P L D 1957 (W (PLP)

QADEERUDDIN, J.

The petitioner Ghulam Muhammad Khudadad Soomro has brought this writ petition with the prayers that R s. 600 should not be recovered from him and chat the ordets by which he was prevented from serving the department concerned should be examined and quashed. The petitioner was appointed as a Darogha in 1943 and was promoted to be an unqualified overseer in 1948. On the din 16th of June 1949 he was selected for special Overseer Certificate Course 1949-50. He completed the course success fully and on 26th of April 1950 was, posted as overseer in Lower Sind Barrage Administration. On the 27th of February 1952 he was promoted to be the P. A. to the Executive Engineer in Lined Channel Division. This order of promotion was however cancelled on the 10th of March 1952. The reason of this cancellation according to the petitioner was that he refused to certify the work of a certain contractor by the name of Jalaluddin in whom Mr. A. Rashid Kazi, Superin tending Engineer Left Bank Construction Circle was interested. According to the counter-affidavit submitted on behalf of the respondents, the order of promotion of the petitioner was cancelled for want of vacancy, as Mr. Muhammad Anis returned from leave and reported for duty before the peti tioner could take up his newly-assigned duties. It appears that Mr. Anis did return from leave but according to the petitioner he did so before the expiry of his leave period because he was compelled to resume duty with the ulterior motive of circumventing the petitioner's promotion. What ever the real facts may be, it is clear that after the order of promotion there was unpleasantness between the petitioner and some officers of his department. From the 4th of Mareti 1952, and according to the petitioner from the 16th of March 1952, the petitioner did not attend to his duties. This absence according to the petitioner, was on the basis of a leave application on medical grounds supported by a medical certificate and countersigned by the Civil Surgeon, Hyderabad. This absence, according to the respondents, was unauthorised because the petitioner had not produced a medical certificate until the 16th of March 1952. It appears that due to this absence, the Superintending Engineer Left Bank Construction Circle suspended the petitioner, ordered an enquiry against him and recommended to the Chief Engineer that this action should be approved. The Chief Engineer approved the action by his letter dated the 3rd of April 1952 and ordered that the result of the enquiry be communicated to him. The letter by which the approval was granted is couched in the following language :- "Your recommendation to consider Mr. Ghulam Muhammad Soomro under suspension with effect from the 4th of March 1952 the date on which he has absconded is hereby approved." Later on the matter seems to have received further considera tion on an appeal preferred by petitioner dated the 2nd of June 1952 whereupon the Chief Engineer wrote on the 21st of July 1952 that the petitioner be reinstated and posted to the circle office of the Left Bank Construction Circle: "but he may not be allowed any increment till this case is finally decided," By another letter, he appointed Mr. A. J. Sheikh, Executive Engineer, Agricultural College Building's department, as an enquiry officer for conducting an enquiry into the charges against the petitioner. The petitioner accordingly resumed his duties as an overseer. A charge-sheet was given to the petitioner and the petitioner submitted his explanation in reply to it and also requested that he should be heard personally. The petitioner's allegation in this regard is as follows:- "But it is very" significant that upto now four years no reply thereto is given nor any action taken thereon as required by the mandatory provision of rule 55, and on the basis of the said charge-sheet without complying with the said rules, without wording the petitioner any opportunity of defending himself and without giving finding suddenly on the 5th of November 1955 by an ex-pane, mala fide, self styled and self-imposed order of even date, the respondents under it informed the petitioner that he was no more in service. . . . . ." The order to which reference is made in these allegations is contained in a letter dated the 5th of November 1955 which is addressed to the petitioner. In this letter it was ordered that as the post occupied by the petitioner had fallen vacant due to completion of three months' absence from duty the amount of Rs. 600 spent on the petitioner during his training should be recovered from him. This letter was written by the Superintending Engineer on the basis of a letter dated the 10th of October 1955 written by the Chief Engineer to him, in which it was pointed out that on comple tion of three months absence from duty, the petitioner had automatically vacated -the post, and that, as such, he was neither in Government service nor under suspension. It was also pointed out that the petitioner should be 'asked' to refund the amount which was spent on his training. The explanation of the respondents is that while the report of the Enquiry Officer was awaited and was not received until the 15th of December 1952, the petitioner remained absent from duty and submitted three applications one after the other for leave on the ground of illness. His first applica tion was dated the 15th of December 1952, for a month's leave upto the 14th of January 1953. The second applica tion was dated the 15th of January 1953 for leave from the 16th of January 1953 to the 15th of February 1953. The third application was for leave from the 16th of February 1953 to the 15th of April 1953. These applications, accord ing to