2010 SCMR 1386 (PLP)

CH. IJ.AZ AHMED, J.

Necessary facts as depicted in para 1 of the impugned judgment are reproduced herein below: "Appellant Anwar-ul-Haq was a Manager in the Heavy Mechanical Complex (Pvt.) Ltd. (HMC). He was granted leave and thereafter extension in it. His extended leave had expired on 8-8-2004 and he was due to report for duty on 9-8-2004 but instead of doing so he tendered his resignation on that day. On the charge of remaining absent from duty from 9-8-2004 he was served with a show cause notice under the Removal from Service (Special Powers) Ordinance, 2000. Mr. Irfan Ali Khan was appointed as Inquiry Officer. However, he could not start the inquiry proceedings due to his illness. He was, therefore, substituted by Mr. Amjad Pervaiz DGM. In the inquiry held by him the charges levelled against the appellant were proved. However, a recommendation was made that a lenient view be taken against him in the light of cases of Messer Asghar Malik and Tariq Shah, Project Managers. On 28-9-2006 the appellant was awarded penalty of dismissal from service. He filed a departmental appeal on 13-10-2006 and thereafter appeal in this Tribunal praying for setting aside of the impugned order. The petitioner being aggrieved filed Appeal No.9(R)CS/2007 before the Federal Service Tribunal, Islamabad. His appeal was dismissed vide impugned dated 29-1-2010. Hence the present petition.

2. The learned counsel of the petitioner submits as under:-- (i) The resignation submitted by the petitioner before the competent authority of the respondents who did not pass any order, for such long time, therefore, his resignation could not be lawfully refused. The action of the respondents and impugned judgment are in violation of the law laid down by this Court in the case of Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890. (ii) Impugned order of his dismissal from service dated 28-9-2006 is liable to be set aside as it was passed by incompetent authority. (iii) The competent authority has passed impugned order by disregarding the recommendations of the inquiry officer and enhance penalty without recording plausible reasons. (iv) The action of the respondents is in violation of Article 25 of the Constitution. This error was not rectified by the learned Service Tribunal.

3. We have given our anxious consideration to the contention of the learned counsel of the petitioner and perused the record. The learned counsel of the petitioner has raised same pleas before us which were raised by him before the learned Service Tribunal. The learned Service Tribunal has considered all the pleas and rejected vide impugned judgment. The relevant paras 4 to 6 are reproduced hereunder: (4) Tender of resignation does not allow a civil servant to remain absent from duty. The appellant had tendered resignation on 9-8-2004 but this did not mean that he was justified in remaining absent from duty and not joining it in spite of notices issued to him. We are of the considered view that the appellant had committed a misconduct by remaining absent from duty since his resignation had not been accepted. He was under a legal obligation to join duty till acceptance of his resignation. (5) It is argued by the learned counsel for the appellant that the competent authority should have taken a lenient view against the appellant since a recommendation to that effect had been made by the Inquiry Committee. Normally, the recommendation of an Inquiry Committee is given respect by the competent authority but the law permits the competent authority to refuse it. In the present case the competent authority had recorded reasons to the effect that the cases of Asghar Malik and Tariq Shah could not be cited for taking a lenient view against the appellant. It was observed by the competent authority that Asghar Malik and Tariq Shah had separated themselves form the service under the Voluntary Separation Scheme (VSS). The appellant was accused of remaining absent from duty. He thus could not equate himself with Asghar Malik and Tariq Shah who had exercised their option under the VSS. The competent authority committed no legal mistake in rejecting the recommendations made by the Inquiry Committee for taking lenient view against the appellant in the circumstances. (6) The appellant had submitted his resignation on 9-8-2004 but the impugned order was passed against him after more than two years. It is not explained by the respondents as to why the matter had lingered on for such a long time. A prompt action should have been taken against the appellant for his absence from duty. A delayed action had justified a lesser penalty. We, therefore, accept the appeal to this extent that the penalty of dismissal from service imposed upon the appellant is converted into his removal from service with effect from 9-8-2004 i.e. the date from which he had absented from duty.

4. To resolve the controversy in question it is better and appropriate to reproduce the meaning of the word resignation which is as follows: Corpus Juris Secundum, Volume LXXVII at page 77:-- "Resignation.

