1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑While in service as Telegraphist in the Telegraphs and Telephones Department, the appellant was sent on deputation to the Ministry of Posts T&T Kingdom of Saudi Arabia for a period of one year with effect from the date he was to relinquish charge` of his post.

2. Letter dated 8‑6‑1976 issued by the Office of Director‑General, Telegraphs and Telephones Department (Annexure A) conveying the sanction of the President to his deputation laid down certain conditions, two of which are relevant. The first was that the deputation shall commence from the date of relinquishment of the charge of his present post and shall terminate on the day of resumption of duty back in Pakistan. Second, it was laid down that the period of deputation shall be for one year and any extension beyond this period shall not be without prior approval of the Government of Pakistan. It was further specifically laid down that any extension without prior approval of the Government "will be treated as irregularity on the part of Officers/Officials" making them liable to disciplinary action.

3. The period of deputation commenced with effect from the forenoon of 12‑6‑1976. A notice was published in the Daily Nawa‑e‑Waqt, Multan dated 5‑3‑1985 where by the appellant was called upon to report for duty within 15 days of the publication of the notice, failing which proceedings will be held against him under the Government Servants (Efficiency and Discipline) Rules, 1973 which could result in his removal from service. The notice said that he had gone on deputation for a period of one year with effect from 12‑6‑1986; that he failed to report for duty in spite of the fact that the period of deputation had not been extended; that notices were sent by registered post as well as telegraphically on his address mentioned in the service book, that they were received back with the report that no person of the name and description of the appellant was residing at the given address and that notice was being published in the newspaper because service in the ordinary course was not possible under the circumstances. This notice was published under orders of the Superintendent Telegraphs Multan (respondent No. 3).

4. The appellant's case is that he was informed by his family members of the publication of this notice, in consequence whereof he came back to Pakistan on 11‑3‑1985 and reported for duty to the department on 12‑3‑1985. He was allowed to resume duty with effect from 7‑5‑1985 by respondent No. 3 in compliance with respondent No. 2's direction conveyed through letter dated 5‑5‑1985 (Annexure H).

5. Subsequently, however, he was served with charge‑sheet dated 16‑6‑1985, which was accompanied by the following statement of allegations: "PAKISTAN TELEGRAPH AND TELEPHONE DEPARTMENT STATEMENT OF ALLEGATION Mr. Manzoor Hussain CS/TL Multan was deputed on foreign service to the Ministry of Post, Telegraph and Telephone, Kingdom of Saudi Arabia under terms and conditions laid down in the D.G., T & T Islamabad Memo No. T&D 25‑150/75, dated 8‑6‑1976 and relieved from this office on 12‑6‑1976. According to para 11 of D.G., T & T Islamabad memo No. T&D 25‑150/75, dated 8‑6‑1976, his deputation period was for one year and any extension beyond‑to this period was subject to the prior approval of the Government of Pakistan. No. extension was made into the period after 12‑6‑1977 i.e. after expiry of the period of his deputation. He was required to come back and resume duty in this office after 12‑6‑1977, under the Rules, he may be permitted to get on deputation for a period of three years extendable upto 5 years either on his request or his employer but he remained absent without information for a period of more than 7 years, thus he ceased to be Government employee under FR

18. Necessary Telegraphic notice even by post was issued at his available address but notices were received back undelivered. However, a notice was got published in Daily Nawa‑e‑Waqat, Multan on 5‑3‑1985, directing him to report for duty. (Sd.) Superintendent I/C, Telegraph Office, Multan. Phone: 76612"

6. In his explanation (Annexure K) it was pleaded that he was not guilty of misconduct violation of terms and conditions mentioned in para 2 of deputation order and wilful absence from duty for a period of more than seven Years. After submission of Inquiry Officer's findings on 29‑9‑1985, he was served with second show‑cause notice dated 6‑4‑1987, whereby he was called upon to adduce evidence in his defence. He was provided with the charge sheet, statement of allegations and a copy of the report of Inquiry Officer.

