1991 PLP 805 (SCMR)

ISLAMABAD. The Deputy Accountant‑General, Incharge, Sub‑Offices of the AGPR, QUETTA. Islamabad, the 6th June, 1982. Subject: DECLARATION OF SECRETARY, HOME AND T.A. AND TOURISM DEPARTMENT, GOVERNMENT OF BALOCHISTAN AS HEAD OF DEPARTMENT IN RESPECT OF AFGHAN REFUGEES ORGANIZATION IN BALOCHISTAN. Sir, I am directed to convey the sanction of the President to the Secretary, Home T.A. and Tourism Department, Government of Balochistan, Quetta being declared as Head of Department in respect of Afghan Refugees Organization in Balochistan in terms of S.H.F.(10). (2) This sanction is being issued with the concurrence of Ministry of Finance (Regulation Wing) Islamabad vide their U.O.No.D.819‑8.2.82, dated the 24th May, 1982. Your obedient servant, S. ALI JAWAD NAQVI Section Officer." Afterwards, on the recommendation of the Selection/Recruiting Committee for the staff of Balochistan appointed the respondent as Refugee Village Administrator in Grade‑16 on 28‑1‑1981. During the course of his employment, a notice dated 21st July, 1988 was issued to respondent to show cause why disciplinary action, which may amount to his dismissal from service, should not be taken against him for the reason that he had failed to deposit the sale proceeds of packing materials of his camp for the period from May and June 1988, and had also remained absent from duty without leave for certain period of time, On receipt of the aforesaid notice, respondent deposited a sum of Rs.14,868 on 10th August 1988, being the sale proceeds of the packing material under his control, and made a reply dated 11th August 1988 to the show‑cause notice denying the charges levelled against him. Thereafter disciplinary proceedings were taken against respondent and his services were terminated by the Additional Commissioner, Afghan Refugees Organisation, Balochistan, Quetta by the order dated 3rd December 1988. Respondent filed a departmental appeal against this order which was heard and decided by the Additional Chief Secretary (Home) and Tribal Affairs Department who, however, took the view that both the charges were not of grievous nature and taking a lenient view, substituted the order of respondent's termination from service into reversion to the next lower grade i.e. of an Assistant in Grade‑

11. Respondent then filed an appeal to the Balochistan Service Tribunal. According to the judgment of the Service Tribunal learned counsel appearing for the appellant before the Tribunal urged "the crucial point in this case" that the appellant (respondent herein) having been appointed initially in Grade‑16 by the Government of Balochistan, vide Notification No.218 AR/80(E&B), dated 28‑1‑1981, could not be reverted to a lower Grade‑11 of an Assistant/Accountant as a result of penalty imposed upon him under the Balochistan Civil Servants (E&D) Rules, 1983." The Service Tribunal referred to section 12. of Balochistan Civil Servants Act, 1974 which reads as under:‑‑ "A civil servant appointed to a higher post or grade ad hoc or on temporary or officiating basis shall be liable to reversion to his lower post or grade without notice." The Service Tribunal taking notice of the language of the above provision of law took the view that since the respondent "was appointed substantively, and not on ad hoc or temporary basis, thus, the Competent Authority i.e. the Additional Chief Secretary (Home) Balochistan could not revert him from Grade‑16 to Grade‑11 and that too arbitrarily". It was mainly on the aforesaid ground that respondent's appeal succeeded with the result that the impugned orders passed against the respondent were held as illegal, being in contravention of section 12 of Balochistan Civil Servants Act, 1974 and were set aside and respondent was reinstated retrospectively with all back benefits under the Rules. According to the case set up by the learned Advocate‑General appearing for the appellants before us, a preliminary objection was raised before the Service Tribunal which reads as under:‑‑ "The Afghan Refugees Organization is under the control of Federal Government and under the Constitution; the Federal Government has established the Federal Service Tribunal to decide such case. Therefore the appellant has no lawful right to submit his grievances before this Honourable Tribunal. As such this Honourable Tribunal has no jurisdiction to consider this appeal which may kingly be dismissed." It appears from the impugned judgment of the Service Tribunal that this objection was not noticed, and this is a first plea that was raised by the learned Advocate General in support of the appeal among other several submissions advanced by him. Mr. M. Aslam Chishti learned counsel for the respondent on the other hand, submits that respondent having been appointed by the Provincial Government of Balochistan is an employee of the Province, and not the Federation, and, therefore, the Balochistan Service Tribunal was competent to entertain, deal with and decide the appeal. After having heard the learned counsel we feel that from the Memorandum dated 4th March 1982 and the letter dated 6th June 1982 reproduced above, the respondent may well be an employee of the Federation, and if this position is correct, then the question is whether Balochistan Service Tribunal was competent to entertain and decide the appeal of the respondent. We, however, do not feel it appropriate to decide this question, which is essentially a jurisdictional question of the Service Tribunal which had passed the impugned judgment, and, moreover the decision on this question is likely to affect a large number of employees working in the Organisation. We, therefore, deem it fit and proper to remand the case to the Service Tribunal to decide the jurisdictional question raised by the learned Advocate‑General and all other submissions that may be made on behalf of the parties. On this view of the ease this appeal is allowed, with the result that the impugned judgment of the Service Tribunal is set aside, and the case is remanded to the Service Tribunal for fresh decision in the light of the observations made above. The parties are left to bear their own costs. A.A./G‑307/S Case remanded.