1998 PLP 1890 (SCMR)

AJMAL MIAN, C.J.

By this common judgment we intend to dispose of the above four appeals which were filed with the leave of this Court, as same question of law is involved.

2. The brief facts leading to the filing of aforesaid appeals are as follows: The respondent at the relevant time was working as an Assistant Lineman in Kasur Sub-Division No.2, WAPDA Kasur. It seems that the respondent obtained two years' earned leave for the period commencing from 10-10-1986 to 9-10.1988 for the settlement of his private affairs. It appears that again he applied for two years' leave without pay and allowances with effect from 5-1-1989 to 4-1-1991 for bringing into cultivation his barren land. However, this leave was not granted but the respondent did not resume his duties. He was served with a notice dated 11-3-1989 under Rule 5(iv)(b) of The Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978, hereinafter referred to as the Rules, calling upon him to show cause within 14 days of the receipt of the said notice why all or any of the penalties described in Rule 4 of the Rules should not be imposed upon him. However, the aforesaid notice was returned undelivered by the postal authorities with the endorsement that in spite of repeated attempts the respondent was not available. He was dismissed from service by an order dated 24-5-1989. His departmental appeal was also dismissed. Then he filed Appeal No.217(L) of 1989 before the Federal Service Tribunal, which was partly allowed inasmuch as the order of dismissal from service was substituted by an order of reduction to the lowest stage in time scale for a period of two years. It was concluded that Rule 5-A of the Rules was applicable to the case in hand. The aforementioned appeal was not pressed on merits but was contested on the question of quantum of penalty. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider, whether the Tribunal was justified to substitute the above penalty and whether A Rule 5-A of the Rules was attracted to the present case. It was also observed that in C.P.L.A.No.801/L of 1990 having similar facts, leave was already granted. The respondent at the relevant time was a lineman with the appellants i.e. WAPDA. He remained absent from duty for the period commencing from 17-5-1981 to 21-1-1986 i.e. for a period of 4 years, 8 months and 5 days. He was charge sheeted on 27-8-1986. After that an Enquiry Officer was appointed, who did not proceed with the matter. On 11-5-1989 a second Enquiry Officer was appointed, who submitted his report on 12-9-1990; whereby it was held that the respondent remained absent from duty with effect from 17-5-1981 to 30-5-1990, whereby it was held that the respondent remained absent from duty with effect from 17-5-1981 to 30-5-1986 (1840 days) without any information of permission of the competent authority and, therefore, the charge was proved against him. After the above report the respondent was served with a show cause notice dated 30-9-1990, to which he submitted his reply on or about 28-1-1991. He was also afforded personal hearing. After that he was removed from service with immediate effect by an order dated 2-2-1991 His departmental appeal was dismissed on 15-7-1991. Thereupon, he preferred Appeal No.132(L) of 1991 before the Tribunal, which was partly allowed and the penalty of removal from service was substituted by stoppage of annual increments for five years without cumulative effect. In this appeal also the Tribunal held that Rule 5-A of the Rules is applicable. Thereafter the appellants filed a petition for leave to appeal, E which was granted to consider, whether Rule 5-A of the Rules was applicable to the instant case and whether the Tribunal was justified in substituting. the aforementioned penalty in the above terms. In this appeal -the respondent at the relevant time was working as a Stenographer and was attached with the Deputy Director. He proceeded on four days' casual leave for the period from 18-1-1993 to 21-1-1993. He did not resume duty after the expiry of aforesaid leave but sought one months's leave on the ground of his sickness, but the same was refused. On 27-2-1993 the respondent was sent a notice under registered post acknowledgement due by the appellants asking him to resume his duty or to appear before a doctor of WAPDA at Lahore or Faisalabad to get himself examined. The above notice was returned undelivered with the endorsement of the postal authorities to the effect "refused". On 14-3-1993 he was sent another notice under registered post acknowledgement due calling upon him to resume duty within 10 days. The same was also returned undelivered with the remarks "refused". After that a show cause notice was issued in the WAPDA's publication "Khabarnama" of 25th April, 1993. It appears that after that the respondent saw Muhammad Anwar Khan, Junior Superintendent, who informed the respondent that disciplinary proceedings were going on against him for his wilful absence from duty. Thereafter the respondent was served with a notice dated 24-5-1993 under Rule 5(iv) of the Rules calling upon him to show cause as to why one or more minor or major penalties as defined in Rule 4 of the Rules should not be imposed on him. In response to the above notice, the respondent submitted his reply on 11-6-1993, in which he alleged that he fell sick during the aforesaid period. He also produced medical certificates from a Medical Officer of Municipal Corporation, Faisalabad. However, he was removed from service with effect from 22-2-1993 by notice dated 13-6-1993. After availing the remedy of departmental appeal, the respondent filed Appeal No.383(L) of 1993 before the Tribunal, which was allowed partly inasmuch as the penalty of removal from service was converted into complusory retirement with all consequential benefits with effect from 13-6-1993. The period from 21-1-1993 to 12-6-1993 was ordered to be treated as leave without pay. Thereupon, the appellants filed a petition for leave to appeal, which was granted for the reason that leave already granted in C.P.L.A.No.869 of 1992 involving similar question of law. In the above appeal the appellant at the relevant time was working as U.D.C. in the Revenue Office, Cantt: Division, WAPDA, Lahore. He remained absent unauthorisedly for the period from 2-2-1994 to 26-4-1994. He was served with a show cause notice under rule 5(iv)(b) of the Rules, to which the appellant did not submit any reply. Then he was served with a final show cause notice' dated 31-5-1994 calling upon him to show cause as to why any of the major penalties as prescribed in Rule 4 of the Rules should not be imposed on him. To the above show cause notice, he submitted his reply stating therein that he had gone to Samasatta where he fell ill and because of that he did not resume duty. In support of this he produced medical certificates of a private clinic. However, by an order dated 2-7-1994 he was dismissed from service with effect from 2-2-1994. After that the appellant filed a departmental appeal which was dismissed. Thereafter he preferred Appeal No.287(L) of 1994 before the Tribunal which was partly allowed and the dismissal from service was converted into removal from service with effect from 7-2-1994 by the judgment dated 19-3-1995. After that the appellant filed a petition for leave to appeal, which was granted for the reason that leave to appeal was already granted in some other petitions to consider the applicability of Rule.5-A of the Rules.

