1986 PLP (C (PLC(CS))

JUSTICE SHAH ABDUR RASHID (CHAIRMAN).

The appellant, Dr. Muhammad Asif Bhatti, who held the post of Assistant Technological Adviser under the Ministry of Science and Technology, was dismissed from service by the competent authority by order, dated 24-6-1978 under the Government Servants (Efficiency & Discipline) Rules, 1973. His review petition filed on 15-11-1983 having been rejected on 28-12-1983, ,he has come in appeal before us under section 4 of the Service Tribunals Act (LXX of 1973).

2. The relevant facts leading to this appeal are that the appellant after joining as Assistant Technological Adviser on 27-7-1973 was allowed to after on deputation to serve with the Government of Libya for a period of two years commencing from 8-1-1975. The appellant did not return after the expiry of the period of deputation allowed to him. A show-cause notice appears to have been issued in his name and there being no reply on his behalf, the impugned order of dismissal was passed.

3. The record shows that the appellant was informed before the expiry of the period of contract that he shall have to return to take over his assignment under the Ministry of Science & Technology, on the expiry of initial period of his contract and that he would not be allowed any extension. In spite of that, the appellant did not return but instead continued applying to the Ministry on several dates for the extension of his period of deputation. When- it was found that the appellant was not returning to take up his duties under the Ministry, he was issued a notice to show cause why disciplinary action under the Government Servants (Efficiency and Discipline) Rules may not be taken, which may result in "termination" of his service. The learned counsel foe the appellant has contended that it was not due to the fault of the appellant that the period of contract was extended, but it was due to the pressure of the Libyan Government who unilaterally extended his period and did not allow him to return to Pakistan. In this contention, there is no substance, and we have no hesitation in rejecting the same. Certain orders of the Government have been brought to our notice in which it is advised that no officer shall be allowed to remain on deputation abroad for a period of more than five years. The learned counsel contends that since the appellant could be allowed to stay in Libya for five years the competent authority violated its own instructions and insisted upon the appellant for returning earlier. In this argument also, there is not force, inasmuch as, the period of five years is the maximum and not the minimum, which can be allowed to a Government servant for staying abroad on deputation.

4. The learned counsel for State, however, pointed out that in his review petition, the appellant had not requested for re-instatement into service, but had only desired that the order of dismissal may be converted into that of removal/ termination. We have gone through the review petition made by the appellant and we find that nowhere in that petition the appellant asked for re-instatement in service. He only requested for the reduction in the penalty by converting the order of dismissal into that of removal/termination. Since no appeal from an order is competent unless it is departmentally challenged, the appellant I can at the most ask us for the same relief which could be given to him by the Authority having power of review. We have, therefore, to see whether in the circumstances of the case, we should change the order of dismissal to that of order of removal or uphold the order of dismissal. In the show-cause notice, the appellant was not warned that the default on his part would amount to his dismissal from pervice. On the other hand, it was mentioned that if the charge was proved against him, that may lead to the "termination" of his service. No penalty higher than the penalty mentioned in the show-cause notice can be imposed on a delinquent officer. Since the show-cause notice does not speak of dismissal from service, the order of dismissal suffers from illegality. We, therefore, partly accept this appeal by converting the order of dismissal to that of order of removal from service, and order accordingly. A. A. Appeal partly accepted.