MUHAMMAD RIAZ EX-CONSTABLE NO.366, TEHSIL SAHIWAL, DISTRICT

' The appellant is ex-police constable who was proceeded against on the allegation that he remained absent from duty for 10 days as per record. Through impugned order dated 25-10-2002, appellant was dismissed from service "with immediate effect". The appellant filed departmental appeal but the same was not entertained and returned to the appellant for removal of some deficiencies. The representation was received back by the Appellate Authority again, but this time it was treated as time-barred and accordingly dismissed. The appellant had earlier filed a Service Appeal No.1353 of 2004. This appeal was considered by this Tribunal and was disposed of through order dated 11-8-2004 with the direction to concerned D.I.G. To first decide the departmental appeal on merits because departmental appeal as per record produced by the concerned departmental, representative had been filed in time. The departmental appeal was, therefore, taken up by the concerned authority again and rejected through final/impugned order dated 14- 10-2004 hence, the present service appeal in this Tribunal .

2. Learned counsel for the appellant maintains that in the first place the allegation of wilful absence from duty levelled against the appellant was baseless because the appellant was sick and he had submitted medical certificate for that period but those certificates were misplaced in the office of Line Officer and thereafter the appellant was dismissed arbitrarily. It is next maintained that the Authority while passing the impugned orders also regularized the period of absence of the appellant by granting him leave without pay and that when period of absence stood regularized, the appellant could not be dismissed from service by considering him absent from duty. In that connection, learned counsel has placed reliance on the law settled in Service Appeals Nos.2654 of 2000 and 1298 of 2000 by this Tribunal and also on 1996 PLC (C.S.) 1161. It is further stated that ex parte decision was taken in a mechanical manner without affording the appellant chance of personal hearing and in this way gross miscarriage of justice was committed by the respondents.

3. Appeal is opposed by the respondents mainly on the ground that wilful absence of the appellant for 10 days was a matter of record and that the appellant, failed to furnish any explanation for that absence and, therefore, he was dismissed from service. It is next maintained that appellant was not setting a good example for others to follow and that action was taken against the appellant in accordance with law as he had not intimated about his illness and that the medical certificates had been provided by him as an afterthought.

4. I have considered contentions from both sides and also perused the relevant record. I find that the Authority while passing the impugned order regarding dismissal of the appellant also regularized the period of absence of treating that period as leave without pay. As held by this Tribunal in number of cases, when absence is treated as leave on full pay or without pay, then the accused civil servant could not be treated as absent and at least he could not be dismissed from service on that ground if a civil servant was treated absent, then he could not be treated on leave, and if he was to be treated on leave, then he could not be treated as absent. Moreover, the period of alleged absence was not long. The appellant states that he had submitted medical certificates for this period but those certificates were misplaced. Although the respondents have not accepted this version of the appellant, the fact remains that the appellant had some reasons for going away from duty. The appellant was also not given personal hearing while passing the impugned orders.

The Authority while dismissing the appellant by way of ex parte proceedings recorded as follows:-- "He does not deserve personal hearing".

' Being heard is the right of every accused person. The Authority, therefore, could not declare that the appellant did not deserve grant of personal hearihg. Moreover, the period of absence was also regularized by the same Authority as leave without pay.

5. For the reasons given above, the appeal is accepted and the impugned orders are set aside.

Resultantly, the appellant shall stand reinstated and the period intervening shall be treated as leave of the kind due.