1981 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).‑This is an appeal .under section 4 of the Sind Service Tribunals Act 1973, against the order passed by the Government of Sind, dismissing the appellant from service as Deputy Director, Industries. The charge against the appellant was that he in .his capacity as the Deputy Director in the Directorate of Industries and Mineral Develop ment, Government of Sind, negotiated for money with one Mr. Malik of Lahore over a deal for purchase for Drilling Rigs. A telephonic conver sation was intercepted and taped in which it was alleged that the appellant asked Mr. Malik to come fully loaded and not to debit his expenses of visit to Karachi from his account. That Mr. Malik com plained that apart from 3% to be paid to the appellant, money was also being demanded by the person bringing the quotation. Meanwhile the appellant proceeded on leave from 27th August, 1975 to 26th November, 1975. A charge‑sheet was drawn up against the appellant for depart mental proceedings by the Secretary to Government of Sind Industries and Mineral Development Department. The appellant had left his address for service of his residence at Karachi. The charge sheet and statement of allegations were sent by registered post to the appellant on his Karachi address but the same were returned unserved with the postal endorsement that the door of the house of the appellant remained locked and he was said to be returning home late at night. Ultimately the charge sheet was posted by registered letter acknowledgement due on the address of his native place at Rohri on 22nd October, 1975. This letter accord ing to the appellant was received by his brother at Rohri on 8th November, 1975. This letter was re‑directed by his brother to the appel lant at Karachi in another cover and according to the appellant it was received by him on 12th November, 1975. It was stated in the charge‑sheet that the written defence statement could be filed within 7 days of the receipt of the letter. He handed over the reply to the charge‑sheet on the next day i.e. on 13th November, 1975 but to his dismay the order of his dismissal was already passed on 8th November, 1975 and notified on 12th November, 1975 without affording him a reasonable opportunity of showing cause against the said order. It has first been argued by Mr. Hassan Akbar, Assistant Advocate- General, appearing on behalf of the department, that this appeal is barred by time. He has pointed out that the review petition bears the inward stamp of 4th February, 1976 of the department of Industries. It has on the other hand been shown by Mr. Mansoor Ali Khan that a copy of the review petition might have been forwarded to the department but the original review petition had been submitted direct to the Chief Minister as the Authority' on 3rd December, 1975 well within 30 days of the order of dismissal effective from 8th November, 1975. It has then been pointed out that the present appeal before the Tribunal, having been filed on 31st March, 1976 was beyond 120 days from the date of dismissal and had been filed late by 19 days. It may be pointed out that there was difference of opinion regarding interpretation of the period of limitation under section 4 of the Sind Service Tribunals Act, 1973. Under this section appeal could be filed within 30 days of the communication of the order of dismissal, but where an appeal, review or representation to a departmental authority is provided, the civil servant aggrieved had to prefer such departmental proceedings and wait for 90 days before moving the Tribunal. A liberal view was being taken of this provision that after the period of 90 days had elapsed from filing departmental appeal the appellant could still await the period of 30 days for moving the Tribunal i.e. the aggrieved civil servant had the initial 30 days for filing departmental appeal and 90 days more for the appeal to lapse and he could then file an appeal before the Tribunal within the next 30 days i.e. he could in all avail of 150 days. The later view was that apart from 90 days he had only 30 days more excluding the period of 90 days taken in departmental appeal, i.e. in all 120 days. This later view was approved by the Supreme Court in unreported decision in C. P. S. L. A. No. K‑3i of 1978 dated 20th March, 1978. The Supreme Court was also of the view that ordinarily the period of limitation could not exceed the period of 120 days. In the present case, in view of the doubts created, the appeal to the Tribunal had been preferred after 139 days, since in these days the practice was to allow a period of 150 days for filing such appeals. An application has been moved for condonation of this delay which was due to a bona fide mistake caused by interpretation of the Statute not happily worded. 'This delay of 19 days is accordingly condoned by allowing the application moved by the appellant under section 5 of the Limitation Act. It has then been argued by the learned Assistant Advocate‑General that the registered letter containing the charge‑sheet had originally been sent on the Karachi address and since it was returned undelivered, it could be presumed that the addressee had managed to avoid its receipt. No such presumption can, however, arise. The letter was returned undelivered and there was no endorsement of refusal. . It has been stated that the letter sent to Rohri was posted on 22nd October, 1975 and ordinarily it should have taken three days to reach. An acknowledge ‑I has been shown from the file, but it neither beats the postal stamp nor any date of delivery. It does not bear the signature of the addressee or the person taking delivery on his behalf. It has not therefore been established that this letter was delivered to the appellant prior to 12th November, 1975. On the other hand the orders of dismissal appear to have been passed on 8th November, 1975 without hearing the appellant. The learned Assistant Advocate‑General has in the end argued) that under Rule 8(6) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973,"where the authority competent to dismiss or remove a person from service, or to reduced person in rank, is satisfied that for reason to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause no such opportunity shall be given to the accused". This Rule has however no application to the facts of the present case because the authority, who in this case was the Chief Minister, had not recorded in writing any reasons for denying the accused person his right and opportunity of showing cause against his dismissal. In fact this was an ordinary case and there was hardly any such emergency justifying departure from the Rules or procedure. It is a well‑recognized principle of natural justice that no one should be condemned unheard. The order of dismissal was passed ex parte without allowing a reasonable opportunity to the appellant to show cause against the order. It is evident that the order of dismissal was passed in hot haste. The appellant was to return from leave after 26th November, 1975 when no problem regarding service of notice would have arisen. Under these circumstances, without going into the merits of the case, we are of the unanimous view that the appellant should have been given All facilities to defend himself and his explanation should have been con sidered before passing of the final order of dismissal. The impugned order contained in the notification dated 12th November, 1975 dismissing the appellant from service with effect from 8th November, 1975 is accordingly set aside and the case is remanded to the Secretary to Government of Sind, Industries and Mineral Development Department for holding a fresh enquiry under the Sind Civil Servants (Efficiency and Discipline Rules, 1973 against the appellant. This enquiry should be concluded within a period of 3 months from the date of this order.