2013 PLP 887 (SCMR)

ANWAR ZAHEER JAMALI, J.

This civil appeal, by leave of the Court, arises out of judgment dated 7-5-2010 in Appeal No.59(K)CS/2008, passed by the Federal Service Tribunal, Karachi Bench (in short "the Tribunal"), whereby the said appeal was allowed; impugned order of the competent authority dated 3-2-2008 was set aside; respondent No.3 Abdul Rasheed was ordered to be reinstated in service from the date of his dismissal; the punishment awarded to him was modified to withholding of three increments for a period of three years without cumulative effect and the period of his absence from service was ordered to be treated as leave of the kind due.

2. Syed Ashique Raza, learned Deputy Attorney-General on behalf of the appellant contends that respondent No.3 Abdul Rasheed was employee of a disciplined force (Thar Rangers). He admittedly remained absent from duty for a period of 1-year, 8-months and 25-days on the pretext that due to earthquake in October 2005, his house was damaged and for that reason neither he could inform the concerned authorities for taking leave from his duty nor he could report for duty before 1-12-2007. He further argued that in such circumstances, the guilt of respondent No.3 was fully established from the record and also admitted by him, therefore, it was not a fit case where the Tribunal should have interfered in the exercise of discretion by the competent authority awarding him the major punishment, which was quite justified looking to the facts and circumstances of the case. He lastly argued that no cogent reason has been assigned by the Tribunal in upsetting the punishment awarded to respondent No.3 by the competent authority, although such discretion was required to be exercised by the Tribunal in a judicious manner, keeping in view all the relevant aspects of the case and not in an arbitrary manner or on so called humanitarian considerations, which totally lacked in this case.

3. Respondent No.3 in his reply concedes that after having taken leave for two months, he remained absent from duty for a period of 1-year; 8-months and 25-days without any intimation and it was in this background that ultimately, after due proceedings, he was dismissed from service on 3-2-2008, and the departmental appeal against such order remained un-responded.

4. We have considered the relevant facts of the case and examined the material placed on record, which reveals that the guilt of respondent No.3 was proved from his own admission as well as from record and it was in these circumstances that he was awarded major punishment of dismissal from service vide order dated 3-2-2008. The Tribunal, while setting aside order of his dismissal from service and awarding him lesser punishment of three years' stoppage of increments without cumulative effect, has not assigned any cogent reason for this purpose. As a matter of fact the Tribunal failed to notice that earthquake had occurred in the northern areas of the Country in the month of October, 2005, while respondent No.3 had taken leave from 28-1-2006 to 27-3-2006, therefore, for remaining absent for a long period thereafter, no such ground was available to him and exercise of such discretion by the Tribunal is, thus, arbitrary, fanciful and not sustainable in law.

5. For the foregoing reasons, this appeal is allowed, impugned judgment of the Tribunal dated 7-5-2010 is set aside and order of the competent authority dated 3-2-2008 of dismissal from service of respondent No.3 is restored. MWA/D-1/SC Appeal allowed.