1986 PLP 1337 (SCMR)

ABDUL QADIR SHAIKH, J.‑‑All these appeals arise out of a common judgment of Sind Service Tribunal, dated 25‑7‑1983 by which appeals of all the appellants herein were dismissed and the orders of their retirement from service were maintained.

2. Facts briefly stated are that on a complaint that some primary teachers were illegally and fraudulently appointed under the forged signature of Sub‑Divisional Education Officer, Hyderabad, an enquiry was conducted and the services of those teachers were terminated. Appellants were working as Headmasters of .the Primary Schools concerned, and they were examined as witnesses in the aforesaid enquiry. Finally, the Martial Law Authority who conducted the aforesaid enquiry directed that departmental action should not be initiated against the appellants Pursuant to this direction, the Sub‑Divisional Education Officer, Hyderabad issued notice, dated 22‑3‑‑1982 calling upon appellants to show cause why one of the major penalties should not be imposed on them since the charges had been proved against them in the enquiry conducted by the Headquarter of Deputy Martial Law Administrator, Hyderabad. Appellants filed replies separately but these were not found satisfactory, and they were compulsorily retired from Government service by separate order, dated 11‑7‑1982. Their appeals against these orders were dismissed by the Sind Service Tribunal by the impugned judgment, dated 25th July, 1983 as stated earlier.

3. Leave to appeal was granted by this Court in order to examine the question inter alia whether the departmental enquiry against the appellants violated the provisions of rule 5 of the Sind Service (Efficiency and Discipline) Rules, 1973.

4. After having heard the learned counsel for the parties, we find that the very basis of the departmental proceedings initiated against the appellant was an ex parte report by the Martial Law Authority'" against the petitioner which was considered by the Authorised Officers as binding on him and in his opinion he was only to inflict penalty on the appellants whereas the directive of the Martial Law Authority was just to the effect that departmental action may be taken against the appellants in accordance with law. This directive was totally misconstrued by the Authorised Officer, for, what he understood it to be was that he was required only to impose one of the penalties, the appellant already having been held guilty by the Martial Law Authority.

5. Learned Additional Advocate‑General, however, submitted that the Authorised Officer had decided under the provisions of Rule 5(i)(ii) of the Rules that regular enquiry was not necessary, and he, therefore, resorted to summary proceedings. But, learned counsel frankly conceded that no such order exists on record nor is there any mention in this regard in the proceedings ins the case. In the absence of any order passed under the provisions of Rule 5(1)(iii), the Authorised Officer was not competent to dispense with the full‑fledged departmental enquiry B and the impugned order of dismissal passed against the appellant was, therefore, wholly incompetent in law.

6. For these reasons, all these appeals must succeed and are accordingly allowed with the result that the impugned judgment of the c Service Tribunal as well as the impugned orders of compulsory retirement) of the appellant from service are quashed. In the circumstances, the parties are left to bear their own costs.

7. We might, however, clarify that nothing in 'this judgment will prevent the Authorities from taking any action in the matter in accordance with law. M. Y. H. ???????????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.