1988 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Dr. Inder Sain-Rajpal has moved this Tribunal through the present appeal under section 4 of the N.-W.F.P. Service Tribunals Act; 1974 praying that he may be re-instated in service. According to him he joined the department of Health as Medical Officer after qualifying the competitive examination conducted by the then Public Service Commission in the year, 1962. After the dissolution of the Province of West Pakistan, he being the resident of N.-W.F.P. his services were placed at the disposal of the respondents for posting on 1-7-1970. In the year, 1973 some posts of Medical Officers were advertised by the Government of Iran and the appellant was selected for one of the posts and with the sanction of the Federal Government he joined the Health Service in Iran on deputation in August, 1973. There was no period fixed for his service abroad and no embargo in the service record maintained by the Government of N.-W.F.P. so the appellant remained there for, more than 5 years and in his absence the Federal Government took the decision that the period of deputation must not exceed 5 years and in the light of the said decision respondent No.2 terminated the service of the appellant without serving upon him any notice. When the appellant arrived in the country in December, 1983, he reported for duty but was surprised to learn about his dismissal against the rules and the principles of natural justice. No period was fixed in the N.O.C. The order of termination was without lawful authority, he had been condemned unheard, the said order was neither conveyed to him at his permanent residence at Mardan, nor at his official address in Iran, the said order was against the public policy and the constitutional guarantees as every citizen is to be treated equally without reference to caste, creed or religion, the other doctors namely Dr. Dost Muhammad and Dr. Fazli Akbar who over stayed for sufficient period were re-instated in service by relaxing the rules. The respondents negated the claim of the appellant. Record perused and the arguments heard in the light of which the case is disposed of as under: Learned counsel for the appellant argued that a perusal of NOC and the letter issued by the Federal Government to the Provincial Government marked as Exhibit 'B' would show that no period of stay abroad was given in it. The terms and conditions settled between the Federal Government and the Iranian Government were also silent regarding the period of stay of the appellant in Iran. The appellant was un-aware so far as his stay in Iran was concerned. His Passport and Visa were kept by the Iranian Ministry of Health with it and he eras to serve there for the period for which the Iranian Government liked him to stay there. No show-cause notice was served upon him through the Pakistani Embassy at Iran before passing the impugned order of dismissal from service. No body can be condemned un-heard before taking an adverse action against him. In the present casq appellant was in Iran while his services were dispensed away unilatarlly and without affording him an opportunity. F.R. 18 is against the Disciplinary Rules, 1973 because the absence from duty comes within the term misconduct and a detailed procedure is prescribed it the rules to deal in such like matters by initiating departmental enquiry against an official. Besides this many doctors who over stayed in different countries were accommodated and the rules were relaxed but the appellant was given a step motherly treatment at the hands of the respondents. So far as the question of limitation is concerned, it is an illegal and void order and the limitation does not run against such like orders. On the other hand learned Special Government Pleader argued that the present appeal is hopelessly barred by time and there is no application for condonation of delay. According to him, appellant reported back in the year, 1983 and was informed that on account of his over stay in Iran he has been dismissed from service. Under the law within a month of the said intimation he was bound to file a departmental appeal and then on rejection of the sane to knock at the doors of the Service Tribunal within 120 days. While he filed the present appeal on 16-5-1987 such a long and continuous delay without any cogent and reasonable explanation cannot be brushed aside. So far as the case of the appellant on merits is concerned, he was dealt with in accordance with the rules prevailing and the Government has power to exercise its discretion in the way it likes. No Government servant can force it to exercise its powers in a particular manner. We have given our patient hearing to the arguments advanced by the parties. A perusal of NOC and the other documents placed on the record would show that no period was fixed for the appellant to serve abroad and accordingly he cannot be blamed for his over stay in Iran. Respondents were under the law bound to direct the appellant, before his departure to Iran that he will stay there for 3 years or 5 years and not more than this. The appellant was serving in Iran and if the Government required his services after a period of 3/5 years, he could easily be approached through our embassy in Teheran and in case he was not willing to come back to the country to proceed against him by serving upon him a notice of dismissal of services. Since he was not aware of his period of stay abroad on his arrival to Pakistan in the year 1983 he was informed that his services have been dispensed away. Absence from duty without permission/sanction by a competent authority is a misconduct and a Government servant who involves himself in the commission of such an illegality is bound to be proceeded against under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. The said rules deal in such like matters and respondents in presence of these rules were not to follow the provisions of F.R.18 which have become redundant after the promulgation of 1973 rules. However, the law has provided period to approach the Tribunal and the manner in which an aggrieved person can seek his remedy from the Tribunal. Section 4 of the N.-W.F.P. Service Tribunals Act, 1974 prescribes the method as to when an aggrieved person can approach the Tribunal. The appellant in the instant case was intimated about the impugned order in the years, 1983 and instead of seeking his remedy within stipulated period he kept on submitting applications to different authorities and moved this Tribunal on 16-5-1987 through the present appeal. It is a settled law that there can be only one representation or appeal or review to the departmental authority and if an aggrieved person has availed of the said remedy he is then legally bound to approach this Tribunal within 120 days. Provisions of section 5 of the Limitation Act are applicable to the cases in which the delay had been occasioned through an act/omission of an aggrieved person and if there are genuine grounds for the condonation of delay the Court can condone it, however, in the instant case the appellant did not take the trouble to move this Tribunal through a petition. The appeal of the appellant is hopelessly barred by time. Now the last question is as to whether sill the citizens are equal in the eyes of our religion/law. There is no second opinion that, Islam believes in equality, fraternity and humanity. Nobody can be condemned or discriminated on the basis of colour, creed, sex, language, faith, religion and land. Every body is equal before Almighty God as he is His creation. Our Constitution also embodies this golden principle which our religion preaches. The appellant placed on the record two Notifications dated Peshawar, the 12th April, 1982 and 26th August, 1986 vide which two doctors namely Dr. Dost Muhammad and Dr. Fazle Akbar were granted extra ordinary leave without pay in relaxation of F.R.18 who stayed abroad for more than 3 years. They were re-instated and their overstay was regularized from 30-9-1972 to 21-9-1981 and from May, 1977 to March, 1982 respectively. Government had get ample powers to relax the rules in his favour as well. From the discussion on the question of limitation above we have got no alternative but to dismiss the present appeal as hopelessly barred by time but in the circumstances of the case leave the parties to bear their own costs and file be consigned to the record room. S. Q. /74/Sr.N???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed