2021 PLP (C (PLC(CS)N)

CH. MUHAMMAD IBRAHIM ZIA, CJ.

The captioned appeal by leave of the Court has been filed against the judgment of the Service Tribunal dated 24.07.2018, whereby the appeal filed by the appellant, herein, has been dismissed.

2. The brief facts of the case are that the appellant, herein, was permanent employee of the Health Department, serving as the Water Carrier/ Chowkidar. He was proceeded under the provisions of the Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001 on the allegation of absence from duty for a long period. Ultimately, in the light of report of the inquiry officer, he was removed from service vide order dated 06:05.2011 and respondent No.4, herein, was appointed at his place vide order dated 13.05.2011. He filed an appeal before the Service Tribunal while challenging the aforesaid orders on the ground that he has not been provided a chance of hearing. After necessary proceedings, the learned Service Tribunal vide impugned judgment dated 24.07.2018, dismissed the appeal, hence, this appeal by leave of the Court.

3. Ch. Muhammad Manzoor, Advocate, the learned counsel for the appellant after narration of the necessary facts submitted that the findings of the departmental authority as well as the Service Tribunal are against law and the facts. The appellant is a permanent civil servant who remained present on duty but he has been shown absent from duty with mala fide. He submitted that the service of the appellant has been terminated without holding any proper inquiry. Neither any notice was served upon him nor he has been associated in any inquiry, thus, the whole proceedings are against law. He also referred to the document (Annexure "PF", the certificate allegedly issued by the District Health Officer, wherein it has been certified that the appellant remained present on duty till May, 2011. He submitted that this document has also not been considered by the learned Service Tribunal, thus, on this sole ground while accepting this appeal the impugned judgment as well as the departmental orders are liable to be set-aside.

4. Conversely, Sardar Karam Dad Khan, Advocate-General representing respondents Nos.1 to 3 and 5 and Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for respondent No.4 forcefully opposed the appeal on the ground that the arguments advanced are misconceived. The appellant remained absent for a pretty long time i.e. five years. Time and again the notices were issued to him but neither he applied for any sanction of leave nor responded to any show-cause notice issued to him. They further argued that the first notice was issued to the appellant on 11.08.2006, second on 24.12.2006 and third on 23.09.2006. The matter remained under consideration of the authority for quite long time and ultimately an inquiry committee was instituted under the provisions of Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001, vide order dated 16.03.2011. Consequently, after completion of the inquiry he was removed from service vide order dated 06.05.2011. The vacant position was advertised on 07.05.2011 in the newspaper and after due process and selection of candidate on merit, respondent No.4 was appointed vide order dated 13.05.2011 but despite this the appellant not only remained absent but also failed to challenge the departmental order within the prescribed limitation. Even the appellant admitted these facts in his appeal before the Service Tribunal. So far as the alleged certificate, allegedly issued by the District Health Officer is concerned, it is fake. Neither this document was relied in the pleadings nor was produced before the Service Tribunal. He has failed to prove the alleged disputed facts by production of any evidence, thus, the action taken by the authority is against law. This appeal is not maintainable and liable to be dismissed.

5. We have heard the learned counsel for the parties and gone through the record. The appellant on one hand in paragraph of his memo of appeal before the Service Tribunal, has himself categorically mentioned that respondent No.4 was temporarily appointed against his vacancy on 29.08.2009 but on the other hand he claims that he throughout remained present on duty. To justify this, the learned counsel for the appellant has referred to the document (Annexure "PF"), the certificate allegedly issued by the District Health Officer, Muzaffarabad. Irrespective of the question whether this document is genuine or produced before the Service Tribunal or not, it itself makes the claim of the appellant self-contradictory. On one hand, he claims that against his post respondent No.4 was temporarily appointed on 29.08.2009 and on the other hand he claims that he remained present on duty till May, 2011, thus, his claim is self-destructive. If his stand that against his post respondent No.4 was appointed on 29.08.2009 is correct then why he did not challenge the order before any forum within the prescribed limitation? On this score, he does not deserve for any relief.

6. So far as the certificate relied upon by the counsel for the appellant is concerned, the learned counsel for the respondent has rightly pointed out that neither this document was relied upon nor produced before the Service Tribunal. The referred document is facsimile copy, neither it is attested nor original, thus, legally such document is not admissible in evidence. If for the sake of argument existence of this document is presumed, even then it has no value because to prove such factual question the appellant should have produced evidence before the Service Tribunal but he failed to do so. In this state of affairs, the appellant failed to point out any illegality or infirmity in the impugned judgment justifying interference. Mere argument that the proceedings of the inquiry have not been conducted according to law is no ground because it is the duty of the appellant to justify his absence from duty. This Court in the case reported as Farhat Aziz v. Azad Government and others [2018 SCR 109] held that:- "

6. Under the provisions of Azad Jammu and Kashthir Civil Servants Act, 1976 and the rules made thereunder, the civil servants as well as the employees of statutory body are bound to follow the prescribed law in the prescribed manner and no one according to his own sweet-will can opt to remain absent for years' period and thereafter approach the Court for relief. According to the settled principle of law, the relief in the extraordinary writ jurisdiction is discretionary and the foremost condition for grant of such relief is that the party has to approach the Court with clean hands. The remedy under the extraordinary writ jurisdiction cannot be granted to justify the illegal acts of a person who approaches the Court with unclean hands just to misuse the process of law and the Courts. While dealing with almost identical proposition this Court in the case reported as Dr. Ashiq Hussain Bhatti v. Azad Government and others [2016 SCR 365], held that:- '

7. So far as the argument of the learned counsel for the appellant regarding entitlement for leave according to his length of service is concerned, it has no substance as the appellant himself has submitted that after availing sanctioned leave, he remained absent from duty for a pretty long period without any duly sanctioned leave by the competent Authority. No doubt, the privilege of leave is available to the civil servants but for taking benefit of the same, there is a mode prescribed by law, especially the Leave Rules. It is not the sweet direction of the civil servant to remain absent without adopting proper course provided by law for sanction of leave and that too for more than 5 years' period. Therefore, this argument having no substance is hereby repelled.' Same principle has been followed in the case reported as Azad Jammu and Kashmir Government and others v. Mehr-un-Nisa and others [2016 SCR 594], wherein, it has been observed at under:- 'The superior courts of Pakistan and Azad Jammu and Kathmir have time and again held that a civil Servant having remained absent from duty for more than five years ceased the status of civil servant. The respondent has not come in the High Court with clean hands. The impugned judgment of the High Court is based on surmises and conjectures, which is liable to be set aside.' Similarly, in an unreported case titled Tariq Mehmood v. Azad Government and others [Civil Appeal No.164/14 decided on 22.11.2017), this Court held that:- '

6. The contention of the learned Advocate representing the appellant that it was enjoined upon the department to intimate the appellant about the fate of the applications submitted by him from abroad for extension in deputation period, it devoid of any force. Firstly; it is not proved that the applications were duly submitted to the department for extension in the deputation period and secondly; if it is assumed that the applications for extension were, in fact; submitted; even then the department has hot taken any action upon them, therefore, it was the duty of the appellant, herein, to report back in the department immediate after expiry of his deputation period. The appellant, herein, has deliberately absented himself from the duty and remained serving outside the country. It may be stated that for further education, it was enjoined upon the appellant to get the study leave properly sanctioned and thereafter joined the college for the purpose. In absence of proper sanction of the leave, absence/misconduct committed by the appellant cannot be condoned.' In this state of affairs, the impugned judgment of the High Court is well in accordance with law calling for no interference. The petitioner has failed to make out any valid ground for grant of leave." In this regard, the latest view has been expressed in the case reported as Muhammad Bashir Lakhesar v. Government of Punjab and others [PLD 2019 Lahore 1], In which it has been observed that:- "

21. Moreover, there is chain of judgments of honorable Supreme Court of Pakistan wherein, long absence from duty without intimation as treated as gross misconduct which entails dismissal from service. Reliance is placed on Director-General, Pakistan Rangers v. Federation of Pakistan and 3 others [2013 SCMR 877], relevant Para is reproduced for ready reference as under:- '

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 03.02.2008. 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 28.01.2006 to 23.03.2006, 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 07.05.2010 is set aside and order of the competent authority dated 03.02.2008 of dismissal from service of respondent No.3 is restored." For the above stated reasons, finding no force this appeal is dismissed with no order as to costs. SA/40/SC (AJ&K) Appeal dismissed