P L D 1985 Lahore 337 (PLP)

Ch. Muhammad Ali with Ijaz Feroze for Petitioner. Rashid Aziz, A. -6. for Respondents. Date of hearing : 10th March, 1985. Facts giving ri3e to this constitutional petition, briefly stated, are that the petition was an employee of the Municipal Corporation, Faisalabad. He, at the relevant time, was posted as Octroi Superintendent when on 14-10-1982 a criminal case was registered against him under M. L. O. 17/77 on the allegations that while acting as Office Superintendent, he tampered with the office record of the Municipal Corporation, Faisalabad, and that he was guilty of inefficiency on account of misplacing certain tender * documents. Petitioner was tried by the Summary Military Court, Faisalabad and was convicted and sentenced to six months' R. I. and a fine of Rs. 1,00,000 which was subsequently reduced to three months' R. I. and a fine of Rs. 50,000 by the D. M. L. A. The petitioner served out the sentence and also paid the fine.

2. After the petitioner had served out his sentence, lie applied to the respondent No. 1 for permission to join the service when he was supplied a copy of the order dated I 1-4-1983 which was to the effect that. he had been dismissed from service with effect from the date of his conviction i.e., 30-10-1982. Petitioner challenged the order of his dismissal in-an appeal which was dismissed by the Director, . Local.. Government . and Rural 'Development, Faisalabad Division, vide order dated 21-4-1984. Petitioner challenged the order of his dismissal through this constitutional petition.

3. Learned counsel for the petitioner contends that the petitioner was entitled to a show-cause notice under rule 13(1) of the Punjab Local Council Servants (Efficiency and Discipline) Rules, 198.1, which notice was not given to him before ordering his dismissal. Rule 13(1) is as follows : (1) Where a servant of a local council is convicted of an offence involving moral turpitude which has led to a sentence of fate or imprisonment, he may, after being given a show-cause notice, be dismissed, removed or compulsorily retired from service or reduced in rank, by the authority, without following the procedure laid down in these rules."

4. Contention of the learned counsel finds support from the plain language of the afore-referred provision. It is not denied by the respondent that the show-cause notice was not served upon the petitioner before the order of his dismissal was passed. Learned Advocate-General appearing for the respondents, however, submits that show-cause notice contemplated by the afore-quoted sub-rule can be dispensed with where the authority is satisfied that it is not reasonably practicable to give such a notice. He relies upon rule 13(2) which is reproduced hereunder : (2) Where the authority is satisfied that for reasons to be recorded in writing it is not reasonably practicable to give the accused an opportunity of show cause, it may impose any of the penalties under these rules, without following the procedure laid down in these rules." Learned Advocate-General further points out that competent authority who passed the impugned order of petitioner's dismissal recorded a reason therein for not giving the show cause to the petitioner. Reason assigned for proceeding under, rule 13(2) which finds mention in. the impugned order itself may be reproduced verbatim :

5. Examination of the afore-quoted provisions shows that where it is obligatory under rule 13(1) to give a show-cause notice before order in the dismissal or imposing any other penalty mentioned therein, it i open to the authority under sub-rule (2) of rule 13 to dispense with the opportunity of show cause but this can be done only if the authority i satisfied for reasons to be recorded that it is not reasonably practicable to give such an opportunity. Language employed in rule 13(2) is indicative of the concern and anxiety of the rule-making authority to ensure that opportunity of show cause shall be denied to the local council servant only in those cases where the competent authority is satisfied that it is not reasonably practicable to give such an opportunity. In the instant case, reason stated in the impugned order for dispensing with the show-cause notice cannot be said to be the reason envisaged in sub-rule (2) of rule

13. Merely because the Municipal Corporation, Faisalabad had not received the copy of the judgment of the Summary Military Court did not constitute o a valid justification to deprive the petitioner of a very valuable opportunity of show cause against the penalty of dismissal. Municipal Corporation, if it was so minded, could well have obtained the requisite copy of the order of the Summary Military Court. Thus, the competent authority, in my view, had no lawful or valid basis for proceeding under rule 13(2) so as to deny to the petitioner an opportunity to show cause.

6. It is next contended by the learned Advocate-General that the factum of conviction having not been denied by the petitioner, it was wholly unnecessary to give him show-cause notice. This argument is against? the plain language of rule 13(1) which is attracted only in a case of al local council servant who has been convicted of an offence involving moral turpitude and is sentenced to imprisonment or fine. This sub-rule then provides that in such a case, the local council servant may be dismissed or given any other penalty mentioned therein after he is given a show cause notice. Notice provided in sub-rule (1), to my mind, is intended to enable the concerned local council servant to show to the authority that on the facts and circumstances of his case, no penalty at all is warranted or that he may be dealt with leniently and given lesser penalty instead of the one sought to be .imposed on him, For instance, if the penalty sought to be inflicted is one of dismissal, he might satisfy the authority that reduction in rank would meet the ends of justice in his case. Thus the show-cause notice contemplated in sub-rule (1) grants a very valuable opportunity to the affected employee which must be afforded to him and which, as -noticed above, can only be taken away under sub rule (2) provided the authority is satisfied that it is not reasonably practicable to give such an opportunity. Looked at from this angle, petitioner was clearly entitled to the show-cause notice as provided in rule 13(1) which admittedly was not given to him.

7. Having canvassed his submissions afore-referred, the learned Advocate-General at this stage has also quite frankly conceded that in the facts and circumstances of this case, petitioner should have been given an opportunity to show cause but he has requested that the respondent be permitted to proceed against the petitioner afresh after giving him show cause notice.

8. In view of what has been stated above, the impugned order of petitioner's dismissal from service is declared to be without lawful authority and of no legal effect. Resultantly, this petition is allowed but there shall be no order as to casts in the circumstances of the case. It shall, however, be open to the competent authority, if it so wishes, to proceed against the petitioner afresh in accordance with law. M. A. K. ???????? Petition accepted.