7. After he rendered an explanation on 19‑4‑1987, the following order was passed by the competent authority, on 21‑5‑1987. Office of the Director Telegraphs, Central Telecom: Region, Multan. No. Teles‑ML/SA/EQ‑40/24, Dated at Multan the 21‑5‑1987 FINAL ORDERS A categorical opportunity provided to Mr. Manzoor Hussain CS/TL(B‑7) to come up with all his substantiating support/evidences which authorise him to stay abroad after the expiry of granted deputation/Ex Pakistan leave. The show‑cause notice issued in this regard vide this Office No. TELES‑ML/EQ‑40/18, dated 6‑4‑1987 after a thorough inquisition as per Rules has also brought about the same results and the Official involved Mr. Manzoor Hussain neither produced any sound supporting proof of his wilful absence abroad for 7‑3/4 years nor he prayed for personal hearing. By the application of FR‑18 there remain nothing to probe into save to declare ceasing of Mr. Manzoor Hussain CS/TL DTO; Multan's service from T&T Department with effect from 12‑6‑1977. The monetary benefits inclusive of his pay he drew uptil now‑are to be recovered from him with retrospective effect. (Sd.) Director Telegraphs, Central Telegraph Region, Multan."

8. He challenged the validity of this order in a writ petition filed before the Lahore High Court which was withdrawn on 21‑3‑1988. The High Court's order said that the petition is disposed of as having been withdrawn on the statement of petitioner who wanted to avail of his remedy before the Labour Court.

9. Thereafter he served the respondents with grievance notices dated 10‑4‑1988 under section 25‑A of the industrial Relations Ordinance, 1969. In these notices the following prayer was made: "It is hereby requested that the illegal, wrongful, mala fide and incompetent orders of my dismissal dated 21‑5‑1987 may kindly be called off and my reinstatement in service with all the consequential benefits be ordered within the statutory period from the date of this notice failing which I shall be at liberty to seek a legal redress to the wrong at your risk as to costs and other consequences that may ensue."

10. He was informed of the fate of his notices by respondent No. 2 with the following letter dated 8‑5‑1988: No. Teles. ML/SA/E‑18/43, Dated at Multan the 8‑5‑1988 From Registered The Director Telegraphs, C.T.R. Multan. To, Mr. Manzoor Hussain, Ex‑Telegraphist, Resident of House No. 276, Tibbi Sher Khan, Multan. Reference: Your application dated 10‑4‑1988. This office is in receipt of your application dated 10‑4‑1988. You ceased to be an employee of the T & T Department w.e.f. 12‑6‑1977 vide this office orders dated 21‑5‑1987 in accordance with Rules and Regulations of the Department. The order was perfectly legal and justified. Your request in para. 9, cannot be acceded to. This office is not competent to treat this application as an appeal for the purpose of section 4 of the Service Tribunals Act. 1973. against your own order. Your action against the Department would be at your risk and costs. Your unfounded Writ Petition No. 891/1987 in the Hon'ble High Court Multan Bench, Multan caused heavy expenditure of the Government and its recovery would be effected from you after due assessment. (Sd.) Director Telegraphs C.T.R. Multan"

11. On 16‑7‑1988 he came to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 praying that order dated 21‑5‑1987 may he set aside and he be reinstated in service with all consequential benefits.

12. It appears from the impugned order of 21‑5‑1987 that proceeding against the appellant under the Government Servants (Efficiency & Discipline) Rules were not taken to their logical end. As noticed before, he was served with second show‑cause notice dated 6‑4‑1987 and his explanation dated 19‑4‑1987 was followed by the impugned order dated 21‑5‑1987. In first paragraph of this order it was recorded as a fact that the appellant had been able to produce any reliable evidence to explain his wilful absence abroad for a period of more than seven years. No penalty was however awarded wider the Government Servants (Efficiency & Discipline) Rules. Instead, as we see from second paragraph of the order, a reference was made to the provisions of Fundamental Rule 18 of the Fundamental Rules and it was declared that the appellant had ceased to remain in service of the Department with effect from 12‑6‑1977. What the competent authority seems from the provisions of the orders to have intended was that although disciplinary proceedings were conducted against the appellant, the application of Fundamental Rules left noting for further probe, except a declaration of the situation obtaining at that time; which was that he had ceased to remain in service of the department. Therefore,. what requires examination in this case is the second part of the impugned order where it ha,, been declared that the appellant was no longer in service under Fundamental Rule 18 of he Fundamental Rules.

13. The factual position is not in dispute. The appellant was to remain on deputation with the Government of Saudi Arabia for the period from 12‑6‑1976 to 11‑6‑1977 and he was due back for duty with effect from 12‑6 -1976 to 11-6-1977 and he was due back for duty with effect from 12-6-1977 instead of reporting for duty on that date he actually did so on 12-3-1985 and he was allowed to join on 7‑5‑1985. In this manner he remained absent f or a period of seven years and nine months, even if the date of reporting on 12‑3‑1985 be taken as the same as the date of joining.

