2015 PLP (C (PLC(CS))

AMIR HANI MUSLIM, J.

This appeal, by leave of the Court, is directed against order dated 28-5-2011, passed by the Federal Service Tribunal, Islamabad, whereby appeal filed by the appellant was dismissed as barred by time.

2. The facts material for the decision of the present appeal are that on 4-4-2005 the appellant was appointed as Income Tax Officer. He applied for leave to prosecute studies for LLM degree. The competent authority did not sanction the leave. Having left with no option, on 31-3-2006 the appellant tendered his resignation from service, which statedly was not processed despite efforts made by the appellant for acceptance of the same. On 13-11-2008 a show-cause notice was issued to the appellant on the ground of his absence from duty under the provisions of Removal From Service (Special Powers) Ordinance, 2000, which was received by the appellant on 14-11-2008. On 20-11-2008, the appellant submitted his reply to the show-cause notice, but no response was received to the appellant, therefore, on 21-7-2009, he sent a reminder to the Competent Authority for decision on the reply to show-cause notice. As per pleadings, on 17-8-2009, the appellant received a copy of Notification dated 17-1-2009, entailing penalty of his dismissal from service.

3. On 9-9-2009, the appellant filed departmental appeal, which was not responded to. The appellant preferred Writ Petition No.1123 of 2011 before the learned Lahore High Court, which was disposed of with the direction to the Competent Authority to decide the departmental Appeal of the appellant expeditiously, preferably within a period of one month. After the direction of the learned Lahore High Court, the Competent Authority passed order dated 9-3-2010 dismissing the Departmental Appeal of the appellant as time barred, which order was received by the appellant on 2-3-2010.

4. The appellant challenged the findings of the Appellate Authority dated 9-3-2010 before the Federal Service Tribunal. This Appeal of the appellant was dismissed by the learned Tribunal, being hopelessly barred by time, vide impugned order dated 28-5-2011. Hence this Appeal.

5. The learned Counsel for the appellant has contended that once the department refused the leave to the appellant to proceed abroad for higher education, the appellant immediately tendered resignation from service on 31-3-2006 and waited for its acceptance. He submitted that under Sl.No.14 Esta Code (P-466) on receipt of resignation, the department concerned is required to forward it immediately to the Competent Authority and ask the Civil Servant concerned to wait until resignation is accepted. In this case, the department wilfully avoided to process the case, in defiance of the instructions contained in Esta Code at Sl.No.16 (P-467), which required the Ministry/Department to forward the case of acceptance or otherwise of the resignation of a Civil Servant well in time.

6. It is next contended by the learned Counsel that on account of the impugned order of the Tribunal the future of the appellant is stigmatized for no fault on his part. He submitted that after tendering the resignation, the appellant waited for a long time and on 13-11-2008 the appellant received a show-cause notice from the department after more than two and half years of his tendering resignation. The learned Counsel next contended that the appellant was not intimated by the Department about the fate of his resignation instead the appellant was served with a show-cause notice with unexplained inordinate delay, whereafter the appellant was dismissed from service though he was a probationer and could have been discharged from service instead of being awarding major penalty of dismissal from service.

7. The learned Counsel for the respondents has submitted that under the Esta Code, a Civil Servant who absents himself after tendering resignation, can be proceeded against and awarded major penalty. He, however, could not offer any plausible explanation for not processing the case of resignation of the appellant except that the personal file of the appellant was misplaced.

8. We have heard the learned Counsel for the parties and have perused the record. We inquired from the learned Counsel for the respondents to justify issuance of show-cause notice after inordinate delay of 2-1/2 years and directed him to place before us the original record. Today, the original record was placed before us and we had noticed that on 31-3-2006 the appellant tendered his resignation but his case was not processed for 2-1/2 years on the ground that his personal file was missing. Thereafter, the department instead of processing the case of resignation of the appellant opted to proceed against him departmentally for absence from duty. We have failed to understand as to how the department can sit over the resignation of the appellant once it was tendered. In case the personal file of the appellant was missing the Head of the department should have ordered enquiry and should have proceeded against the delinquent officers/officials found responsible for misplacing the personal file of the appellant.

9. We inquired from the learned counsel for the respondents as to the action that has been taken against the officers/officials who were responsible for misplacing the personal file of the appellant. We were informed that one Additional Commissioner was responsible for it and his explanation was sought. We record our displeasure over the inaction against the Additional Commissioner who was found responsible for misplacing personal file of appellant. It appears that the concerned quarters do not proceed against officers/ officials, who under the Law/Rules/Regulations are responsible for expediting the process of resignations of the Civil Servants well in time and are left free for such lapses to the disadvantage of the persons like appellant.

10. For the aforesaid reasons, we in the given circumstances, do not find any justifiable reasons to maintain the findings of the departmental authority and/or the order of the learned Tribunal passed on the ground of limitation, which orders have adverse effect on the career of the appellant, who is a young man of 32 years and has a long way ahead.

11. We, therefore, direct the Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of the Civil Servants be immediately processed and the concerned Civil Servant be also informed about its fate forthwith as per Rules. The delinquent officers/officials who cause delay in processing such cases be made accountable and proceeded against departmentally. This Appeal is allowed with the above directions. MWA/Q-1/SC Appeal allowed.