Supreme Court of Pakistani and Tassadduq Hussain Jillani, J LAHORE

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C. J .--- Petitioner seeks leave to appeal against the judgment, dated 30th December, 2003 passed by Punjab Service Tribunal, Lahore.

2. Precisely stating facts of the case are that respondent was proceeded departmentally on account of absence for 260 days from his duty. Director, Administration L.D.A., Lahore awarded him major penalty of dismissal from service vide order, dated 27th May, 2002. Contents of the order are reproduced hereinbelow:-- "Consequent upon finalization of disciplinary proceedings initiated against Mr. Muhammad Nadeem Kichloo, Assistant Director (Accounts) L.D.A., through show-cause notice under the Punjab Removal From Service (Special Powers) Ordinance, 2000 read with Punjab Removal From Service (Special Powers) (Amendment) Ordinance, 2001, the authority i,e, Director-General, L.D.A. Has awarded major penalty of dismissal from service upon the said officer with immediate effect, under the said Ordinance. His absence period from duty is ordered to be treated as leave without pay."

' A perusal of the above order indicates that same was passed by Director-General/Authority on 23rd May, 2002 but was conveyed to the respondent on 27th May, 2002. There is another aspect of the case which requires notice that L.D.A., while awarding major penalty of dismissal from service, treated absence of the respondent as leave without pay.

3. Appeal filed by the respondent before the Secretary failed, who dismissed the same on 31st March, 2003.Against the above order, respondent preferred appeal before the Service Tribunal which has been allowed vide impugned judgment. Concluding para. Is reproduced hereinbelow:-- "I have considered contentions from both sides. Without touching detailed merits of the case, I find that the appellant has already been allowed leave (leave without pay) for the period he remained allegedly absent from duty. The authority while dismissing the appellant, also allowed the appellant extraordinary leave without pay for the said period and in this way regularized his absence. This being so, very ground had vanished on which the appellant had been proceeded against. When the appellant was considered on leave, then he could not have been considered absent. In this view of the matter, appeal is accepted and the impugned orders, presently being assailed by the appellant are set aside. Resultantly, the appellant shall stand reinstated and the period intervening shall be treated as leave of the kind due."

4. Learned counsel for the petitioner contended that respondent remained absent from his duty therefore, the Director-General, L.D.A./ Authority rightly dismissed him from service.

5. In view of the observations made by the Tribunal in the concluded para., noted hereinabove, and also having gone through the contents of the order of the. L.D.A. Dated 27th May, 2002 we called upon learned counsel to explain as to whether, after allowing the respondent leave without pay during the period when he was absent from duty, there was any justification to dismiss him from service, he could not answer satisfactorily except saying that the period of absence was treated as leave without pay in order to grant him service benefits. We are surprised that once a person has been ordered to be dismissed from service, could at all the benefits of salary etc. Can be given to him? As it has been pointed out hereinabove that Director-General himself had condoned the period of absence by allowing him leave without pay. Learned counsel also admitted that leave was due to the respondent and he had been making applications time and again accompanied by medical certificates for the purpose of extending the period of his leave. In this view of the matter, we are of the opinion that Director-General, L.D.A. Had no justification to institute this petition because of the fact that absence of the respondent had been regularized.

6. Thus, for the foregoing reasons, petition is dismissed. However, notice be issued to both the petitioners to explain as to why costs may not be imposed upon them for filing frivolous petition, knowing well that the competent authority vide order, dated 23-5-2005 had treated the period during which respondent remained absent as leave without pay. Learned counsel for the petitioners shall submit details of the petitions with particulars and thereafter notice be issued to them for their appearance during week commencing 30th June, 2006.