2001 PLP (C (PLC(CS))

MUHAMMAD AYUB KHAN (MEMBER)

Arguments have been heard and record perused.

2. The services of the appellant, while posted as Director, Resources Development, Pakistan Boy Scouts Association (hereafter referred to as the PBSA), were terminated by order dated 7-4-1997 with immediate effect, impugned in the present appeal, feeling aggrieved therefrom he filed a departmental appeal on 6-5-1997, available at pages-139 to 141, (Appendix-M), which appears to be within time and when it was not respondend to within the stipulated period of 90 days, he preferred the present service appeal under section 4 of the Service Tribunals Act, 1973, before this Tribunal on 13-8-1997 which is also well within time and as such on the limitation side none can raise a finger to it. 2-A. Coming to the factual side, the appellant has stated in Para.2 of the memo. of appeal that he being B.A.LL.B, was initially appointed as Divisional Scouts Organizer, Hazara Division, Abbottabad, N.-W.F.P., in BPS-12 w.e.f. 2-3-1977, which post was subsequently upgraded to BPS-14, thereafter he was promoted as Assistant Provincial Secretary, N.-W.F.P. Boys Scouts Association (hereinafter called as the N.-W.F.P. BSA) to BPS-16 in 1981, followed by his promotion as Deputy Provincial Secretary, N.-W.F.P. BSA to B-17 w.e.f. 1-1-1985. He also held the additional charge of the post of provincial secretary (BPS-18) from 1-1-1985 to 5-8-1990 in his own pay and scale. It is also alleged that he served the world scouts Bureau, Asia Pacific Region, Manila (Philippine) from November, 1991 to November, 1993, and rejoined as Deputy Provincial Secretary, N.-W.F.P. BSA, Peshawar in November, 1993.

3. It is further averred at Para.3 of the appeal that the Chief Commissioner, PBSA was pleased to appoint the appellant (the Deputy Provincial Secretary, N.-W.F.P. BSA) in BPS-18 with usual allowances, as admissible. under the Rules, and adjusted him against the newly created post of project Director, Growth of Scouting project (hereinafter referred as GSP) w.e.f. 1-3-1994, available at page-102, Appendix-D, with the following terms and conditions:-- "(i) He will be posted at the National Headquarters, Pakistan Boy Scouts Association, Islamabad, and will be responsible to the Chief Commissioner, PBSA for all matters pertaining to Growth of Scouting 1993-2000 in Pakistan. (ii) He will be on probation for a period of one year from March 1, 1994 and after successful completion of his probation period he will be entitled to all facilities already in vogue at the National Headquarters; (iii) his pay will be fixed on receipt of Last Pay Drawn Certificate. "

4. The Government of N.-W.F.P. Education Department by Notification No.SO(PE)EDU/7-17/87, dated 31-5-1994 was pleased to relive the appellant then holding the post of Deputy Secretary, N.-W.F.P. BSA (BPS-17) with immediate effect with further direction that he would retain his lien against the post of Deputy Secretary, N.-W.F.P. BSA, Peshawar, till his confirmation under the National Headquarters, PBSA, and a copy of this notification was sent to al: concerned, inclusive of the appellant etc., vide Appendix-E, Page-103, placed on the appeal file.

5. By another Notification No. 382/3208-26, dated.28th August, 1995, Mr. -Shafiq Ahmad Jaskani, Secretary, PBSA, affiliated with the World Scout Bureau, intimated the appellant that: "consequent upon the revision of the Organizational Structure of the National Headquarters Staff, Syed Parvaiz Ali Shah Killani, Chief Commissioner, Pakistan Boy Scouts Association, was pleased to redesignate Mr. Naveed Ullah Babar (now appellant), (B-18), Project Pakistan Boy Scouts Association against the newly created post of Director, Resources Development in his own pay and scale w.e. f. 10-6-1995. "

6. The Chief Commissioner, PBSA, namely, Syed Parvaiz Ali Shah Jillahi, was pleased to confirm the appellant, Mr. Naveed Ullah Babar, (B-18) in the service of the National Headquarters against the post of Director Resources Development, PBSA in his own pay and scale w.e.f. 10-6-1995 by order, dated 31st August, 1995, copy available at page-110, Appendix-H, and still by another Order No.2-8/8867 -dated 5-6-1996, consequent upon the confirmation of the appellant against the post of Director, Resources Development, PBSA, Islamabad, his lien against the post of Deputy Secretary, N.-W.F.P. BSA was terminated vide order available at Appendix-J, Page 111, with copies to all concerned by the provincial Secretary, N.-WFP BSA Hayatabad Town, Peshawar, which was rightly done having already been confirmed in the PBSA.

