2003 PLP 678 (SCMR)

(c) Revised Service Rules, 1980‑‑‑ ‑‑‑‑R.7‑‑‑Leave‑‑‑Not automatically granted during period of absence from duty‑‑‑Civil servant cannot proceed on leave, unless same was formally requested and sanctioned‑‑‑Grant of leave‑‑‑Procedure stated. Leave is not allowed to an employee automatically during period of his absence from duty, as employee is required to make express request for sanctioning leave and if such request is conceded and leave is sanctioned, only then he can proceed on leave, as such contention of an employee that his absence from duty should be treated towards leave as he has sufficient leave in his credit without formal request for its sanction is not acceptable under law. In this behalf, reference may be made to Rule 7 of Revised Leave Rules, 1980, which cast duty upon employee to proceed on leave after getting it sanctioned accordingly, but not otherwise ‑‑‑[Civil service‑‑‑Leave, grant of‑‑ Procedure]. Jan Muhammad Khan, Advocate‑on‑Record/Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 20th January, 2003. IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.‑This petition is directed for leave to appeal against the judgment dated 17‑6‑2002 passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by the petitioner against the order dated 25‑2‑1997 removing him from service has been dismissed.

2. Precisely stated the facts of the case are that petitioner being civilian employee in Station Workshop, EME, Risalpur, was proceeded against departmentally for remaining absent from his duty from 7‑1‑1997 to onward. The explanation of the petitioner was that he was involved in a murder case on 5‑2‑1997 and subsequently, was released on bail on 9‑2‑2000 and finally he was acquitted of the charge on 30‑6‑2000. In the meanwhile, he has been removed from service, therefore, he filed departmental appeal on 12th August, 2000 followed by the reminder dated 10‑11‑2000 but request so made by him was rejected by the department on 10‑1‑2001. As such, he preferred appeal before the Federal Service Tribunal which has been dismissed by means of impugned order.

3. Learned counsel contended that after getting bail from the Court in a criminal case, petitioner was not aware about his removal from service, therefore, after his acquittal from the charge of murder on 30‑6‑2000, he came to know about his removal from service, as such on 12‑8‑2000, he submitted his representation for his reinstatement into service followed by its reminder dated 10‑11‑2000 but his grievance was not redressed as departmental appeal filed by him was rejected on 10‑1‑2001, therefore, according to him, the time shall run against the petitioner for filing of the departmental appeal from the date of acquittal and not from the date of bail granted to him by the Court of competent jurisdiction. We do not agree with the proposition put forth by him because record reveals that petitioner was arrested in the case on 5‑2‑1997 whereas he was absent from his duty with effect from 7‑1‑1997. During this period, no application was submitted by him for grant of leave. Even otherwise, on having been released on bail on 9‑2‑2000, it was his duty to report to the department for discharging his functions because there is no provisions in the Service Rules that if a person is charged for a criminal case, he is debarred to perform his duty till the time he earns his acquittal. It is settled law that until a criminal case is decided finally, the presumption is that the accused facing the charge of criminal nature is an innocent person. Therefore, he should have approached departmental authorities immediately after his release. Both the factors pointed out hereinabove, namely, he remained absent from 7‑1‑1997 till the date of his arrest on 5‑2‑1997 and non‑joining duty after getting bail on 9‑2‑2000 are sufficient to conclude that his absence was intentional and he was not interested to perform his duty as it has been rightly observed by the Inquiry Officer.

4. Learned counsel next contended that petitioner had five years leave without pay to his credit, therefore, the department was bound to allow him leave for the period during which he remained absent. It may be noted that initially petitioner preferred an application for grant of leave for the period after 7th July, 1997 when he has already been treated absent and on the basis of his absence, he was removed from service on 25‑2‑1997, therefore, the Department, in such circumstances, was not bound to accept his request for sanctioning leave in his favour from his leave account. It is also noteworthy that leave is not allowed to an employee automatically during the period of his absence from the duty, as the employee requires to make express request for sanctioning leave and if such request is conceded and leave is sanctioned only then he can proceed on leave and as such contention of an employee that his absence from duty should be treated towards leave as he has sufficient leave in his credit without formal request for its sanction is not acceptable under the law. In this behalf, reference may be made to rule 7 of the Revised Leave Rules, 1980, which cast duty upon the employee to proceed on leave after getting it sanctioned accordingly not otherwise.

5. It is also to be seen that in the instant case, petitioner has not been non‑suited by the Service Tribunal for the reason that he had no leave in his account or the department may have granted the leave in his favour during the period of his absence without applying formally for the same but for the reason that his departmental appeal has been found barred by time as such the Service Tribunal relying upon the provisions of section 4 of the Service Tribunals Act, following the dictum laid down by this Court in the case of Muhammad Hayat Saleem v. Government of Sindh through Excise and Taxation Department, Karachi and others (2002 SCMR 918) declined the relief to him and rightly so in view of the facts and circumstances of the case.

8. Thus having gone through the impugned judgment carefully, we are persuaded to hold that it does not suffer from any legal discrepancy nor any question of public importance is involved in terms of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, no case is made out for grant of leave, therefore, leave is declined. S.A.K./F‑98/S Leave refused.