/ENT. This leave was granted to him vide Health Division's letter dated 30th April, 1987 with‑effect from 6‑5‑1987 to 17‑4‑1989. In this regard we give below the position of para. 9 of the Revised Leave Rules, 1980 to see how far, the appellant's present and future leave request was justified, and covered under the rules: "According to para. 9 of the Revised Leave Rules, 1980, extraordinary leave (without pay) can be granted up to the maximum period of five years at a time provided that the civil servant to whom such leave is granted has been in a continuous service for a period not less than 10 years, and in case a civil servant has not completed ten years of continuous service, then extraordinary leave without pay for a maximum period of two years can be granted at the discretion of the Head of his office."

16. The appellant on the expiry of leave, joined his duty on 18‑4‑1989. Again the appellant applied for ex‑Pakistan leave on 27‑6‑1989 to attend his ailing wife at London i.e. soon after the pause of little less than three months. This time his request was not entertained and rejected vide Ministry of Health letter dated 26‑7‑1989. However, he managed to obtain such a leave through a political pressure vide Health Division's letter dated 27th August, 1989, wherein it was stated "Health Minister has been pleased to allow extra‑ordinary leave (without pay) ex‑Pakistan for two years from the date of availing of Dr. Muhammad Anwar." He availed the leave w.e.f. 28‑8‑1989.

17. We have given above the position of para. 9 according to which only two years extraordinary leave could be given to the civil servant at a time, whose continuous service is less than 10 years. The appellant's total service in the Government Hospital is little more than four years. He already availed the ex‑Pakistan leave (without pay) for two years, the further ex‑Pakistan leave (without pay) for two years was not covered under the rules. The Ministry too was not competent ‑ to grant such a leave. However, it was done, it seems, under political pressure.

18. The appellant returned and joined his duties on 9‑9‑1991, once again he submitted leave application on I‑9‑1992 duly recommended by politicians, requesting therein to grant him extraordinary leave without pay (ex‑Pakistan) for two years to enable him to join his family in UK and that he would also perform Umra, on way to London. This application does not contain anything, regarding his intention to undertake his studies, which the appellant claimed later on. This leave too was granted to him vide Ministry of Health letter dated 16th September, 1992, i.e. w.e.f. 20th September, 1992 or from the date of availing to visit UK/Saudi Arabia, although like previous leave, this leave too was not covered under the rules. But pressure worked wonders. However, he availed the leave w.e.f. 30‑9‑1992.

19. Since the appellant had political power at his command, he left his office with effect from 1‑10‑1992, without permission from the Medical Superintendent who reported such a thing to the Ministry of Health vide his letter dated 10‑10‑1992 and also requesting therein to take necessary action against the doctor. But nothing happened. On the contrary, the M.S. was directed vide Ministry of Health letter dated 10th November, 1992 to obtain relinquishment report from the appellant and furnish to Ministry, which was done by the department vide letter dated 18‑11‑1992.

20. The appellant was to resume his duty after the expiry of leave, on the 1st October, 1994. He did not turn up but moved yet another leave application duly recommended by a politician for the grant of two years of extraordinary (ex‑Pakistan) leave without pay, on 5‑4‑1994; stating therein that his wife was seriously ill and unable to travel and that he was required to look after her and his two children. This leave application too does not mention if leave was required to do post graduate study, as claimed later on.

21. Since he did not join his duty after the expiry of leave, Medical Superintendent wrote to the Ministry of Health on 3‑10‑1994 that the appellant did not resume duty, he, therefore, be advised to report for duty immediately as the Hospital was facing great difficulties due to shortage of medical doctor.

22. In pursuant to Medical Superintendent's letter, the Ministry of Health sent a memorandum dated 13‑10‑1994, with the direction to report for duty, failing which disciplinary action would be initiated against him under the E&D Rules, 1973. Again the appellant was addressed a letter dated 6th November, 1994, to resume his duty immediately, but not later than 20th November, 1994, failing which action would be initiated against him under the prescribed rules.

23. The appellant instead of joining his duties, wrote back, insisting that, he should be granted further ex‑Pakistan leave, without pay for the period of two years.

24. The record shows that on continuous pressure of the appellant, the Ministry of Health took up the case with Ministry of Finance, on 26th December, 1994 and requested them to grant the appellant extension in leave (Ex‑Pakistan) for the period of two years with effect from 1‑10‑1994 as a special case and in relaxation of leave rules. The Finance Division responded vide letter dated 22nd January, 1995 advising Ministry of Health to submit a medical certificate of the appellant's wife duly endorsed by the Embassy, for their consideration.

25. In the meanwhile the appellant was served with the show‑cause notice on 14th February, 1995 on the grounds that he failed to resume his duty on 1‑10‑1994 on the expiry of two years leave ex‑Pakistan and that he failed to report for duty in spite of the notices issued to him vide Ministry memorandum dated 13‑10‑1994 and 6‑11‑1994, respectively.

26. He was directed in that show‑cause notice to submit the reply within 14 days of the date of issue of that notice as to why the major penalty of dismissal from service under the E&D Rules, 1973, should not be imposed upon him. He was further made clarified in the said memo. that if no reply was made within the specified period, an action would be taken against him ex pane under F,&D Rules, 1973.

27. The appellant responded this show‑cause notice vide letter dated 28‑2‑1995, stating therein that he could not resume his duty on 1‑10‑1994, or, the expiry of two years leave ex‑Pakistan due to illness of his wife, who was unfit to travel to Pakistan. Instead of indicating any date to resume duty, he requested in that letter to withdraw the show‑cause notice served upon, and to grant him two years extension in his extraordinary leave without pay for which had submitted his request on 18‑9‑1994. Anyhow his request for the extraordinary leave was not acceded to by the competent authority vide letter dated 20th March, 1995, and the appellant was informed accordingly.

28. Ultimately, the appellant was proceeded against and rightly ex parte and imposed major penalty of removal from service, under the relevant E&D Rules 1973.

29. The upshot of the above discussion is that, the extraordinary for two years, for the periods from 28‑10‑1989 to 9‑9‑1991 and from 1‑10‑1992 to 9‑1994 respectively was not covered under the rules, what to talk about his request for further extension of period of two years. Under the rules only two years extraordinary leave could be given to the appellant on his total service of about four years. However, he availed about six years ex‑Pakistan leave, through a political influence. In view of the circumstances the demand for grant extension for further leave was unjustified.

30. The appellant did not resume his duty despite he was twice directed. This amounts to misconduct. Although the learned counsel for the appellant pleaded that the extension so requested by the appellant was for doing F.R.C.S., but the record shows and has been pointed above at relevant places, that all his request was for looking after of his wife, which we find unfounded. The learned counsel has also pleaded that his financial problems had involved him mentally. But he did not mention such problems, to have engaged him in his reply to show‑cause notice. The learned counsel has claimed that appellant was discriminated against as in the similar case of Dr. Ghagala, Dr. Javid and Dr. Stephen were given relief. However, the record shows that their cases were distinguishable from that of the appellant.

31. For the reasons recorded above the appeal having no substance is dismissed with no order as to costs. Parties be informed. H.B.T./28/Sr.F Appeal dismissed.