3. The basic question in the aforementioned appeals is, as to whether rules5-A of the Rules is applicable to the cases in hand? Rule 5-A of the Rules reads as under;- "5-A Procedure for dealing with inefficient and `habitual malingerers If an employee does not perform his duties diligently or is an inefficient worker, or is a habitual malingerer, that, is a late comer, a wilful absentee from duty, or avoids his duties on false pretence a written warning shall be given to him by his immediate superior and if he fails to reform himself, a report shall be made within a period of two months from the date of the notice of warning to the officer named below, who may, without prejudice to the provisions of Rules 5 and 6 after obtaining his explanation, impose on him the penalty of stoppage of increment, for a period of one year, without cumulative effect:- (a) For officials of Grade l to 15 by the superior officer, of Grade-17 and higher grades. (b) For officers of Grade-16 and above by the superior officer, who is two steps higher in grade to the employee. " A persual of above Rule 5-A indicates that if an employee does not perform his duties diligently or is an inefficient worker, or is a habitual malingerer, that is, a late comer, a wilful absentee from duty, or avoids his duties on false pretences, a written warning shall be given to him by his immediate superior and if he fails to reform himself, a report shall be made within a period of two months from the date of notice of warning to the officer named below (i.e. for officials of Grade 1 to 15 by the superior officer, of Grade-17 and higher grades and for officers of Grade-16 and above the superior officer, who is two steps higher in grade to the employee) who may without prejudice to the provisions of Rules 5 and 6 of the Rules after obtaining his explanation impose on him the penalty of stoppage of increment for a period of one year without cumulative effect. . Whereas above clause 5 of Rule 2 of the Rules defines "Misconduct" which inter alia include habitual absence without leave or habitual late attendance [sub-clause (v)j and also conduct prejudicial to good order or service discipline or contrary to WAPDA Employees (Conduct) Rules or unbecoming of an employee and a gentleman and includes any act on the part of a WAPDA employee to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Authority or any officer of the Authority in respect of any matter relating to the appointment, promotion, transfer, punishment retirement or other conditions of service of a WAPDA employee [sub-clause (xii)).

4. We are unable to subscribe to the view of the Tribunal and to the contentions of the learned counsel, namely, Hafiz Tariq Nasim and Mr, Muhammad Asghar Malik that in case of unauthorised absence from duty for any period whatsoever, Rule 5-A of the Rules is attracted. We are of the view that Rule 5-A is applicable when an employee remains absent for more than once unathorisedly for a day or two without leave but it does not cover unauthorised absence of several months or several years as is the case of the respondents. Their cases are covered by sub-clause (xii) of clause 5 of Rule 2 of the Rules i.e. h conduct prejudicial to the goods order or service discipline and thus can entail major penalties provided in Rule 4(b) of the Rules which include dismissal from service or removal from service or compulsory retirement etc, We are, therefore, inclined to hold that the Tribunal has wrongly pressed into service Rule 5-A in the aforesaid cases.

5. Then it was urged by Hafiz Tariq Nasim, who appeared for the respondent in Civil Appeal No.978 of 1993, that under section 5 of the Service Tribunals Act, the Tribunal is competent to substitute any penalty other than which might have been imposed by the employer. In support of the above submission he has referred to the case of Water and Power Development Authority, Lahore and 2 others v. Muhammad Yousaf, Test Inspector (PLD 1996 SC 840), in which it has been held that under the aforesaid provision of the Service Tribunals Act, the Tribunal is competent to confirm or set aside or vary of modify the penalty.