14. Fundamental Rule 18 provides that "unless the governor‑General in view of the special circumstances of the case shall otherwise determine, after five years, continuous absence from duty, elsewhere than on foreign service in Pakistan whether with or without leave, a Government servant ceases to be in Government employ." It was contended by the appellant learned counsel that these provisions are not attracted to the present case because the appellant, being on deputation to Saudi Arabia in connection with the performance of duties assigned to him under an arrangement between the two Governments, can not be said to Have remained continuously absent for a period Of five years. Another argument was that these provisions were not applicable because his absence was neither with nor without leave.

15. We do not find it possible to agree with the learned counsel. To say nothing of what the respondents have said in defence, from the appellant's own pleadings it is clear that he has been absent from duty for a period of more than five years. As we have noticed from the term and by the conditions of deputation, he was to remain on deputation for a period of one year which expired on 11‑6‑1977. It was specifically laid down in the letter of sanction that no extension beyond this period shall be made without prior approval of the Government of Pakistan. and that any extension without such approval will be treated as irregularity on the part of the official concerned who, in consequence, will be liable to disciplinary action. There is absolutely nothing whatsoever on the record to give us even the slightest indication that either the appellant himself or the Saudi Arabian Government ever asked for extension in the period of deputation. Therefore, he became absent from duty with effect from 12‑6‑1977 within the meaning of Fundamental Rule 18 of the Fundamental Rules.

16. We may make a reference to his pleadings on this point to underline the infirmity of his case. In para 3 of the appeal he said "that on expiry of initial period of one year he was informed by the Saudi Arabian Authorities that his period of deputation on foreign service had been got extended for a further period of five years". There is no proof of the fact that he was informed by Saudi Arabian Authorities about anything much less about the extension of the period of deputation. Fact of the matter is that we do not find anything on record to show that any request for extension of the period was made by the Saudi Arabian Government or that it was granted by the Government of Pakistan. This being so, there was nothing in existence, about which he could be informed.

17. In para 4 of the appeal he has pleaded that "on expiry of the said extended period too, he was not allowed to quit nor was he summoned by his parent department to report back. On the contrary, he was given to understand by the Saudi Arabian. Authorities that the matter had been taken up with the Pakistan Government for further extension of the period of his deputation and consequently, his passport was extended by the Government of Pakistan for further period of five years". We feel like saying that these allegations do not deserve even an analysis. It will be enough to say that the pleadings are inherently unsound and they cannot sustain any comment. The period of deputation was never extended and there could be no question of further extension of any such period. There is no proof of the fact that he was given to understand anything by the Saudi Arabian Government. Nor is there anything to show that Government had taken up the matter of further extension with the Pakistan Government. In the background of these considerations, the pleading that he was not "allowed to quit, not was he summoned by his parent department" appears to be absolutely meaningless. 18‑ Then, in para 6 of the appeal he has said that "thus under an agreement between the Government of Pakistan and Saudi Arabia he continued to serve on deputation and had all along been performing his duties that had been so assigned to him". These pleadings are as infirm, meaningless and hollow as those which preceded this paragraph. The result is that it is established beyond doubt that on expiry of the period of deputation on 11‑6‑1977, he absolutely had no justification for staying in Saudi Arabia. He should have taken steps to come back to Pakistan to be able to report for duty as he eventually did on 12‑3‑1985 after having been informed of the publication of a notice in Daily Nawa‑e‑Waqt, Multan. He could easily have done so any time soon after 11‑6‑1977. We have every reason to believe that his job being lucrative he intentionally stayed in Saudi Arabia regardless of the consequences of his absence from duty in Pakistan. There is not a single document to show that he ever bothered to enquire about what was being done back in the department at home. It was, therefore, clearly a case of wilful absence from duty for a period of more than five years after 11‑6‑1977, a situation which attracted the provisions of Fundamental Rule 18 of the Rules.

19. It may be pointed out that the rule makes a mention of continuous absence from duty for a period of more than five years, even though it may be with leave. The emphasis is on continuous absence from duty. The manner in which this absence comes about is quite immaterial. In the present case, absence from duty was continuously for a period of more than five years. There is no substance in the contention that he remained on deputation even after the expiry of one year on 11‑6‑1977.

20. We have taken notice of the fact that the appellant was allowed to resume duty with effect from 7‑5‑1985 and that disciplinary proceedings were initiated against him with service of charge‑sheet dated 16‑6‑1985. The mere fact that the department allowed him to join did not stop them from initiating disciplinary proceedings. Therefore, the fact of these proceedings having been initiated is quite immaterial and of no consequence in so far as the appellant's case is concerned. It did not bind the department to any particular position.

