1991 PLP (C (PLC(CS))

On receipt of the enquiry report and after completing the necessary formalities the Authorised Officer imposed the minor penalty of withholding of one increment on the accused officer vide impugned order dated 16-6-1987.

3. On an appeal made to the Director, Public Instructions/respondent No. 2 and considering that the appellant's "responsibility for absence is minimal" the appellate authority converted the penalty of stoppage of one increment into censure and further directed that the period of absence from 15-1-1986 to 1-10-1986 be treated as leave extraordinary. (The period should have read as 14-3-1986 to 1-10-1986). The appellant then filed a revision petition with respondent No. 2, who rejected it. The appellant then addressed a revision petition to the Secretary Education, which was, however, not forwarded to the latter by respondent No. 1 i.e. the Director Education, Rawalpindi. The appellant then filed an appeal before this Tribunal which directed respondent No. 2 to forward the above petition pending with him to respondent No. 3 to decide the same within a period two months. Respondent No. 3 finally rejected the revision petition on 25-10-1989 and hence this appeal before the Tribunal.

4. We have heard the counsel of both the parties and have also examined the relevant record produced before this Tribunal. The learned counsel for the appellant has prayed that the instant appeal be accepted among others on the following grounds: "(1) The appellant had been pursuing his request for extension in the deputation period diligently and assiduously. According to him, the honesty of purpose of the appellant was apparent from the fact that the latter applied for extension well before the expiry of the period of deputation and thereafter kept respondent No. 3 fully posted. (2) If Government did not want to grant further extension it could have directed the appellant to report back forthwith but it did not do so. In the absence of any such direction the appellant legitimately presumed that his case was being processed and that extension would be granted eventually as had been done in several other cases. (3) Although the Enquiry Officer had absolved the appellant of the charge of absence yet the Authorised Officer imposed the minor penalty without even mentioning any grounds for not agreeing with the findings of the Enquiry Officer. ' (4) It was in the knowledge of Government that the period of contract entered into with the Government of Nigeria was four years and that it was the policy of Government to allow deputation upto Five years and yet this general policy was not made applicable in the case of the appellant for reasons best known to Government. (5) Although the penalty of stoppage of one increment has been dropped yet the appellant would suffer a recurring loss of one increment due to the period of overstay in Nigeria having been treated as E.O.L, which is more than six months.

5. The learned District Attorney did not agree with the pleas of the learned counsel for the appellant and submitted that the deputationists was duty bound to return to his parent Department after three years period of deputation was over. He added that in the absence of any intimation from the Punjab Government extending his period of deputation the appellant could not overstay in Nigeria beyond 14-3-1986. He, therefore, submitted that the punitive action taken by the Education Department in this case was unassailable.

6. We have given our anxious thought to the arguments of the parties and have also examined the record of this case carefully. The perusal of the relevant papers indicates that the case of the appellant has not been dealt with properly by the Department and due application of mind has not been made in resolving the issue. The terms and conditions of the appellant's deputation contained in Education Department's Notification No. SO (CE-II)2-3/81, dated 5-3-1983 inter alia provide that "Government will have the option to ask the officer concerned to return to duty on the expiry of deputation or quit service if he/she is unwilling to return to home country." This clearly implies that the responsibility of recalling the deputationists at the end of the deputation was that of the Government but the Department did not call the appellant back despite the fact that he had submitted his request well before the expiry of the deputation period. Instead the Department asked him to submit an attested copy of the renewal contract for the period 15-3-1986 to 14-3-1988. In response, the appellant promptly informed the Government that his present contract with the Ministry of Education, Kano would expire on 18-3-1987 and that only then he would be able to get a renewal contract a month before the actual date of expiry. Even then the Department did i not direct the appellant to return to Pakistan.

7. This could only imply, and the appellant was justified in concluding in terms of the conditions Nos. (i) and (viii) contained in the aforesaid Notification dated 5-3-1983, that Government was considering his request for extension and that he would be informed of the results in due course of time. The Department, however, chose to keep quiet on the issue and instead ordered an enquiry against him the moment he returned to Pakistan and himself reported back to the Punjab Government after about six months' overstay. The failure of Government in not recalling him from Nigeria at the end of his deputation in terms of the aforesaid conditions of deputation and especially because he had already requested the Punjab Government for extension and Government had entertained his request and had asked him to submit a copy of the renewal contract, must nave created a genuine impression in the mind of the appellant that the period of deputation will eventually be extended. Government cannot now take benefit of its own omission and penalise the appellant for lack of timely action on its own part. We arc supported in this view by the Supreme Court of Pakistan's judgment in 1990 S C M R 1170: Government of the Punjab through Secretary, Health and two others v. Zahid Beg in which a similar view was taken by their Lordships.

8. In this connection we would also like to refer to the following observations made by this Tribunal in Appeal No. 552/66 of 1986: Miss Sajida Hanif v. D.P.I. Colleges, Punjab and others: ...The respondents have been accepting not only the pension contribution but also entertained the applications of the appellant for extension of deputation period as is clear from letters dated 25-10-1982 and 9-4-1983 and failed to decide the request of the appellant throughout this period. Once the respondents entertained the request for extension of deputation period, they were under legal obligation to decide the same and so long as the applications remained under consideration, the appellant cannot be treated as absent from duty. We have already pointed out in similar cases that cases of deputationists are dealt with in a very lethargic mariner and according to the convenience of the subordinate staff. The -respondent No. 1 should have framed a uniform policy as to the extensions in the period of deputation and immediately on the expiry of said period, the action for unauthorised absence should be initiated:'

9. Department in the matter of processing of cases of foreign There appears to be no yardstick for awarding punishment to those One could be let off with a simple censure even if he had overstayed for years together. On the other hand, the second man could be thrown out of service for overstaying for only a few months. And we feel like agreeing with the very apt observation made by the Enquiry Officer that had the appellant stayed on in Nigeria and obtained a new contract his case of extension would in all probability have been sanctioned by Government

10. Resultantly, the appeal succeeds and the impugned orders are set aside. There are no orders as to costs. M.Y.H./338/Sr. P'' Appeal allowed.