the respondents, were not supported by medical certificates and although he was repeatedly asked by the Superintending Engineer to produce medical certificates in support of the allegation of his illness, the petitioner failed to do so. As a result of this failure, and according to para. 2, rule 14 of Appendix XLIV-A of Sind Civil Services Rules Manual, Volume II, the petitioner was considered to have vacated his post and it was considered to be unnecessary to take any action on iris absence as an enquiry which had been commenced against the petitioner was still pending. The Enquiry Officer was requested to expedite it. It appears that Mr. A. J. Sheikh ordered the petitioner to appear before him oil the 20th and 22nd of September 1952 for proceeding with the enquiry, and the petitioner after taking permission to attend the proceedings appeared before him. According to the petitioner he was charge-sheeted for absence from duty without permission on these two days, but the respondents have denied that he was so charge sheeted. On the 30th of September 1952 the petitioner was charge-sheeted by Mr. Kazi for misbehaviour of the petitioner with his P. A. The respondents do not deny that the peti tioner was charge-sheeted for misbehaviour with the P. A. and have stated that as a result of this charge-sheet his increment was i stopped for one year. This punishment seems to have been given to the petitioner apart from, and in addition to the order of the Chief Engineer dated the 21st of July 1956, by which the petitioner's increment was stopped until the decision of the enquiry which was pending against him and for which A. J. Sheikh was appointed the Enquiry Officer. The petitioner As staled that on account of the treatment meted out to him, he was compelled to proceed on leave and that after the expiry of the period of the leave he wanted to resume duty but he was told that he was under suspension due to unauthorised absence. The letter by which he reported his duty is dated the 3rd of August 1953, although his leave had expired on the 15th of April 1953. The explanation of the petitioner is that he was transferred from his original place of posting to another place, but the order of the transfer was not com municated to him. When he wanted to join duty subse quently on the 3rd of August 1953, he was again told that he was under suspension and on his request for an order of suspension in writing he was told to submit his report of arrival. This was done according to the petitioner, to conceal his previous requests for joining duty and his reports for arrival at the office to resume duty. However that may be, the respondents have not considered the absence of the petitioner from duty from the expiry of the period of his third application for leave namely dated the 15th of April 1953. The stand that they have taken is that he automatically ceased to be in the service of the Government on account of his absence from duty for more than three months, and they have relied on rule 14 of the Sind Civil Rules. The rule according to the respondents' counsel is as under:- "14. (1) Extraordinary leave may be granted to any Government servant in special circumstances- (a) When no other leave is by rule admissible, or (b) When other leave is admissible, but the Government servant concerned applies in writing for the grant of extra ordinary leave. (2) Except in the case of a Government servant in permanent employ ill superior service and of o-a Govern ment servant in inferior service, the duration of extra ordinary leave shall not exceed three months on any one occasion. Note.-Temporary Government servants (both superior and inferior) who contract tuberculosis and undergo treatment for long periods may be granted extraordinary leave upto a maximum of twelve months at a time in addition to earned leave and/or leave on medical certificate admissible under the above rule, subject to the following conditions :- (i) that the post from which the Government servant proceeds on leave is likely to last till his return to duty, (ii) that the extraordinary leave is granted on the production of a certificate from a medical officer of Government specifying the period for which leave is recommended, and (iii) that the medical officer in recommending the leave bears in mind the provisions of Sind Civil Services Rule 65.9. (3) The authority empowered to grant leave may commute retrospectively periods of absence without leave into extraordinary leave." There is nothing in this rule to lead to the inference that more than three months' absence causes the vacation of the office of an employee automatically Mr. Sadiq, the learned Advocate of the respondents modified the stand taken by the respondents during his arguments and said that the absence from duty of the petitioner was unauthorised also because his applications for leave were never granted. It appears however that the three subsequent applications for leave were never rejected. Mr. Sadiq has relied on the letter dated the 28th of February 1953 which was addressed to the peti tioner and has emphasised the following words :- " . . . . . You are directed to produce medical certificate from the Civil Surgeon, Hyderabad in support of your illness (or) else no leave can he sanctioned to you " His argument is that this was clear information conveyed to the petitioner that his applications could not at all be granted ill the absence of the production of supporting medical certificates. It may be correct that the applications could not be granted without the production of medical certificates, but this may only amount to saying that the applications were kept pending to be considered after the production of medical certificates. It is stated