2001 PLP (C (PLC(CS))

The appellant Muhammad Hussain, an Ex-Daftri of the office of Director Land Records, Lahore has challenged .the order of his dismissal from service dated 30-11-1978 through this appeal.

2. The facts of the case briefly are that the appellant was recruited as Naib Qasid in the office of Director Land Record, Lahore on 1-10-1953 and continued to serve the department till 30-11-1978. He applied for two years extraordinary leave-under rules with a view to attend to his domestic affairs. The leave was duly sanctioned by the Director Land Records vide order dated 26-4-1977 and the appellant proceeded on leave accordingly. It was, however, in September, 1978 when-one Muhammad Siddique Daftri of the Directorate made a complaint to the competent Authority that the appellant had proceeded abroad without permission of the department and-thus, had committed misconduct. The Director Land Record cancelled the leave and ordered initiation of disciplinary proceedings against the appellant. The appellant was consequently dismissed from service vide impugned order.

3. It is submitted by the learned counsel for the appellant that he had put in prime of his life in service and the best days of his life were consumed in the office for 24 years. He has been dismissed from service without issuance of any show-cause notice and without affording any opportunity of hearing. It has, therefore, been prayed that accepting the appeal, appellant may be reinstated in service with full back benefits.

4. The department has refuted the assertions made in the appeal and has objected to the maintainability of the appeal on the ground that no representation has been filed and the appeal was also time-barred. It is further submitted that notice was issued to the appellant but he failed to turn up and consequently a proclamation was issued in daily Nawa-e-Waqat, and after ensuring that he had failed to appear despite these processes, the department ordered his dismissal from service vide detailed order dated 28-11-1978.

5. It is submitted by the learned counsel for the appellant that he had not concealed that after obtaining leave he had proceeded to Saudi Arabia because he had already been in Government service for about a quarter century and had failed to earn enough to support his family. Although this was not a proper and fair step on his part, nevertheless, it did not warrant imposition of a major and the maximum penalty. The ends of justice could have been served by imposing a minor penalty of censure or the like. 6. 'The learned D.A. on the other hand argued that departure to a foreign country on the basis of leave obtained for domestic affairs is a misconduct of gross nature and the penalty has been rightly imposed upon the appellant.

7. Arguments have been heard and record has been perused.

8. The appellant has not concealed that after obtaining leave, he had proceeded to Saudi Arabia and since he had put in a long service, had unblemished service record and he had not been able to properly maintain his family with his meagre pay, a chance was available to him to improve his earnings, and as such, he went to Saudi Arabia. Departure to a foreign country of a civil servant without obtaining leave is indeed very objectionable act, nevertheless while deciding such matters, one should realize the ground realities. We in the country have not been able to provide a situation where people are properly rewarded for their labour and due to the malpractices with which we are afflicted for the last 50 years, people are obliged to proceed abroad for better earnings, as such, people are induced to go abroad for better living.

9. In this view of the matter it appears that the penalty imposed upon the appellant is not commensurate with the guilt attributed to the appellant and a-lesser penalty of compulsory retirement would have met the ends of justice.

10. The appellant has served the department -for about a quarter century and according to the office report, there is nothing adverse against him, as such, the appeal is partly accepted and the penalty of dismissal is altered into that of compulsory retirement and consequently he shall be entitled to all benefits concomitant to his compulsory retirement w.e.f. the date of such retirement.

11. In the given circumstances the delay, if any, is condoned. H.B.T./23/P (Sr. Trib.)?????????????????????????????????????????????????????????????????????? Order accordingly.