KAFYAT ULLAH KHAN vs INSPECTOR-GENERAL OF POLICE, ISLAMABAD and another
This matter concerns a petition for leave to appeal against a judgment of the Federal Service Tribunal, which had modified the petitioner's penalty of dismissal from service to removal from service. The petitioner, a civil servant, had been dismissed from service, and his period of unauthorized absence was simultaneously treated as leave without pay. The core legal question presented to the Supreme Court is whether the imposition of a major penalty of dismissal from service, combined with the treatment of the period of absence as leave without pay, constitutes an impermissible double penalty. The petitioner relied on precedent suggesting such orders are unsustainable, while the respondent cited conflicting case law supporting the maintenance of dismissal penalties despite the treatment of absence as leave without pay. Recognizing a conflict in the existing jurisprudence of the Supreme Court regarding whether treating an absence period as leave without pay alongside a dismissal order amounts to a double penalty, the Court granted leave to appeal to resolve this legal inconsistency. The appeal is to be heard on the existing record.
- Does the imposition of a major penalty of dismissal from service, coupled with treating the period of absence as leave without pay, constitute an impermissible double penalty?
- Is a dismissal order sustainable when the period of absence leading to the dismissal is simultaneously treated as leave without pay?
ORDER
GULZAR AHMED, J. By the order dated 21.11.2014 the petitioner was awarded major penalty of dismissal from service with immediate effect and the period of absence i.e. 9 months and 13 days was treated as leave without pay. The petitioner challenged this order before the Federal Service Tribunal, Islamabad (the Tribunal). The Tribunal vide impugned judgment dated 26.05.2017 converted the penalty of dismissal from service to that of removal from service. Learned counsel for the petitioner contends that where the order of imposing penalty of dismissal from service to the petitioner was made, the further order by which absence period of 9 months and 13 days was treated as leave without pay would amount to double penalty upon the petitioner and in this regard has relied upon the case of Lahore Development Authority and others vs. Muhammad Nadeem Kachloo and another (2006 PLC (C.S.) 294), wherein this Court has held that when the penalty has been imposed with a further making of absence period as leave without pay the same order will not sustain and the dismissal order will be set aside in that the leave without pay will be counted as a penalty .
2. Learned Additional A.G. has relied upon the case of Imtiaz Ahmed Lali v. Returning Officer and 3 others (PLD 2008 Supreme Court 355) and also the case of Water and Power Development Authority and others v.
Shan Elahi (1998 SCMR 1890 ) to contend that in a similar situation this Court has held that the penalty of dismissal from service could be maintained even though the absence has been treated as leave without pay .
3. As there appears to be some conflict in the judgments of this Court on the point in issue, thus it is appropriate that leave to appeal be granted in the case to thresh out the issue and decide the same.
4. Leave to appeal is, therefore, granted to consider inter alia the above question. The appeal shall be heard on the available record but the parties are allowed to file additional documents within a period of one month. As the matter relates to service, of fice is directed to fix the same expeditiously preferably immediately after three months.