1984 PLP (C (PLC)

S. ABDUL JABBAR KHAN (CHAIRMAN).‑Mr. Mahmood Ahmad Mughal has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the Order, dated 14th October, 1979 by which the Appellant has been removed from service: He has also challenged part and parcel of appeal, dated 15th March, 1981 by the appellate Authority. He has impleaded University of the Agriculture, Faisalabad, Government of the Punjab through Secretary Agriculture and Principal, College of Veterinary Sciences, Lahore as respondents. By virtue of this appeal he has prayed that the Order, dated 14th October, 1979 as well as Order, dated 15th March, 1981 be set aside as being without jurisdiction. 2. Brief facts of the case are that the appellant was appointed in the College of Veterinary Sciences at Lahore and was later on promoted Assistant Professor, In the year 1974 Appellant after securing permission from the authorities joined foreign service in Libya and started working as Assistant Professor in the Univerity of Garyounis, Faculty of Medicine, Benghazi, Libya. The initial period of this service was for 5 years. The Syndicate Faisalabad Agricultural University through its resolution dated 21st May, 1977 notified on 1st August, 1977 that after expiry of 3 years period appellant would not be given further extension for foreign service. Decision was communicated to the appellant who represented against the said decision and requested for extension. However, through a letter No. P. S. 267/12537, dated 12th June, 1979 appellant was served to show cause why the appellant should not be removed from service under rule 4(6) of the Agricultural Employees (E & D) Statutes, 1975 for non -compliance of the orders of Syndicate, dated 21st May, 1977. Appellant again Made a representation in which he requested for extension but the same did not find any favour and vide letter No. 23892, dated 14th October, 1979 the appellant was removed from service w. e. f. 7th March, 1977 for wilful absence from duty without permission. Hence this appeal. 3. We have heard the learned counsel for appellant as well as District Attorney assisted by Mr. Elahi Bakhsb Wajdani, Advocate who made an appeal on behalf of respondent No. 1, Vice‑Chancellor, Agriculture University, Faisalabad. 4. We have heard the learned 'counsel at length and the only issue for determination before this Tribunal would be whether the appellant was an employee of the Faisalabad Agricultural University or a civil servant as envisaged under the Civil Servants Act. This issue arose on the preliminary objection of the respondent No. 1 that the Appellant being a University employee would be governed by West Pakistan Agricultural University Employees (General Conditions of Service) University Ordi nance, 1967, therefore, this Tribunal have no jurisdiction to entertain his Appeal. 5. The learned counsel for the appellant has argued that the appel lant was a Government servant and employed in the affairs of the province and was working in the College of Veterinary Sciences, Lahore as Assistant Professor when his services were transferred to the Agriculture University, Faisalabad vide Notification of the Government of the Punjab, dated 16th January, 1975, therefore, the University Authorities had no lawful jurisdic tion to remove him from service and pass any order refusing to consider the appellant's request for extension of his period of over stay. It has been further argued that the period of 5 years was allowed to a civil servant who went on deputation to a foreign country and the same could not be reduced to three years as such change would amount to change in the terms and conditions of the service less favourable to him. It has also been argued that even if it is considered for the sake of argument that appellant would be governed by the Agriculture University Act, 1973 be should not be removed from service without being heard. For this appellant has relied on section 41 of University Act, 1973 read with rules 8 and 14 of the Statute of i975. He has also taken exception against the impugned Order on the ground that Syndicate could not impose any penalty on him and it was for the Chancellor to pass the ultimate order. The appellant has relied on the case of Raja Muhammad Sadiq v. WAPDA (P L D 1978 Lah. 738). He has also assailed the order as non‑speaking order. 6. On the other hand the learned counsel for the respondents has submitted that the appellant for all purposes would be an employee of the Agriculture University and would be governed by West Pakistan Agri cultural University Employees (General Conditions of Service) University Ordinance, 1967. In this manner the learned counsel for the respondents has repelled the arguments of the learned counsel for appellant that the appellant was an employee of the Government and he was' simply transferred by virtue of the Ordinance and should not be dismissed by the said Authority. 7. With regard to the merits the learned counsel for the respondents has submitted that initially assignment of the appellant to Libya was only for 3 years and the same could only be renewed under paragraph 61(2) of West Pakistan Agricultural University Employees (General Conditions of Service) University Ordinance, 1967 which empower the University as Competent Authority to sanction the transfer of a University employee to foreign service for a period not exceeding 3 years. According to the learned counsel the Committee so appointed by the Syndicate recom mended that the period of service should not be extended as most of the staff was serving outside the country for a considerable long period and the work of the University was badly suffering. It has been argued that a Professor of Grade‑20 was appointed as Authorised Officer to proceed against the appellant. A show‑cause notice, dated 12th June, 1979 was issued to Appellant but appellant failed to resume his duty and instead requested for extension of time. The Authorised Officer ultimately recommended that the appellant be removed from service of the Agriculture University. The said recommendation was considered by the Syndicate who decided to remove the appellant on account of misconduct of wilful absence from duty without permission. 8. We have given an anxious thought to the arguments raised before us by the parties and without adverting to the merits of the case we will decide the most crucial fact in this case whether the appellant is a civil servant and amenable to disciplinary action under Agriculture University Act and Rules, 1975 or was the employee of the Agriculture University and would be liable to be governed by the Statute and the West Pakistan Agricultural University (Punjab Amendment) Ordinance, 1971 and the Rules framed there under. We have examined the University Ordinance, 1971 and the Notification issued on 6th November, 1971 which followed the Statute/Ordinance. This Notification in fact is in continuation of earlier Notification, dated 6th November, 1971. By virtue of the Ordinance the services of the appellant alongwith the entire paraphernalia as well as personnel were transferred to Agriculture University, Faisalabad from the Animal Husbandry College, Lahore. The Notification has laid down the terms and conditions but with proviso that no such person shall be dismissed or removed from service, retired compulsorily and reduced in rank or sus pended by an Authority subordinate or lower in rank by which he was appoint ed. However, the powers to initiate disciplinary proceedings against such persons were conferred upon the Syndicate. If we do not proceed further to examine the case of the appellant we are in agreement with the leaned counsel for the appellant that appellant should have been removed from service by an Authority not less the one by which he was appointed. But what we find in this case is that there is an instrument of option signed by the appellant himself on 8th February, 1972 in which he has accepted that he would be governed by the Statutes, University Ordinance etc. applicable to the employees of the said University w.e.f. 6th November, 1971 the date from which the College of Animal Husbandry, Lahore was integrated with the said Agriculture University. However, while accepting the applicability of the Statutes and the said University Ordinance he further elaborated certain points with regard to the terms and conditions of his service and requested that he should be treated accordingly. This document was duly signed by the appellant, countersigned by the Principal, College of Animal Husbandry and the same was accepted. In this manner the appellant himself has accepted what is being claimed by the learned counsel for the respondent. In view of his option which the appellant has exercised with open eyes, taking into consideration all the pros and cons of his service he cannot be allowed to resile from the same and we are of the considered opinion that the appellant has been an employee of the Agriculture University, Faisalabad since the date of his integration with the said University and not a civil servant. As such proceedings so taken against the appellant cannot be looked into by this Tribunal for lack of jurisdiction. 10. We, therefore, proceed to dismiss the appeal as non‑maintainable. A. E. Appeal dismissed.