Muhammad Sharif Abbasi vs Member Water, WAPDA, Lahore and others
This matter concerns an appeal against the judgment of a Service Tribunal which had dismissed the appellant's departmental appeal on the grounds of limitation. The core legal question was whether the departmental appeal was filed within the prescribed period of limitation and whether the subsequent imposition of a major penalty of compulsory retirement was justified given the regularization of the appellant's leave. The Supreme Court found that the appellant had provided a postal receipt dated 19.8.2001, which, when read with correspondence between the parties, established that the appeal was filed within time, contrary to the Tribunal's finding. On merits, the Court observed that the Department had regularized the appellant's leave for the period of his alleged absence, rendering the charge-sheet and the subsequent penalty of compulsory retirement inconsistent with the record. The Court held that once leave is regularized, there is no basis to penalize an employee for the same period. Consequently, the appeal was allowed, the appellant was reinstated in service, and the matter was remanded to the Department to determine the issue of back-benefits after a proper inquiry.
- Whether a departmental appeal is considered filed on the date of dispatch as evidenced by a postal receipt?
- Can an employee be penalized for unauthorized absence if the department has subsequently regularized the leave for that same period?
- Does the regularization of leave negate the grounds for a major penalty based on absence from duty?
ORDER
' AMIR HAM MUSLIM, J. --- Leave was granted by this Court, vide order dated 6.6.2012, inter alia on the ground as to whether the conclusion recorded by the Tribunal, that the departmental appeal preferred by the appellant was beyond the prescribed period of limitation, was based on proper appreciation of relevant record.
2. In this respect the learned counsel for the appellant has contended that the appellant filed the departmental appeal on 19.8.2001 and consequent thereto; he, through his counsel, also sent a notice to the department on 29.10.2001. The department did respond to the notice by its letter dated 3.12.2001 denying to have received the Memo. of appeal. According to the learned counsel for the appellant, the appellant, thereafter, sent a letter to the department enclosing a copy of the memo of appeal dated 19.8.2001. He submits that the appeal was filed on 19.8 2001, which fact is also reflected from para 3 of the appellant's letter dated 10.12 2001. He further submits that this aspect of the has not been taken note of by the Tribunal while passing the impugned judgment on the issue that the appeal before the department was barred by time.
3. As against this, the learned counsel for the Department has contended that departmental appeal was filed by the appellant on 20.12.2001, and not on 19.8.2001, as per the record.
4. We have heard the learned counsel for the parties and have perused the record. We have noticed that the counsel for the appellant has produced a postal receipt before us which is also dated 19.8.2001. The costal receipt, coupled with letter of the appellant and the reply thereto, prima facie, reflects that the departmental appeal was filed on 19.8.2001. We, therefore, hold that the departmental appeal was filed within the time.
5. On merits, the Department has regularized the leave of the appellant from 16.4.2001 to 11.7.2001 by its letter dated 25.7.2001. In the intervening period, the Department has also issued a charge-sheet dated 23,5 2001 by which the appellant was charged as under:-- "It has been reported by the S.E. City Circle Rawalpindi that you are absent from duty w,e,f, 22.4.2001 without prior sanction of leave According to the Authority's instructions before availing of any kind of leave prior sanction of leave is mandatory. but you did not do so and absented yourself at your own will.
6.It is also an admitted position that the appellant was under medical treatment with WAPDA hospital Under these circumstances, on the one hand the Department ha, issued the aforesaid charge-sheet to the appellant on V-P ground of his absence from 22,4.2001 on wards anti, or the other hand, it has also regularized his leave. Once the lone has been regularized, there was nothing against the appellant on record to penalize him and order impose penalty of any nature impugned through these proceedings. The reasoning of the department and/or the Tribunal while affirming the findings of the departmental appeal are not in conformity with the record. The order of the department imposing major penalty was passed in haste, overlooking the material on record. The appellant was granted personal hearing on 11 7.2001 and on the same day major penalty of compulsory retirement was ordered.
7, We, for the aforesaid reasons, allow this appeal and order reinstatement of the appellant in service but remand the matter to the Department for considering the issue of back-benefit on merits after proper enquiry providing opportunity of hearing to the appellant.