M. SHAFI KHALIQUE vs GOVERNMENT OF PAKISTAN AND ANOTHER

ORDER

' M. S. H. QURAISHI, J.-The petitioner, an accountant in the Pakistan Embassy at The Hague, who had remained posted there for 7i years, was issued a notice for readiness to move over to Pakistan in the beginning of the financial year 1980-81. He applied for deferment of his return by three years for the personal reason of enabling his only daughter to complete her pre-University education. His request not being granted, he applied for six months' leave to enable him to make arrangements for his daughter's stay at The Hague before returning to Pakistan. This was also not accepted and he was allowed leave only for 30 days. His further efforts to seek leave on the additional ground of his wife's ailment also failed and he was relieved of his duties on 2-2-1981 and was informed that if he failed to report for duties at the headquarters by 15-3-1981 he would be liable to disciplinary action. Nevertheless, as he still persisted in his efforts to get his leave extended upto 31-6-1981, he was served with a notice to show cause on 16-4-1981 and in due course was dismissed from service by order, dated 27-7-1981. Lie took the matter in appeal before the Federal Service Tribunal who held that the petitioner did infringe the rules of discipline by not returning to Pakistan from leave when asked to do so but that the circumstances of the case justified a lenient view. The Tribunal, therefore, by the impugned order, dated 5-10-1983, substituted the punishment by censure and stoppage of increments for three years and ordered his re-instatement into service with effect from the date. Of his dismissal subject to the condition that he should not be paid any arrears for the intervening period.

2. The main grievance of the petitioner is against denial of his arrears of pay for the intervening period. According to his counsel, the Tribunal, when reinstating him into service, could not legally deny him the arrears for the intervening period. Unfortunately, however, the rules do not support this proposition. Following from the judgment of this Court in Pakistan v. Mrs. A. V. Issacs (1), in which it was held that if dismissal of a Government servant is held to be unlawful he should be allowed salary for the period he was kept out of service, instructions were issued under the Finance Division Regulation Wing 0. M. No, 781-R 4/73-F-30-R. 1/73, dated 10-7-1973 in this regard with the rider that the instructions "do not apply to cases in which Government servants are reinstated as a result of acceptance of appeals by departmental appellate authorities, which will continue to be regulated by the provisions of F. R.-54, as hitherto". Under F. R.-54, the authority while reinstating a dismissed Government servant whose dismissal has not been held wholly unjustifiable has discretion to grant him for the period of his absence from duty such proportion of his pay and allowances as it may prescribe. As the Tribunal came to the view, and there is no reason to disagree with the same, that the dismissal of the petitioner was not illegal, he was not entitled, as a matter of right, to claim the arrears of pay for the intervening period. We, therefore, find no merit in this petition which is accordingly dismissed. {{FOOT NOTE}}

(1) PLD 1970 SC 415 {{FOOT NOTE}}