2005 PLP (C (PLC(CS))

Dr. Ehsan ul Haq for the Appellant. Khadim Hussain Sindhu District Attorney. Javed Iqbal, Court Clerk, TMA Gujrat Departmental representative. Date of hearing: 27th December, 2004. Muhammad Jamil Saleemi, former Superintendent, Municipal Committee, Gujrat has come in appeal bringing in (challenge order dated 10‑8‑2004 whereby he was removed from service by the Tehsil Nazim, Tehsil Municipal Administration, Gujrat while proceeding under the provisions of the Punjab Civil Servants (E&D) Rules, 1999 read with Punjab Local Councils Servants (Service) Rules, 1997. Appeal of the appellant to the District Coordination Officer, Gujrat remained unattended within the statutory period, therefore the recourse was made through the instant appeal for the redressal of the grievances.

2. Appellant was served with the show‑cause notice under the Punjab Removal from Service (Special Powers) Ordinance, 2000 to explain as to why his services be not brought to an end as after expiry of leave on 3‑4‑2000, he failed to attend to his duties and remained absent in a willful manner. Appellant stated that he made an application for being retired from service after completing 25 years of service. Earlier he had sought leave for 60 days to perform 'Hajj' which was to ensure upto 3‑4‑2000. The leave was allowed and during leave, he made the application for being retired from service with effect from 30‑12‑1999, as it was his right guaranteed to him under the law, and the Department could not refuse him the request unless there were compelling circumstances available to the authority under the law. The authority did, not find the reply satisfactory and since the appellant did not appear, ex parte proceedings were taken and order of removal from service under the Punjab Local Councils Servants (Service) Rules, 1997 was imposed with immediate effect.

3. Learned counsel for the appellant drew the attention of the Tribunal to rule 3.5 of the Punjab Civil Service Pension Rules, 1963 which states that a Government servant shall, subject to provisions to the Essential Service Maintenance Act has the right to retire on a retiring pension after completing 25 years qualifying service. The reply of the Department in its comments is that the appellant had to process the application and relinquish charge thereafter once the application was made, and having not followed the procedure after expiry of his leave on 3‑4‑2000, he was deemed to be absent from service and after show‑cause notice, which was received but failed to attend, he was removed from service.

4. I am unable to reconcile myself with the stance taken by the respondents. The departmental representative present in Court has made a categorical statement that the appellant while proceeding on 60 days Earned Leave, relinquished the charge which was accepted, therefore, the submission of the application for seeking retirement after 25 years of qualifying service was a mere formality, which had to be granted unless the case of the appellant fell within the Essential Services Ordinance. Nowhere has it been pointed out that the services of the appellant were indispensable for the reasons stated. To the contrary, learned counsel has taken me through the respective documents appended to the Court file wherein on 10‑12‑1999, the authority in response to the request of the appellant to be retired with effect from 30‑12‑1999 has written the word 'Approved', which was later on scratched. This indicates the mala fide intention of the respondents and the subsequent order passed on yet another application of the appellant of similar nature, on 12‑4‑2000, rejecting his request for allowing him retirement with effect from 30‑12‑1999.

5. Yet another aspect of the case which makes the order highly illegal, is that the show‑cause notice to the appellant asking him to show cause why he should not be proceeded for willful absence was issued under the provisions of Punjab Removal From Service (Special Powers) Ordinance, 2000, but the removal from service was passed by the authority under rule 4(iii) of the Punjab Local Councils Servants (Service) Rules, 1997. Under the provisions of Punjab Removal From Service (Special Powers) Ordinance, 2000, all other rules relating to Efficiency and Discipline matters stood abrogated. Therefore, imposition, of penalty on this score alone fell in the realm of illegality.

6. The exercise of option by the appellant after completing 25 years of qualifying service could not be tampered, and the authority had to accede to it. This being the position, appeal of the appellant is accepted, order dated 10‑8‑2004 is set aside. Appellant shall be deemed to have retired from service with effect from 3‑4‑2000. He shall be entitled to pensionary benefits as admissible to him. H.B.T./34/PST Appeal accepted.