2001 PLP (C (PLC(CS))

SYED DEEDAR HUSSAIN SHAH, J.,

The petitioner seeks leave to appeal against the, judgment dated 13-11-2000, passed by the Federal Service Tribunal, Islamabad, in Appeal No. 1053(K) of 1999.

2. The facts, in brief, are that Shaukat Hayat Qazi-respondent, Deputy Director (Adorn.) in the Office of Chief Engineer (Operation and Maintenance), WAPDA, Jamshoro, was transferred in the same capacity to the Office of Chief Engineer (Material Inspection) WAPDA, Lahore vide Order No.D(CM)D/09981-1/25674-72, dated 24-10-1998. He was relieved on 2-11-1998, but he did not join his new posting and submitted an application on 20-11-1998 to the Chief Engineer (M1), WAPDA, Lahore on the ground of some family problems. On 24-2-1999, explanation letter was issued to the respondent alleging therein that he had committed acts of commission and omission, i.e. remained absent front duty with effect from 2-11-1998, and he was prima facie guilty of misconduct as defined under, rule 2(5) of the Pakistan WAPDA Employees (E&D) Rules, 1978. Respondent submitted his reply on the explanation on 21-3-1999 supported by medical certificates. However, he was called upon to appear personally on 22-4-1999., The respondent took over the charge on 21-5-1999, but before that he was served with a show-cause notice under rule 6 of the Pakistan WAPDA Employees (E&D) Rules, 1978 on 29-4-1999/4-5-1999, to which. he submitted a reply. He was required to appear for personal hearing on 5-6-1999. However, on 5/11-6-1999 the competent authority passed the following orders: "After going through the abovementioned documents and hearing the officer in person, the undersigned is convinced that the charges levelled against Mr. Muhammad Shoukat Hayat Kazi, Deputy Director (Adorn.) in the letter of explanation are established. The undersigned in the capacity of competent authority has, therefore, decided to impose major penalty of "compulsory retirement from service" upon him in light of Rule 4(1)(b)(ii) of the Pakistan WAPDA Employees (E&D) Rules, 1978. (Sd.) Brig. General Manager (Adorn.) (Saeed Ahmad Rafi)."

3. Being aggrieved; respondent preferred a departmental appeal within 60 days, but his appeal was dismissed on 21-9-1999.. Respondent approached the Federal Service Tribunal through Appeal No. 1053(K) of 1999, which was allowed and the appellant-WAPDA was directed to reinstate the respondent in service from the date he was retired compulsorily. However, the Tribunal observed that since the respondent did not join: his new assignment nor he applied for grant of leave well in time, as such he be penalized with reduction to one lower stage in time scale for one year. Hence, this petition by WAPDA.

4. Learned counsel for the petitioner. inter alia, contended that no doubt the Service Tribunal has authority to review the disciplinary action taken by Department concerned, but this review is limited to the extent, whether the quantum of action is at par with relevant provisions of Service Rules or Regulations or not; that while exercising such power, the Service Tribunal is required to record cogent reasoning for setting aside the action taken by the competent authority that in the case in hand such reasons are lacking; that the Tribunal' has taken a wrong view that the case of the respondent falls within the ambit of Rule 5(a) of WAPDA Employees (E&D) Rules, 1978; whereas the present case is covered by 'misconduct' as defined in Rule 2(5) of the ibid Rules. Learned counsel has relied on WAPDA v. Shan Elahi (NLR 1999 Lahore 1).

5. We have considered the arguments of the learned counsel for the petitioner and perused the record as well as the impugned judgment. It is not disputed that the respondent had put in service for over 16 years and the record shows that not a single instance had been referred by the petitioner that the respondent had ever remained absent or that there was any allegation against him with regard to corruption or misappropriation. The sole allegation against him was that he did not join his new assignment at Lahore 13 when he was transferred and relieved on 2-11-1998. From the record it is crystal clear that on 20-11-1998 the respondent had submitted an application the Chief Engineer (MI), WAPDA, Lahore, that he was unable to join duties due to his family problems. Despite that his explanation was called for, to which he submitted a reply al9ngwith medical certificates and ground ailment of his sister. Federal Service Tribunal considered the entire case in proper perspective. In the case-law, referred to by the learned counsel, there was deliberate absence of the civil servants for different periods, but in the present case absence of the respondent, in any case, cannot be termed as wilful absence or desertion from duty, but it was due to compelling circumstances. The precedent cited by the learned counsel is thus not helpful the petitioner. It would be very pertinent to refer to paragraph 8 of the impugned judgment, which reads as under:-- "Admittedly the appellant joined the respondents on 12-9-1982 as Assistant Director (Adorn.) after qualifying the Competitive Examination. Subsequently after clearing the Departmental Promotion Examination he was promoted as Deputy Director (Adorn.) on 23-11-1992. Right from the date of his joining the respondent-department, no document has been produced which could show that the appellant had ever remained disobedient or had committed any act of insubordination excepting the present one, which of course, was under compelling circumstances, as such, the order of compulsory retirement passed,by the competent authority appears to be rather harsh because the appellant has served the department in the early days of his youth and this type of order after about the lapses of over 16 years will put him under mental torture and agony and he will have no other chance to serve anywhere because he must have crossed 40-4 years of his age and in case he is retired from service there will be total frustration not for him but to his entire family. Accordingly we accept the appeal and set aside the impugned order, dated 5/11-6-1999 and direct the respondents to reinstate the appellant into service from the date he wits retired compulsorily. Since he did not join his new assignment nor he applied for grant of leave well in time, as such, he be penalized with reduction to one lower stage in time scale for one year. The period which he remained absent from duty be treated as leave on half average pay and the remaining period for which he remained out of job be treated as leave of the kind due."

6. The impugned judgment is based on sound reasoning and within the parameters laid down by this Court. Moreover, no important question of law as contemplated under Article 212(3) of the Constitution of the Islamic Republic of Pakistan is involved. We find no substance in the petition, which is hereby dismissed and leave is refused. H.B.T./W-23/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.