in Para. 7 of the counter-affidavit of the petitioner that the petitioner was repeatedly asked to produce medical certificates. The fact that he was repeatedly asked to produce certificates shows that the consideration of applications was postponed until their production. We also find in Para. 6 of the counter-affidavit that the petitioner applied for leave from the 4th of April 1952 and produced a medical certificate on the 16th of March 1952, and it would appear from the report of Mr. A. J. Sheikh the Enquiry Officer, that the petitioner was not condemned for this omission. It cannot. therefore, be said that the non-production of medical certifi cates and the demand for production of medical certificates amounted, in the circumstances of the case, to the rejection of the applications for leave. Moreover, it appears that there is no rule under which absence without permission causes the vacation of office automatically. It is stated in Para. 7 of the counter-affidavit that the petitioner's absence from duty :- "On the plea of illness without producing medical certifi cates amounts to misbehaviour." The petitioner might have been guilty of misbehaviour and if so he ought to have been charge-sheeted for it and if the charges were established against him, he could be dismissed from service. We find that the contention of the respondents to the effect that the petitioner automatically ceased to be in the service of the Government on account of his absence from duty, whether authorised or unauthorised, is not tenable. Apart from the above legal position in law, it is note worthy that the respondents themselves continued to treat the petitioner to be in the service of the Government during his absence from duty during the leave period as well as afterwards. It is stated on their behalf in Para. 11 of the counter-affidavit that the petitioner was transferred from one place to another on the 12th of January 1953, Again, when the petitioner accepted a job on the 27th of September 1953 in Khairpur State, a letter was written on the 17th of September 1953 to the Chief Engineer, Khairpur State on behalf of the Chief Engineer, Government of Sind, requesting him to relieve the petitioner of his services in the State on the ground that he was involved in an enquiry for mis behaviour and on the ground of the instructions of the Government of Pakistan according to which the servants of one Province or State were not to be employed by another Provincial Government or the Government of another State without the consent of the Government to which such servant belonged. This means that up to the date of this letter the respondents treated the petitioner to be a servant of their department. The explanation given on behalf of the respondents in Para. 15 of the counter-affidavit is that the reason for writing the letter was not that the petitioner was considered to be in the service of the Government, but because he was bound on account of an agreement not to enter the service or practise as a professional man in any State for a period of ten years after becoming qualified through the training which was given by the Government. This, apparently, is not a true explanation. There is no mention of the bond in the letter addressed to the Chief Engineer, Khairpur State and no such bond was executed by the petitioner, as it admitted in Para. 20 of the counter affidavit. On the contrary, there is reference in the letter to the instructions of the Government of Pakistan relating to the servants of Provinces and States. The result of the letter was that the petitioner was dis charged from the service of the State and according to him, he was ordered by the Chief Engineer of the Khairpur State to join the Sind P. W D. The petitioner has stated in Para. 17 of the petition that on the 10th of October 1954, tie reported for duty but was not allowed to resume charge. The enquiry which was being conducted by Mr. A. J. Sheikh still continued and no replies were given to the petitioner on his complaints of delay. The petitioner was according to him, again compelled on account of financial hardship to accept the post of an S. D. O. in the Local Board, Nawabshah and that the respondents again manoeuvred to get him discharged from that service. The respondents have denied that they were responsible for the termination of his services. There is nothing on record in this regard except the allega tion of the petitioner that the respondents manoeuvred to get him discharged from the service of the Local Board and the denial of the allegation on behalf of the respondents. We are however, inclined to think that everything was not right with the attitude of the respondents towards the petitioner. We caused the report of Mr. A. J. Sheikh to be produced in Court. It is marked Exh. AA and consists of six pages. This is the result of the enquiry which started in July 1952 and was not completed until the middle of September 1954. There is no date of completion mentioned on the report. We do not know whether the petitioner was ever informed of the result of the enquiry or not. It is clear from the record however that plenty of importance was attached to it. It was mentioned in the letter addressed to the Depart ment to the Chief Engineer, Khairpur State, and the language used in the letter shows, that emphasis was laid on the misbehaviour of the petitioner. The result of the enquiry however, is as follows :- "From the above it will be seen that although none of the charges could conclusively be proved against Mr. 5oomro but still he stands responsible for gross negligence in relying on Darogha and in not exercising proper check over the double entries of coolies in the Muster rolls referred in charge No.