21. Then, we have seen that the disciplinary proceedings were not taken to their end under the Rules and the department instead resorted to the provisions of Fundamental Rule 18 and declared that the appellant had ceased to remain in service with effect from 12‑6‑1977. The department appears to have realized that they were taking disciplinary proceedings against an official who was no longer in service. This being so, there appears to be nothing legally wrong with the impugned order in so far as this aspect of the matter is concerned. In actual fact the appellant ceased to remain in service by operation of the provisions of Fundamental Rule 18 with effect from a particular date at all the what the department appears to have done on 21‑5‑1987 was to declare a situation which was already prevailing on that date. In other words, the fact of appellant being no longer in service was not on account of the impugned order of 21‑5‑1987, but the provisions of Fundamental Rule 18.

22. Therefore, the department was perfectly within its authority to have recourse to Fundamental Rule 18 of the Fundamental Rules for a declaration that the appellant was no longer in service because of continuous unauthorised absence from duty for a period of more than five years, irrespective of the fact that disciplinary proceedings had also been held against him after he was allowed to join. However, this aspect of the matter apart, there is substance in the contention that the order is not legally tenable in so far, as the date of 12‑6‑1977 is concerned. The rule provides that a Government servant ceases to be in the Government employment after five years of continuous absence from duty. It leaves no doubt about the fact that the point of time whence automatic termination of service under this rule is to come about would happen only after five years' continuous absence from duty. The period of absence must be five years to attract the provisions of the rule. Therefore, the termination in the present case will be deemed to have taken place after expiry of five years. In this view of the matter, we hold that the appellant ceased to remain in service on 12‑6‑1982 rather than on 12‑6‑1977 as declared by the department in the impugned order, which is thus illegal to the extent of date of termination.

23. The last sentence of the impugned order regarding the monetary benefits also requires examination. It says that "the monetary benefits inclusive of his pay he drew uptil now is to be recovered from him with retrospective effect". There is no determination of the amount of monetary benefits drawn by the appellant. Nor is there any specification of the period for which they were drawn. Further, the expression namely "is to be recovered from him with retrospective effect" is also ambiguous and it is difficult to know the message conveyed by it. Therefore, we feel no hesitation in saying that this part of the order is clearly bad in law because of being vague and uncertain.

24. This was on merits, the appeal has been opposed by the respondents on two objections of legal character. The first is that it is incompetent for want of a departmental appeal under the Rules. The record shows that the appellant's writ petition was disposed of by the High Court on the statement of his counsel who stated at the Bar that he wanted to withdraw the petition to avail of his remedy before the Labour Court. After disposal of the writ petition on 21‑3‑1988, he served the respondents with grievance notices dated 10‑4‑1988 under section 25‑A of the Industrial Relations Ordinance, 1969. In para 9 of this notice he said that in case he is advised to approach the Federal Service Tribunal, it may be treated as an appeal for purpose of section 4 of Service Tribunals Act, 1973 and be dealt with accordingly. We are of the view that this grievance notice can be taken as sufficient compliance with the requirement of section 4(1)(a) of the Act, particularly because of the aforementioned averments. We are inclined to hold that the appeal is not incompetent for want of departmental appeal.

25. In so far as the respondents' objection regarding limitation is concerned, the relevant facts are not in dispute. After the appellant's writ petition was disposed of by the High Court on 21‑3‑1988 as having been withdrawn, he addressed a grievance notice dated 10‑4‑1988 under section 25‑A of the Industrial Relations Ordinance, 1969 to all the three respondents. He was informed by letter dated 8‑5‑1988 by respondent No. 3 that his grievance petition had not found favour with them and that the impugned order .of 21‑5‑1987 was in accordance with the rules and regulations of the department. Ordinarily, the appellant should have come to the Tribunal with an appeal under section 4 of the Act within 30 days of the communication of this letter. However, the present appeal was filed on 16‑7‑1988. The excuse mentioned by the appellant is that since the grievance notice had not been answered by all the respondents, he filed the appeal on the expiry of 90 days after the notice of 10‑4‑1988. Although it does not appear to be sound, we are of the view under the circumstances, delay in filing the appeal should be condoned; which is accordingly done particularly in view of the fact that the impugned order is ex facie void in so far it relates to the date of automatic termination of service, which as already mentioned before should have been 12‑6‑1982.

26. For these reasons, the appeal is accepted impart and the impugned order is set aside in so far it relates to recovery of monetary benefits. The remaining part of the order is modified to the extent that date from which the appellant ceased to remain in service shall be read as 12‑6‑1982 instead of 12‑6‑1977. There will be no order as to costs. A.A./738/Sr.F Appeal partly accepted.