1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Mr. Muhammad Yasin Ali entered Government Service as Teacher in 1961.. Having served for about 19 years, lie fell ill and could not attend his duties. As such he remained absent from duty from 28-10-1980 to 24-8-1985 (i.e. four and half years). However, he kept sending applications for grant of leave on medical grounds. After his recovery he reported for duty on 25-8-1985 and produced certificate of fitness alongwith his-report. Somehow he was not allowed to resume his duty, whereupon the appellant preferred departmental appeal but without any success. Thereafter, he filed, the present appeal. . We have heard the learned counsel for the appellant in support of the appeal and learned Government counsel Mr. Abdul Sayeed Khan Ghori on behalf of the official respondents: We have also gone through the relevant documents available on record. It is an admitted position that the appellant remained absent from duty for the disputed period without grant of leave by the competent authority. The argument of the learned Government counsel was that since the appellant remained absent un-authorisedly for more than three years he ceased to be in Government service and as such he was rightly refused to resume his duties. In this connection the learned counsel has relied upon rule 33 of Sind Civil Service Rules which is reproduced as under:-- "

33. Unless Government in view of the special circumstances of the case shall otherwise determine, a Government servant after three years' continuous absence from duty, elsewhere than on foreign service in Pakistan with or without leave, ceases to be in Government employ." On the other hand the learned counsel for the appellant referred us to the authority reported as Mrs. Razia Abbas Ahmad v. Government -of West Pakistan and 2 others P L D 1971 Kar. 234 wherein it was held:-- "It would be further seen that the order passed against the petitioner was for the reason that she had remained on leave with or without permission, for a period beyond five years; it was thus, passed as a result of penalty or punishment being imposed on her. This would even amount to an order of dismissal of the petitioner from service. In any case, since it operates as a severance of the petitioner from the post she was holding, over which she had a lawful claim on permanent oasis. It is clearly an order of removal of the petitioner from service in the meaning of Article 177 of the Constitution The mandate clearly is that a holder of a civil post shall not be dismissed or removed from service or be reduced in rank, unless he has been given reasonable opportunity of showing cause against the action proposed to be taken in respect to him." The above authority shows that the petitioner was entitled to snow-cause notice even if she had stayed away from duties for more than five years with or without leave before bringing end to her service. According to the learned Government counsel, the above authority was not applicable in this case for the simple reason that it speaks of show-cause notice required under the Constitution. He contended that since the appellant was governed by the Service Laws and rules he was not entitled to show-cause notice. We regret we cannot subscribe to the view expressed by the learned Government counsel. In the present case as soon as the appellant was refused to join his duty, I the refusal amounted to severance of the petitioner from his post. Such severance from the post was nothing but the appellant's removal from service as a punishment for having remained absent from duties for over three years. In this connection reference may be made to rule 4 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 which includes "removal" as one of the penalties to be imposed in accordance with the said rules. The appellant was, therefore, required to be dealt with under the above rules before depriving him of his permanent service. Even otherwise the principle of natural justice is that "no. one can be condemned unheard." Even on this principle the appellant was entitled to show cause notice. In a case like present one, the normal course to be followed by authority concerned was that as' soon as the appellant remained absent un-authorisedly the said authority should have, by notice addressed to him on his known address, called upon him to show cause .why his services should not be terminated. Thereafter, he should have proceeded against him further strictly in accordance with aforesaid rules. As against this, the concerned authority took no notice of the appellant's absence as if nothing had happened until he himself reported for duties. Even at that stage procedure envisaged in the above rules' should have been followed for bringing an end to the appellant's services. Merely because he was refused to resume duties, it would not mean that his services stood terminated or he stood removed from service. For this purpose the concerned authority had to pass proper order after complying with legal requirements. The appellant had, admittedly rendered service for 19 years. Since no show-cause notice was given to him, the refusal of the concerned authority to allow him to join service which obviously deprived him of his service of so many years was clearly illegal. Accordingly we accept the appeal and set aside the impugned order by which he was refused to resume his duties. We may, however, clarify that our above order should not be interpreted as to require the authorities concerned to allow the appellant to resume his duties straightaway. Instead the Authorised Officer concerned will proceed afresh in accordance with the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and after affording proper opportunity to the appellant of showing cause, appropriate order will be passed by the competent authority as it deems fit. Accordingly the case is remanded back to the concerned Authorised Officer. S.Q./157/Sr.S Case remanded