2010 PLP 1377 (SCMR)

CH. IJAZ AHMED, J.

Necessary facts out of which the present petition arises are that petitioner was appointed as Research Assistant Planning and Development on 14-7-1988. His services were regularized on 18-8-1990. Petitioner submitted an application for securing leave for six months before the competent authority. The competent authority had accorded sanction to the grant of 30 days earned leave on full pay, instead of six months, to the petitioner w.e.f. 27-10-2006 to 25-11-2006 vide notification dated 9-10-2006. After availing the said leave, petitioner submitted three applications for extra-ordinary leave without pay out of which one application was addressed to the Secretary to Government of the N.-W.F.P., Planning and Development Department Peshawar (page 21 of the paper book) and two applications were addressed to the Additional Secretary, Planning and Development Department, N.-W.F.P., Peshawar dated 27-1-2007 and 31-3-2007 (pages 23 and 24 of the paper book). Petitioner, after submitting the aforesaid applications, did not attend the office. Respondents initiated departmental proceedings against the petitioner. Petitioner was removed from service vide order dated 6-6-2007. Being aggrieved from the said order, he filed departmental appeal before the appellate Authority on 25-6-2007 which was dismissed vide order dated 30-11-2007. The said order was intimated to the petitioner vide order dated 19-11-2007. Petitioner filed appeal before the Service Tribunal Peshawar which was dismissed by the impugned judgment dated 23-1-2009 as time-barred as well as on merits. Hence this petition.

2. Learned counsel for the petitioner submits that right had accrued for grant of earned leave as he had served the department more than 15 years, therefore, respondents were duty bound to sanction extraordinary leave to the petitioner for a period of two years w.e.f. 26-11-2006. The action of the respondent was without lawful authority and in violation of the N.-W.F.P. Revised Leave Rules, 1981 particularly Rule 3 to

5. He further maintains that appellate Authority had also erred in law to dismiss the appeal of the petitioner without application of mind. Similarly, learned Service Tribunal had also erred in law to dismiss the appeal of the petitioner on merits as well as on time-barred without adverting to the contents of the application submitted by the petitioners before the competent authority for securing leave. Petitioner had particularly mentioned in his applications that on account of illness of his parents he had submitted applications for grant of earned leave. Petitioner had filed appeal before the Service Tribunal within time but the learned Service Tribunal had erred in law to dismiss the same as time-barred. The respondents had awarded major penalty to the petitioner without holding regular inquiry and this fact was not considered by the Service Tribunal while dismissing his appeal. In support of his contention, he relied upon Naseeb Khan's case 2008 SCMR 1369.

3. We have given our anxious consideration to the contentions of learned counsel for the petitioner and perused the record. It is admitted fact that petitioner had already availed 3 years leave without pay as depicted from report and parawise comments filed by the respondents before the Service Tribunal. The respondents, vide letter dated 24-11-2006, advised the petitioner to report on duty but he did not comply with orders of the competent authority and preferred applications for extraordinary leave without pay stating serious illness of his father. The department, even, offered him for his posting at Nowshera/Mardan or Peshawar so that he could look after his home daily at Nowshera. The respondents had issued various letters to him with the direction to join the duty but the petitioner absented himself from duty and did not respond to anyone of the letters of the respondents. Final notice was issued to him by the respondents through print media/newspapers giving him last chance to join the duty but he did not avail the said opportunity. The competent authority was constrained by the aforesaid circumstances, after completing the required formalities, to remove him from service vide order dated 6-6-2007 on account of his wilful absence from duty. The petitioner filed departmental appeal against the said order on 25-6-2007 which was rejected by the competent authority and dismissed his appeal vide order dated 13-11-2007 which was intimated to him vide order dated 19-11-2007.

4. In case all the facts and circumstances, highlighted above, are put in a juxtaposition, then it is crystal clear that petitioner had absented himself from the office and did not join in spite of the best efforts of the department due to which he was removed from service. The order of the competent authority was upheld by the Appellate Authority while dismissing his appeal which was also affirmed by the learned Service Tribunal vide its impugned judgment. The findings were recorded by the aforesaid three authorities after analyzing the evidence on record. We do not find any infirmity or illegality committed by all the aforesaid forums while rending findings of fact recorded against the petitioner. The findings of fact recorded by' the aforesaid authorities could not be interfered by this Court while exercising power under Article 212(3) of the Constitution as law laid down by this Court in Ch. Muhammad Azim's case 1991 SCMR

255. The judgment relied upon by the learned counsel for the petitioner is distinguished on facts and law. In the cited judgment, petitioner had not absented himself whereas in the case in hand, petitioner, as mentioned above, had absented himself and in fact the department had shown great grace and leniency while providing him three chances to join his duties but he could not avail the said chances. It is a settled principle of law that constitutional jurisdiction is always discretionary and equitable. It is also settled law that while exercising discretionary power, this Court has to look into the conduct of the petitioner on the well-known principle that he who seeks equity must come with clean hands. Keeping in view the conduct of the petitioner, as highlighted above, we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in various pronouncements. See Rana Muhammad Arshad's case 1998 SCMR 1462 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236.

5. It is admitted fact that petitioner was removed from service by the competent authority vide order dated 6-6-2007 against which the petitioner had 'filed appeal before the appellate authority on 25-6-2007. The learned Service Tribunal was justified to dismiss the appeal of the petitioner as laid lay down by this Court in various pronouncements. See Khawaja Shahid Nazeer's case 2006 PLC (C.S.) 1261 and Khyber Zaman's case 2004 SCMR 1426.

6. In view of what has been discussed above, this petition has no merit. Even otherwise, the learned counsel for the petitioner has failed to raise any question of law as contemplated under Article 212(3) of the Constitution therefore, petition is dismissed. Leave refused. M.H./K-13/SC Petition dismissed.