1986 PLP 1336 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Facts of this case briefly stated are that Siraj Ahmed Bablani, first respondent herein Apprenticeship Officer of the Regional Directorate of Apprenticeship Training, in Grade 16, was served with a charge‑sheet, dated 15‑2‑1979, and in due course the Authorised Officer held him guilty of gross misconduct, corruption and criminal misappropriation of funds, and recommended major penalty of dismissal from service. The Secretary to Government of Sind in the department in the capacity of "Authority" accordingly issued notification, dated 19‑8‑1979 dismissing the respondent from service.

2. Respondent filed an appeal against this order before the Chief Secretary, Government of Sind which was accepted under notification, dated 17‑9‑1979 and he was ordered to be re‑instated with effect from the date he was dismissed from service. It was, however, directed that "he will, however, remain under suspension from the same date till the conclusion of fresh enquiry to be commenced soon."

3. Afterwards a fresh show‑cause notice, dated 20‑8‑1981 was served upon respondent containing the same charges. He furnished a reply which was, however, found not to be satisfactory and he was dismissed from service under notification, dated 10‑9‑1982. His departmental appeal against this order was dismissed and he then filed an appeal before Sind Service Tribunal.

4. In support of the appeal respondent submitted, to state in the words of the Service Tribunal, "while upholding the departmental appeal, dated 17‑9‑1979 the appellate authority vide notification, dated 21‑6‑1981 had given specific direction that a fresh enquiry should be conducted against the appellant which meant that action should have been initiated against the appellant under rule 5(2) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. But the 'authorised officer' in contravention of these clear cut orders, issued a show‑cause notice under rule 5(3) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 which deprived the appellant of a chance to defend the charges levelled against him and produce evidence in his favour."

5. Learned Additional Advocate‑General who appeared before the Tribunal on behalf of the Provincial Government did not dispute the above contention of the appellant which according to the Service Tribunal was borne out on the record. The Sind Tribunal accordingly observed as under:‑ "The appellate order contained in the notification, dated 21‑6‑1981 inter alia states clearly that the appellant 'will remain under suspension from the date of his re‑instatement until the conclusion of fresh enquiry to be conducted soon'. In the Sind Civil Servants .(Efficiency arid, Discipline) Rules, 1973 procedure for enquiry is provided under Rule 5(2) read with rule 6 which was not followed in the instant case. Contrary the directions given by the appellate authority, summary procedure under rule 5(3) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 was adopted. This was done without any lawful authority. In view of the foregoing, the order of dismissal is set aside. The appellant should be re‑instated in service with immediate effect and a fresh enquiry should be initiated against him under rule 5(2) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973." Petitioner Government now seeks leave to appeal from the judgment of the Tribunal, and it is submitted by Mr. Muzaffar Hassan, learned Advocate‑on‑Record that it was open to the 'Authorised Officer' to dispense with the regular enquiry and resort to the procedure laid down under section 5(3) of the Rules.

6. This plea has rightly been rejected by the Service Tribunal for the reason that by the directive of the appellate authority contained under the notification, dated 17‑9‑1979 was that the procedure of a full‑fledged enquiry and not a summary enquiry was to be followed. The Authorised Officer, therefore, having acted contrary to the said directive the order passed by him was without lawful authority. There is, therefore, no merit in this petition, and it is dismissed. M . Y . H . Petition dismissed.