IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Present:

Irshad Ali Shah, J.

Agha Faisal,J.

 

CP D1171 of 2009               :           Bilal Rasool Bughio vs.Airport Manager,

                                                            Moen Jo Daro Airport & Others

 

For the Petitioner                 :           Mr. Ghulam Dastagir A. Shahani, Advocate

 

For the Respondents          :           Mr. Muhammad Imran Abbasi

                                                            Assistant Attorney General

 

                                                            Mr. Inayatullah Morio, Advocate

                                                                                                           

Dates of hearing                  :           19.01.2022

 

Date of announcement      :           19.01.2022

 

ORDER

 

Agha Faisal, J.         The petitioner was awarded compulsory retirement on account of being continuously absent from service without justification. No appeal against such compulsory retirement is manifest, however, the petitioner requested that his unjustified absence, prior to compulsory retirement, may be treated as leave and permitted to be encashed on humanitarian grounds, and the said request was rejected. The petition seeks the same relief and in the alternative seeks reinstatement, however, once again on humanitarian grounds.

 

2.            Petitioner's counsel argued that the petitioner was entitled to the relief claimed in view of the then prevailing peculiar domestic circumstances of the petitioner. Respondents' counsel submitted that the petition was entirely misconceived and ought to be dismissed.

 

3.            It is imperative to observe at the very onset that the order of compulsory retirement has never been appealed by the petitioner and that his primary grievance remains that his unjustified absence, prior to award of penalty, was not regularized by the respondents for consideration of leave encashment.

 

4.            Petitioner's counsel failed to assist us with any law that provided for treating unjustified absence, leading to compulsory retirement, as sanctioned leave. Even otherwise it belies reason that if the absence itself was treated as regular then what would be the basis for awarding compulsory retirement. The unjustified absence stands duly demonstrated from the record and no cavil in respect thereof was articulated by the petitioner's counsel before us. The application for encashment of the unjustified absence, albeit solely on humanitarian grounds, was denied by the respondent and the petitioner's counsel has failed to identify any infirmity in the decision rendered.

 

5.            The record demonstrates that the allegation against the petitioner was subjected to the anvil of a proper inquiry and repeated opportunities were provided to the petitioner to dispel the charge/s there against. In addition to the written submissions of the petitioner an opportunity of personal hearing was also availed. Per the admitted documentation filed, the preponderance of the incriminating record against the petitioner could not be controverted, hence, the decision. While eschewing a voluminous repetition[1] of the incriminating record, it would suffice to observe that the petitioner's counsel been unable to demonstrate that the decision taken could not have been predicated upon the record under consideration.

 

6.            In summation it is observed that the principles of audi alteram partem appear to have been observed in the proceedings under scrutiny; no cavil has been articulated by the petitioner's counsel in so far as the procedural aspect of the proceedings is concerned; the decision appears to have been taken rested upon the preponderance of record, upon concluding that the same was commensurate punishment considering the gravity of the offence concerned. It is in this context that it is observed that the learned counsel has been unable to demonstrate any infirmity with respect to the proceedings.

 

7.            It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

 

8.            Article 199 of the Constitution contemplates the discretionary[3] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed / exhausted and no case has been set forth before us for de novo agitation of the matter.

 

9.            In view hereof, we are constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, this petition is hereby dismissed.

 

 

 

                                                                   JUDGE

 

JUDGE

                  

 


[1]Per Mansoor Ali Shah J. in the yet unreported judgment dated 18.08.2020 in Farooq Hussain vs. Shaikh Aftab Ahmed (CRP 104-L of 2019 & connected matters).

[2]Per Faqir Muhammad Khokhar J. in NaheedNusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.

[3] Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.