2005 PLP (C (PLC(CS))

JUSTICE (RTED.) ABDUL GHANI SHAIKH (CHAIRMAN).--All these six appeals involve common question of law and fact were heard together and by this consolidated judgment are being disposed off.

2. The facts relevant for the purpose of disposal of these appeals summarized as under:-- Mrs. Pushpa Bai (Appeal No 48 of 2004) She was appointed as Primary School Teacher on 29-10-1990 and was posted at Government Girls Primary School, Kantio, Taluka Chachro. She also completed P.T.C Training on Government expenses in August, 1993. In the year, 2000 she was proceeded with departmentally and was awarded major penalty of Compulsory Retirement' vide order dated 27-5-2000. She was, however, subsequently reinstated in service vide order dated 1-4-2001 and then resumed her duties. Vide letter dated 2-9-2003 of Assistant Accounts/Audit Officer, Mirpurkhas her pay was stopped. Oam Parkash (Appeal No 49 of 2004) He was appointed as Naib Qasid in the year, 1992 and was posted at Government Girls Primary School, Kantino, Taluka Chachro. In the year, 2000 he was proceeded with departmentally and. by order dated 27-5-2000 he was awarded major penalty of 'Compulsory Retirement'. However, vide order dated 12-7-2001 he was reinstated in service. On reinstatement his services were placed at the disposal of D.E.O. Schools (Male), Mirpurkhas, and was posted as Naib Qasid at Government Girls High School, Bhan Singhabad, Mirpurkhas. At the instance of higher-ups his pay from August, 2003 has been stopped. Shahnawaz (Appeal No.52 of 2004) He was appointed as Primary School Teacher vide order dated 29-5-1995 and was posted at Government Primary School, Haji Khan Pathan, District Badin. He was paid salary for almost 8 years but suddenly it was stopped with effect from October/November, 2003. Kirshan (Appeal No.53 of 2004) He was appointed as Primary School Teacher vide order dated 10-2-1996 by D.E.O. (Male) Secondary, Tharparkar as Mithi and was posted at Government High School, Hayat Halepota. He was paid salary regularly upto April, 2003 but since May, 2003 it was stopped. Vishno (Appeal No.54 of 2004) He was appointed as Primary School Teacher vide order, dated 22-2-1996, by D.E.O. (Male) Secondary, Tharparkar at Mithi and was posted at Govt. High School, Arekhi. He was paid salary regularly upto April, 2003 but since May, 2003 it was stopped. Jai Parkash (Appeal No.58 of 2004) He was initially appointed as Junior Clerk vide order dated 19-5-1995 by the then Director Schools, Mirpurkhas Division and was posted at Govt. High School, Janjhi District Tharparkar. However, there was no post lying vacant, therefore; he could not resume his duties. Again vide order dated 15-5-1998 he was appointed as Junior Clerk and was posted at Govt. High School, Nabisar. From where he was transferred at the office of D.E.O. Training and lastly posted at Government High School Patoyoon, Mirpurkhas. He received salary upto July, 2004 but since August, 2003 it was stopped. All the appellants after exhausting departmental remedies which remained un responded filed these appeals.

3. Learned counsel for appellants argued that appellants were bona fidely recruited by the Competent Authority and were posted at different schools where they performed their duties for over 8 years without any hindrance. Appellants Pusha Bai and Oam Parkash were also proceeded with departmentally and were awarded major penalty of `Compulsory Retirement'. However, on acceptance of their departmental appeals they were reinstated in service. He submitted that all of sudden without any reason their salary was stopped, which action on the part of the respondents being illegal, ab initio null and void is liable to be struck down. In support of his contention he relied upon (i) 2000 PLC (C.S.) 784 (ii) 2004 SCMR 49 (iii) 2004 PLC (C.S.) 463, and (iv) 2004 PLC

125. He also relied upon an unreported judgment passed by this Tribunal in Appeals Nos. 285 of 2002 and 76 of 2003 in case of Mst. Riffat Zohra dated 30-8-2004.

4. In rebuttal, learned Asstt. A.G. while referring to the written statement (s) submitted that appointment and posting orders of the appellant during inquiry were found bogus and fake. Therefore, their salaries were stopped.

5. There is no denial of the fact that appellants performed their duties and for considerable period of over 6 years they were paid their salaries, suddenly without any show-cause notice, inquiry or personal hearing their salary was stopped. Learned Asstt. A.G. argues that appointment and positing orders of the appellants during inquiry were found bogus and fake. She has however, not produced a copy of such inquiry report. There is also nothing on the record to indicate if at any stage of such so-called inquiry any of the appellant was joined to defend their cause. A bogus, fraudulent or a forged appointment letter may be manipulated by forging signatures of the Appointing Authority or with the connivance of the Appointing Authority or by manipulation of the record or by any other conceivable method. The Department has not provided us any such detail in this regard. In the absence of any tangible evidence to show that the appointment/posting orders were bogus or fake, mere simple word has no legal value. The appellant served the Department for quite considerable period of over 8 years but the Authorities 'concerned remained mum and never inquired about the genuineness and authenticity of such orders. They were paid salaries from Government exchequer for such a long period but suddenly instead of dismissing or removing their services on the basis of allegation of bogus and fake appointment orders simply their salaries were stopped, which in our view is glaring irregularity on the part of the respondents. In a case of Qazi Akhtar Ali v. Director of Agriculture (Economics and Marketing) Lahore and others, 2000 PLC (C.S.) 784, it was held that if the employee is made to work without payment of salary it would be against Islam which envisages payment of wages before sweat of toil is dried up. This act would also be violative of the principles of policy contained in Chapter 2, Part-11 of the Constitution so also Article 3 of the Constitution which casts duty on the State to eliminate all forms of exploitation.

6. In a case of Province of Punjab v. Muhammad Afzal, 2004 SCMR 49, the Apex Court set aside the dismissal of a civil servant accused of manoeuvring a bogus appointment after having rendered six years service without affording him proper opportunity of hearing and completion of mandatory formalities as envisaged in the Civil Servants (Efficiency and Discipline) Rules, 1973.

7. It is not the case of respondents that appellants are not performing their duties. Therefore, action of stoppage of salaries is neither legal nor proper and justified, which caused a grave miscarriage of justice too.

8. Accordingly, these appeals are accepted and orders impugned herein relating to the stoppage of salaries are set aside. The respondents are directed to release their salary along with all dues. The respondents would, however, be at liberty to hold a full-fledged regular inquiry in respect of genuineness or otherwise of the appointment/posting orders through regular inquiry after affording full, fair and proper opportunity of hearing to the appellants and after observing all the codal formalities. There shall be no order as to costs.

9. Announced in open Court. S.A.K./41/K. S. T. Appeal accepted.