2007 PLP (C (PLC(CS))

NAZAR MUHAMMAD SHAIKH, MEMBER.

Appellant has filed this appeal under section 4 read with section 2-A of the Service Tribunals Act of 1973 to challenge the respondents' order dated 2-3-2000 whereby the appellant has been reduced to a lower post and compulsorily retired from service on 8-3-1999. The facts of the case are that the appellant was appointed in CMES on 1-10-1969 and completed 25 years service while serving under Garrison Engineer, (Army) Malir Cantt. Appellant applied for premature retirement vide his application dated 15-11-1994 as he had become diabetic patient. Appellant was then posted to MES PAF vide letter dated 1-11-1995. Appellant was relieved from Garrison Engineer's Office with effect from 2-6-1996 vide Movement Order No.1003/398/E.I., dated 2-6-1996. Appellant then applied for premature retirement on completion of twenty-five years' service. He also did not attend office on account of deteriorating law and order situation and curfew etc. in Karachi. A press notice was issued in the newspaper daily "Jang" on 3-2-1998 that appellant was deserter and was ordered to report for duty. Appellant reported back for duty on 16-2-1998 at CMES PAP; Samungli. Disciplinary proceedings were initiated by the respondent by issuance of a charge-sheet dated 22-6-1998 whereby he was charged with remaining absent for 623 days with effect from 16-6-1996 to 15.2-1998. Formal enquiry was conducted by the Enquiry Committee comprising Garrison Engineer Air Samungli and two other Assistant Engineers. Enquiry Committee held the appellant guilty of the charges and he was accordingly issued show-cause notice on 17-11-1998. Appellant replied to the show-cause notice on 28-11-1998. Appellant was then imposed penalty of reduction to a lower post and compulsorily retired from service with effect from 8-3-1999. His departmental appeal was rejected.

2. Learned counsel for the appellant stated that the appellant was a chronic patient of diabetes and while requesting for voluntary retirement on completion of 25 years' service, appellant had appended certificate from Diabetic Association of Pakistan. He further stated that the appellant was not able to perform his duties due to then prevailing law and order situation in the city. He could not attend duties during the period from 16-6-1996 to 15-2-1998. He further stated that the Enquiry Officer had recommended imposition of minor penalty of censure whereas the competent authorities have imposed two major penalties. He further stated that reduction to a lower post has to be for a specified period and in this regard he has relied on the rulings reported in NLR 1980 (Service) 119 and PLD 1982 Pesh.

165. In these rulings it has been held by the Honourable High Court that period of reduction to a lower post has to be specified. Learned counsel for appellant stated that the appellant's record was unblemished and even he was allowed Selection Grade BPS-16.

3. Learned counsel for the respondents opposed the appeal and maintained that the appellant had remained absent unauthorisedly without taking formal approval of his leave and that his request for premature retirement and LPR was well under consideration. It was, therefore, mandatory for the appellant to continue working till such time his request for voluntary retirement was accepted. He further contended that the appellant remained absent only to avoid his transfer from the Garrison Engineer Army Malir Office. He further stated that the appellant's unauthorised absence was duly enquired into by a formal enquiry and, as such, the appellant had been rightly proceeded against.

4. We have heard the arguments and perused the record and the citations.

5. The record of the case of the appellant establishes that the appellant remained absent from 16-6-1996 to 15-2-1998 without any intimation to the respondents. Appellant's contention that he could not attend his office due to his illness and because of deteriorating law and order situation in the city is not sustainable as the condition in the city did not warrant such long and unauthorised absence. Appellant who had completed 25 years service in an organization where discipline is the salient feature his action to remain absent without formal sanction of his leave is a gross misconduct and cannot be excused under any pretext. The record indicates that the appellant started remaining absent from the date of his transfer from Garrison Engineer Malir office. The fact that he was a diabetic patient since 1994 as is evident from the Certificate of Diabetic Association of Pakistan did not deter him attend the office and his absence immediately after his transfer from Malir in 1996 indicated that the appellant wilfully remained absent to avoid transfer.

6. As regards appellant's contention that the impugned order does. not specify period of reduction to a lower post and in support cited the aforementioned rulings is quite valid and this is an infirmity which will put the appellant to great financial loss. It would mean that the appellant if compulsorily retired would be drawing less pensionary benefit because of his permanent reversion to a lower post.

7. The above discussion indicates that the impugned order which flawed as it is mandatory to prescribe period for reversion in terms of FR-29. Appellant's misconduct is fully established and cannot be ignored. In exercise of powers under section 5(1) of the Service Tribunals Act of 1973, the impugned order is modified to the extent that reversion shall be for a period of two years and that punishment of compulsory retirement from service is maintained.

8. No orders as to costs. Parties be informed accordingly. H.B.T./9/FST Order accordingly.