ZARGHUN SHAH vs SURGEON-GENERAL and another

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Zarghun Shah, petitioner, while employed as Civil Labour Class-IV in C.M.H., Peshawar, alongwith three others, was charged for murders of Ajmal Khan and Hasham Khan and effective attempt at the life of another vide F.I.R. No.192 registered on 3-5-1990 at Police Station, Pishtakhara, District Peshawar. In consequence, he became fugitive from law. On 5- 5-1990 he sent an application for leave for a period of one month. He was, however, suspended from service with effect from 5-5-1990 on account of his involvement on the charge of twin murders as well as effective attempted murder. It appears that the petitioner was arrested on 19- 4-1993 and was lodged in Central Prison, Peshawar. He was granted bail on 6-6-1993. The petitioner and his two other co-accused were placed on trial but they were acquitted on 5-12-1993 due to compromise between the parties. Thereafter he approached the authorities concerned for his reinstatement. On 5-4-1994, he was informed by Surgeon-General (respondent No.1) that he had been discharged from service with effect from 5-5-1990 and that another person had been employed with effect from 1-6-1990. In this context, it was also observed that on perusal of the certificates provided by him, it transpired that he had been able to explain his absence for the period from 17-4-1993 to 6-6-1993 whereas he had remained absent for two years, 11 months and 11 days. His prayer for reinstatement was therefore, not granted.

2. Feeling aggrieved, the petitioner filed an appeal under section 4 of the Service Tribunals Act, 1973 before the Federal Service Tribunal.

3. The Service Tribunal reached the conclusion that the petitioner had remained absent from duty with effect from 5-5-1990 but despite notices he did not bother either to submit any application for leave or tender any explanation therefor. It was further observed that conceding for the sake of argument that he had applied for one month's leave on his arrest "even then he has no case because he was arrested on 17-4-1993 and was released on bail on 6-6-1993". It was also noted that after committing the murders, the petitioner remained absent from 5-5-1990, therefore, the respondents were justified to discharge him from service. The contention that no inquiry was conducted against him was repelled by holding that "inquiry is not necessary where the charge stands proved on the face of the record". As a result his appeal was dismissed by the Tribunal. The petitioner, feeling aggrieved, seeks leave to appeal.

4. Qazi Muhammad Anwar, learned counsel for the petitioner, has reiterated his contention that the petitioner had been denied the right of hearing before he was discharged from service and, therefore, the impugned order was coram non judice.

5. This contention is not tenable. The learned counsel for the petitioner A has not been able to explain the long absence of the petitioner for about three years. Thus the charge is proved on the face of the record. The petitioner has also not been able to show cause even to us for his long absence from duty. Therefore, even the holding of inquiry would not have made any difference. It may, however, be noted that in the present case the petitioner has just been discharged from service. No stigma of any sort whatsoever has been attached. He has neither been dismissed nor removed from service. The principle of 'audi alteram partem' would not be attracted to 'the facts of this case'.

6. We find no merit in this petition which is, accordingly, dismissed and leave to appeal is not granted.