2004 PLP (C (PLC(CS))

DR. Moinuddin CAO in attendance. Date of hearing: 17th February, 2003. AKBAR M. MEMON, MEMBER.‑‑‑Heard appellant in person and so also Mr. Niaz Ahmed Khan, standing counsel for the respondents. D.R. Mr. Moinuddin, CAO in attendance.

2. The appellant, while giving the details of his woe and misery, has contended that he had served the respondents for seventeen (17) years without any adverse entry In the month of May, 1992 he received a memorandum that he is highiy irresponsible, indisciplined worker, late comer, absconder and has always been showing indifferent attitude A towards his service, as such, he was required to explain as to why disciplinary action should .not be taken against him. On receipt of the said letter, he explained his position and submitted that he had some family problems due to which he was upset and could not attend the office. He was issued a show‑cause notice on 22-9‑1992 which was replied, but on 6‑10‑1992 he was dismissed from service. He has contended that, thereafter, he filed a departmental appeal before the respondents on 12‑4‑1993 and on 20‑7‑1993 he was informed that his application was under consideration and as soon as the same was finalized, such intimation would be sent to him. Thereafter, he filed an application on 23‑12‑1993 and subsequently, he went in shock and coupled with his family problems, he became a psychic and remained under treatment of psychiatrist for number of years. In the meantime he had an attack of jaundice, as such, he filed another departmental appeal on 5‑8‑1999. He has lastly contended that since he has been rendered jobless on the sole ground of absence without holding proper inquiry and without affording him any chance to put his case he is still under stock and is not in a position to earn bread and butter for his family. He has contended that considering the fact that he has to support large family, his appeal be admitted so that the same be decided on merits.

3. Mr. Niaz Ahmed Khan, learned standing counsel, while referring to the pre‑admission comments, has contended that the appellant throughout the period of his service has remained indisciplined and his performance was not upto the mark, as such, considering his absence of eighty four, (84) days only in year 1992, he was dismissed from service on 5‑10‑1992. He has further contended that he was informed of the rejection of his appeal, but he did not approach the Tribunal well within time and has filed the present appeal after eight (08) years, as such, on the point of limitation his appeal is liable to be dismissed.

4. After hearing the arguments of the appellant as well as the learned standing counsel, we have gone through the appeal file.

5. Apparently, there is no document, which could show that the respondents had informed the appellant about rejection of appeal, though such mention has been made in the comments, but no document whatsoever has been filed to this effect. Even no document has been filed which could show that the canons of natural justice were followed whereby any inquiry was conducted against the appellant or that any chance was afforded to him to put his defence. The only ground on which the appellant has been dismissed from service is that of absence, B but looking to the mental condition of the appellant, we, while, considering the application for condonation of delay leniently and looking to the demeanour of the appellant, admit the appeal subject to all just legal exceptions. Security as per rules and are of the view to proceed with the matter as under.

6. There is no denial of the fact that the appellant is presently a psychic case on account of frustration, which he has faced right from 1992 till today as he has remained out of job and is still not in a position to earn proper livelihood for his family. Papers show that the this stage of affairs started from 1976 and to 1989 and it further aggravated from 1991 till the day he was dismissed from service. The obvious reasons as has come from the papers is that the appellant had some family problems, which he used to bring to the notice of the respondents, but the respondents instead of taking any lenient view have straightaway dismissed him from service. The better course for the respondents was to have referred the appellant to some psychiatric, but this was not done. Now when he has reached to a stage where he was not able to work it was better for the respondents to order his retirement from service, but instead of doing so they have straightaway dismissed him from service, which in our view is too harsh. Accordingly, without proceeding further we would like to convert the penalty of dismissal from service to that of retirement from service, on compassionate grounds, as the appellant is root more able to work in the Department on account of weak mental faculties. With this modification, appeal stands disposed of with directions to the respondents to prepare the pensionary papers of the appellant within three months of this order so that he may be able to feed his family which has remained under mental torture and agony right from 1992 till today. 6‑A. In view of the above observations, there will be no order as to costs. Parties be informed accordingly. H.B.T./255/FST Order accordingly.