1. He is also respon sible for keeping away important Government documents without any authority (charge No. 5). Such negligence or irregularity may not deserve much attention or con sideration in any other Government Department but this cannot be the case in the P. W. D.' where expenditure is made in lacs through these subordinates annually." It appears from the discussion under Charge No. 5 that an allegation was made that records were stolen, but it was found, in the language of the report,

"This proves that the records were not 'pinched' by the Overseer as alleged but the same were taken under the orders of Mr, Chisty himself in connection with preparation of estimates . . . . Though the circumstances forced Mr. Soomro to retain the X-Section to prove his innocence, but still he should not have retained the Government documents with him and should have returned the same to the Divisional Officer." The above remarks show how weak the conclusions of negligence are. We are forced to the conclusion that the relations between the petitioner and the high officers of the depart ment were not good. The high officers did not like him after his promotion as P. A. to the Executive Engineer and the circumstances became difficult for him for one reason or another. We are not unmindful of the importance of not imposing an employee even temporarily on an unwilling employer, but our difficulty is that while it might have been possible to get rid of the petitioner by following the law and fair methods, they were not followed and on the contrary methods were adopted which were difficult to defend and therefore defences have been raised which are neither correct in law nor supported by the facts. Mr. Sadiq, the learned advocate of the respondents, took a belated objection that the Writ Petition should be dismissed on the ground of the delay made by the petitioner in coming to this Court. He argued that the petitioner was informed by a letter dated the 5th of November 1955 that -he had ceased to be in the service of the Government, but he submitted his Writ Petition on the 8th of October 1956. This objection was not taken in the counter affidavit submitted on behalf of the respondents, nor was it raised as a preliminary objection. We, therefore heard the counsel of the petitioner at some length on the merits of the petition before the objection was taken. We granted time to Mr. Sadiq to address us in support of the objec tion in these circumstances. He has relied on Weekly Notes (1917) Part I, page 27 which is a judgment by King's Division Bench (The King v. Glamorganshire Appeal Tribunal). Their Lordships had refused to grant the writ of mandamus on account of delay of 2 months. This ruling is not applicable to the present circum stances in which the objection taken on behalf of the respondents is itself belated, and the arguments have been heard on merits. He has also relied on Muhammad Siddik Malik and another v. Dr. Miss Zubeda Peer Muhammad (P L D 1957 Kar. 194). This authority is against him because in this case the Court refused to go into the objection of delay on the ground that the objection had not been taken in the counter-affidavit, and the counsel of the petitioner was heard at length on merits. The counsel of the petitioner has relied on Muhammad Akbar v. Dr. Khan Sahib (P L D 1957 Kar. 387), Damodar Goswami v. Narnarayan Gosruami and others (A I R 1955 Assam 163) and Damodar Mohanty v. Utkal University (A I R 1955 Orissa 151). The observations contained in the ruling of the Assam High Court are undoubtedly helpful to the petitioner. They are as follows :- The question of delay is a very patent factor to be taken into account in throwing out an application for a writ of certiorari in limine ; but after the issue of a rule nisi when the Court has examined the record and is satisfied that the order complained of is manifestly erroneous and illegal or without jurisdiction, the High Court would be loath to allow the mischief of the order to continue and reject the application simply on the ground of delay, unless there are very extraordinary reasons to justify such rejection." In the present case, rule nisi was issued and arguments were heard on merits. No objection regarding delay was taken in the counter-affidavit, and we are satisfied that the action taken by the respondents against the petitioner is not supportable by law. We, therefore, overrule the objection. The result is that we accept the writ petition to the extent to which it relates to the cessation of the petitioner's service, and do not wish to decide as to whether Rs. 600 are recoverable from him or not. We direct that a writ of certiorari be issued to the respondents making it clear that t all orders, letters and directions by which the petitioner was declared or treated to have ceased to be in the service of the Government are quashed and are of no effect. 'The petitioner is entitled to recover rupees three hundred from the respon dents No. 1 and 2 in half and half. A. H. Order accordingly.