It has been said that "resignation" is a term of legal art, having legal connotations which describe certain legal results. It is characteristically the voluntary surrender of a position by the one resigning, made freely and not under duress, and the word is defined generally." Black's Law Dictionary: "Resignation means formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment." ESTACODE: "Resignation from Government Service and desertion from duty. Relevant instructions appear at serial No.9 para 2 at page 448 ESTACODE (2000 Edition) which may be reproduced as under: "Resignation of permanent government servants.- A question has been raised whether the undertaking given by a temporary Government servant at the time of his entering service, that he shall give one month's of his intention to resign_ or in default forfeit to Government a sum not exceeding one month's pay, remains binding on that employee or lapses from the time he is confirmed. It is stated that the undertaking of the kind mentioned above lapses when the persons concerned become permanent, as notice is not provided for in the case of permanent Government servants. (2) The position regarding permanent Government servants is different. `Permanent service' is the result of a bilateral contract for the termination of which the consent of both the employer and employees is necessary. If a permanent Government servant tenders his resignation, he continues to be in service until the resignation is accepted, for the reason that, for the cancellation of the contract of service, the consent of the other party is also necessary. Till his resignation is accepted, the employee continues to be in the employment of the employer and if he absents himself from duty, he incurs a penalty prescribed for such default which may be dismissal in certain cases. A permanent government servant, therefore, continues to remain in service till his resignation is accepted. Mere reading the above instruction it is crystal clear that on mere tendering/submitting of resignation the services of Government/ Civil Servant would not come to an end and the same has to be accepted for its effectiveness by the competent authority. It also reveals that till such time as the resignation is accepted by the competent authority, the Civil/Government servant would continue to be in Government service and would be under an obligation to perform his duties. In case he fails or omits to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under the appropriate law and rules. Such instructions would have same force as statutory rules as law laid down by this Court in various pronouncements. See Province of West Pakistan and another v. Ch. Din Muhammad and others PLD 1964 SC 21 and Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests and others PLD 1988 SC 155.

5. Great emphasis was laid by Mr. Haider Hussain, ASC, on the judgment of this Court in the case of Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890 to substantiate his contention that the resignation of the petitioner would be deemed to have been accepted immediately on its tender which would have removed the above disability of the petitioner. From a mere perusal of the judgment it may be noted that this Court made an observation that the authority competent to accept resignation was under obligation to process the same within the stipulated period. It was not pronounced that on failure to do so it would become effective or operative without an order of acceptance. The case-law relied upon by Mr. Haider Hussain, ASC, is of no assistance to him. The aforesaid proposition of law is also supported by the following judgments:-- (1) Moti Ram v. Param Dev and another 1993 SCMR 2137. (2) Union of India v. Gopal Chandra AIR 1978 694 at 699. (3) Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC

52. We have carefully examined the record available before us. With the assistance of the learned counsel of the petitioner we have come to the conclusion that learned Service Tribunal has justified to render finding of fact against the petitioner after perusal of the record. The conclusion arrived at by the learned Service Tribunal is also in consonance with the law laid down by this Court in various pronouncements mentioned herein above. The question of discrimination was also examined by the Service Tribunal as evident from the finding rendered by the Service Tribunal against the petitioner in the impugned judgment relevant portion has been reproduced herein above. This aspect of the case has also been re-examined by us and we have come to the conclusion that finding of fact recorded by the learned Service Tribunal is also rendered by the Service Tribunal after appraisal of record on the well known principles of appreciation which is based on correct reasoning. The learned Service Tribunal had come to the conclusion that the case of the petitioner is not exactly similar to the case of his colleagues Messrs Asghar Malik and Tariq Shah as evident from para 5 of the impugned judgment. The same is also in consonance with the law laid down by this Court in various pronouncements. See I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. (The relevant observation is at page 1086 in para 26). It is pertinent to mention here that action of the respondents against the petitioner was upheld by the learned Service Tribunal through the impugned judgment. This Court cannot interfere while exercising power under Article 212(3) of the Constitution as law laid down by this Court in various pronouncements. See Ch. Muhammad Azim v. The Chief Engineer, Irrigation and others 1991 SCMR

255. The learned counsel of the petitioner has failed to raise any question of public importance as contemplated in Article 212(3) of the Constitution which is condition precedent to entertain the petition filed under Article 212(3) of the Constitution. It is settled law that when the condition precedent is missing then the petition is liable to be dismissed as law laid down by this Court in Mansab Ali v. Amir and 3 others PLD 1971 SC 124.

6. In view of what has been discussed above this petition has no force and the same is dismissed. Leave is refused. M.H./A-91/SC Petition dismissed.