1991 PLP 1145 (SCMR)

Asif Hussain Siddiqui, Advocate Supreme Court instructed by Manzoor Elahi, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 19th February, 1990. ABDUL QADEER CHAUDHRY, J.‑The respondent Muhammad Shaft was serving at Khanewal when he was transferred to Muzaffargarh Division but he did not join there. He was proceeded against for absence of duty and then removed from service. The respondent filed an appeal before the departmental authority and his removal from service was converted into compulsory retirement from the date of his removal. The respondent challenged this order before the Service Tribunal on the ground that his absence from the duty was on account of his serious illness. In support of such contention he submitted a medical certificate issued by a competent medical practitioner. The learned Tribunal after considering the facts of the case allowed the appeal. The operative part of the order reads as hereunder:‑‑ "As we see from orders dated 16‑2‑1985 (Annexure H) and 27‑6‑1985 (Annexure O) and explanation letter R/5 dated 4‑9‑1984, the only basis for the appellant's compulsory retirement from service was his absence from duty without leave for the period from 8‑7‑1984 to 19‑1‑1985 about which the competent Authority's finding was that it was wilful and without any justification. This seems to have clearly been contradicted by Office Order No.75/T dated 25‑11‑1985 passed by the Superintending Engineer (East) Wapda, 2nd Circle Multan, whereby the appellant was granted earned leave with effect from 8‑7‑1984 to 19‑1‑1985 (6 months 12 days) on medical grounds. As it appears from the order, this leave was sanctioned. without any substitute on last pay drawn and the arrears of pay amounting to Rs.9,634/53 for this period were also paid to him as we have seen from payment voucher dated 30‑1‑1986. In view of this order, therefore, we have been left with no alternative but to hold that the appellant's absence from the office was on account of illness and by no means deliberate, as could have justified either his removal or compulsory retirement from service. The very basis of disciplinary action against him has been taken away and it is no longer factually correct that the appellant's absence from duty was wilful and that amounted to misconduct under Rule 5 of the Rules, as could have been relied upon as ground for any punitive action."

2. We have heard the learned counsel for the respondent. He submitted that the petitioner was transferred to Muzaffargharh Division but he failed to report for duty. The Tribunal has considered all the aspects of the case. The respondent was granted earned leave on medical grounds by the competent authority and his arrears of pay were also paid to him. On such a view of the matter it cannot be said that the respondent was absent from duty without any sanction of leave. The facts have been clearly narrated in the impugned judgment.

3. No question of law is involved in this petition. The petition has no force. Leave to appeal is refused and the petition is dismissed. AA./C‑51/S???????????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.