6. There cannot be any cavil with the proposition that the Tribunal is competent to confirm or set aside or vary of modify the punishment but the above power is to be exercised not arbitrarily or capriciously or on the basis of wrong premises or misconception of law. Reference may be made to the case of Pakistan International Airlines Corporation and another v. Shahabuddin and 2 others (1993 SCMR 299), in which it has been held that the Tribunal is competent to alter the punishment for cogent reasons but such alteration should not be arbitrary. In the present case the Tribunal has wrongly held that section 5-A of the Rules can be attracted to which provides maximum penalty of stoppage of increment for a period of one year without cumulative effect. In our view, the substitution of penalties in Civil Appeals Nos. 978 of 1993 and 593 of 1994 were not warranted as admittedly the respondent remained absent unauthorisedly in Civil Appeal No.978 of 1993 for several months, whereas in Civil Appeal No.593 of 1994 for 4 years 8 months and 5 days. However, Mr. M. Asghar Malik, learned ASC appearing for the respondent in Civil Appeal No.593 of 1994, has vehemently contended that since Rule 5-A of the Rules is a special provision relating to habitual unauthorised absence read with clause 5 of Rules 2 of the Rules, the same will exclude the general provision of the Rules. To support his above submission he has referred to the case of In the matter of REFERENCE BY THE PRESIDENT OF PAKISTAN UNDER ARTICLE 162 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN (PLD 1957 SC 219).

7. There cannot be any dispute with the above proposition. However, the question in issue is, whether Rule 5-A of the Rules is applicable to the present case. We have already held that the same is not attracted to in the present cases.

8. It was also urged by Mr. Muhammad Asghar Malik that the facts of the case warranted holding of a regular enquiry which was not held. Since the factum that the respondent in Civil Appeal No.593 of 1994 remained absent for a period of 4 years, 8 months and 5 days was not disputed, the burden was on him to have brought on record some plausible explanation which could have warranted holding of a regular enquiry, which he failed to do.

9. It was further urged by Mr. Asghar Malik that the appellants could not have passed the dismissal order with retrospective effect. In support of his above submission he had referred to the cases of Water and Power Development Authority v. Irtiqa Rasool Hashmi and another (198' SCMR 359), Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCMR 1917), Noor Muhammad v. The Member Election Commission, Punjab and others. (1985 SCMR 1178) and Islamic Republic of Pakistan through the Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad v. Mazhar ul Haq and 2 others (1977 SCMR 509).

10. On the other hand, Ch.- Ghulam Hasan Gulshan, learned counsel for the appellants, has relied upon the case of Amanullah Khan v. WAPDA through Chairman and 3 others (1993 SCMR 1167), in which this Court while declining leave repelled the contention that retrospective order could not be passed in a case of unauthorised absence. It was held that the dismissal date in fact was the date of abandonment of employment by the petitioner/employee.

11. Indeed, it is a well settled proposition of law that an executive order cannot operate retrospectively but the above principle is not applicable in a case in which an employee is proceeded for misconduct on the ground of unauthorised absence from duty. In such a case, the employer will be entitled to dismiss or remove or terminate the services of the employees concerned with effect from the date of unauthorised absence of the employee. In such a case, the employee cannot be treated on duty during the period when he remained absent unauthorisedly.

12. It was lastly contended by Mr. Muhammad Asghar Malik that the respondent in Civil Appeal No.593 of 1994 was in the fact promoted after he resumed that charge of his duty and that the enquiry was concluded after nearly four years. The above fact will not nullify the misconduct which was committed by the respondent by remaining absent for the above long period of several years. We are, therefore, of the view that Civil Appeals Nos.978 of 1993 and 593 of 1994 are deserved to be allowed. The same are, accordingly, allowed; the judgments of the Tribunal are set aside, the order of dismissal from service in Civil Appeal No.978 of 1993 and the order of removal from service in Civil Appeal No.593 of 1994 are restored. However, there will be no order as to costs.

13. As regards Civil Appeal No.867 of 1995, it may be observed that since the Tribunal has substituted the penalty of removal from service by compulsory retirement with all consequential benefits with effect from 13-6-1993 with the direction that the period from 12-1-1993 to 12-6-1993 shall be treated as leave without pay, we could have interfered with the aforesaid order passed by the Tribunal, but we have maintained the same as it cannot be termed as arbitrary or capricious. The appeal is, therefore, dismissal with no order as to costs.

14. As regards Civil Appeal No. 1476 of 1995, admittedly the appellant remained absent uriauthorisedly for the period from 2-2-1994 to 22-6-1994 and the Tribunal modified the order of his dismissal from service to that of removal from service with effect from 2-2-1994. We have already dealt with hereinabove the question of retrospection of the dismissal /removal order, the same needs not be repeated. The judgment under appeal does not call . for interference by this Court. The appeal is, therefore, dismissed with no order as to costs. M.B.A./W-16/S Order accordingly.