WATER AND POWER DEVELOPMENT AUTIIORITY and another vs ABDUL RASHID

ORDER

1. ' S.USMAN ALI SHAH, J.---These are two petitions for leave to appeal one filed by WAPDA and the other by Abdul Rashid Dar, petitioners against the order of the Federal Service Tribunal, Islamabad, dated 13-2-1989, whereby appeal of Abdul Rashid Dar for reinstatement in service without back benefits was accepted.

2. ' Briefly, the facts are that Abdul Rashid Dar respondent No,1 in CPLA No,261-R of 1989 and petitioner in CPLA No,262-R of 1989, an Assistant Draftsman in WAPDA was sent on deputation to Saudi Arabia vide Office Order No,64/MDP/C.E.A./Admn.II/54/88, dated 22-4-1975, for two years term. After expiry of his deputation period, he was granted an extension for one more year i,e. From 1-7-1977 to 30-6- 1978. He failed to return on due date but returned and reported for duty in his parent department on 14-4-1986. The department before permitting him to resume his duties, asked him to deposit in foreign currency, the foreign service contributions, leave salary, G.P. Fund, W.W. Fund and G.L.I. Rom 1-7-1975 to 13-4-1986. He made the requisite deposits on 1-12-1986 but even then he was not allowed to resume his duty. His application to Wafaqi Muhtasib was not succeeded and thereafter his departmental appeal before the Member (Board) WAPDA, Lahore was not replied satisfactorily.

3. Subsequently, he preferred an appeal before the Federal Service Tribunal, which was accepted vide mpugned judgment dated 13-2-1989 in the following terms:- "For the reasons recorded above, the appeal is allowed and it is directed that the appellant shall be taken on duty by the respondent authority. Since the appellant was himself responsible for causing the situation of not being taken on duty by overstaying in foreign service without the permission of his employer for more than four years, he shall not be entitled to any back benefits."

4. ' Both the parties now seek leave to appeal through their respective petitions against the above- said judgment of the High Court.

5. We have heard the learned counsel for the parties in support of their petitions and have gone through the impugned finding and record of the case. We have observed that the deposit of the requisite contribution on account of foreign service upto 13-4-1986 was made by Abdul Rashid Dar in foreign exchange vide United Bank Ltd. Abpara Branch Islamabad bank draft No,069040/475/86, dated 1-2-1986 alongwith other dues to the WAPDA, the details of which are given in pages 54, 55 and 56 of petition No,262-R of 1989. Thus his overstaying in the foreign service stands condoned.

6. The learned counsel for WAPDA pressed into service, the provisions of fundamental rule 18 which according to pages 64, 65 and 66 of the said petition shows that the policy letter of fundamental rule 18 has lost its value according to Office Memo. No,AD(E-IA) 07036/96443-97242 dated 31-10- 1984 in` the following words:- `"An employee will be allowed to continue against his assignment abroad even after the expiry of 5 years on his request or of his employer. However, in all such cases, the employee's name will be removed from the existing seniority list and placed on a separate static list with no claim to promotion or seniority over the juniors who may be promoted during this period."

7. ' So far as the point of limitation is concerned, the delay was condoned by the Service Tribunal and it is a well-settled principle of law as laid down in 1980 SC NI R 722 and 1981 SCMR 239 that once a discretion condoning the delay is exercised, it can neither be interfered nor disturbed by the Supreme Court.

8. ' Under the above facts and circumstances of the case we do not find any merit in these petitions and are accordingly dismissed.