7. It is crystal clear and amply proved that the services of the appellant were confirmed in his status and grade by the Respondents-Department as a result of which his lien was terminated by the Provincial Secretary, N.-W.F.P. BSA, Hayatabad, N.W.F.P.,- Peshawar, by order, dated 5-6-1996 having already been confirmed at the National Headquarters PBSA against the post of Director Resources w.e.f. 10-6-1995. However, a special meeting was convened by order, dated 27-2-1997, (Appendix-K, Page 112) p, and as per the minutes of the meeting the post of Director, Resources Development, being held continuously by the appellant and against which he was already confirmed (services regularized), was abolished and as a result thereof his services were terminated without issuance of any show-cause notice to the appellant. It was stated before us that he also participated in the meeting, but, being a small fry, he had no voice amongst the 33 persons associated in the meeting for digging out a grave collectively. One wonders that under what law the appellant could be terminated specially when he had rendered long meritorious services under the Organization. His curriculum vitae is available at Page 104 (Appendix 'F) which spreads over upto Page 108, and a glance at it indicates a lot of experience in his credit which he gained at the National and International levels which was only possible after having gifted with rich head and heart qualities. He travelled at every nook and corner of the world in his own field, participated in many programmes/meetings and forums of international repute which as already stated is not possible without having qualities in him. During all the times he was having complete confidence of all the authorities high and low. He appears to be most qualified and experienced person in the field of scouts not only at the national level but also at the world over. Some of his overseas participations have been enumerated at Page 106 and 107 of the appeal file. He also earned following Presidential Awards:-- (i) Medal of Merit. 31-10-1980 (ii) Bar to the Medal of Marit. 3-11-1985. (iii) Silver Palm 30-9-1989" He also visited the World Organizations, i.e. (i) India (ii) Nepal (iii) Hong Kong (iv) Philippines (v) Malaysia (vii) Mangolia. " besides conducting Research Work:

(i) Scout Camp Site in the Asia-Pacific Region. (ii) Scout Hostels Facilities in the Asia Pacific Region. (iii) Course Documents for Basic Unit Leader Training Courses Scout and subsections for Mangolia. (iv) Policy Organization and Rules for Mongolia. (v) It hand Badage Book which was reviewed by the Pak-Scout Publications Committee. " Rest of his contributions can better be read from the curriculum vitae (Pages 104 to 108), referred to above. A person having all the qualities of head and heart coupled with rich practical experiences, duly confirmed to his credit, could not be kicked out like that having already acquired a vested right to the post held by him uptill then or to any other equivalent post under the Organization specially when his lien had already been terminated by the Government of N.-W.F.P. due to his permanent absorption/confirmation by the respondents. It is not the spirit of law to deal with confirmed civil servants like that. The Administration appears to have kicked him out at its sweet discretion as if he was a chattel.

8. To repeat again, it is a fact that the appellant was terminated without issuance of any show-cause notice to him in total negation of the principle of audi alteram partem, deeply embeded/enshrined in the judicial pronouncements and a part of every statute. The appellant had really been placed in a very precarious condition/state of affairs but. in fact the Administration, on the contrary, has placed itself in a very critical situation the moment the appellant challenged the termination order. Law helps the vigilant and not the indolent. Time and tide wait for none. The Respondent- Department landed itself thoughtlessly but purposely in a vacuum.

9. The appellant, who is highly qualified and educated man having rich experience at his back, cannot be considered as a person lacking qualification or experience and, therefore, pursuant to the judgment of the Honourable Supreme Court of Pakistan reported in 1996 SCMR 413 he was not a person to be kicked out like that, having already been confirmed and his lien terminated due to his confirmation, effected by the Respondent-Department and as such, by no stretch of imagination, his termination can be viewed/held in order. It has also been held by the Honourable Supreme Court of Pakistan in 1990 SCMR 2330 that the principles of natural justice are to be read as part and parcel of every statute and that no detrimental action can be taken against any person without affording him an opportunity of, show-cause notice/without being heard. It is an age of awareness and civilization but despite this the respondents have taken a very wrong step, in no case, warranted under the law against the appellant. He had acquired a vested right to continue and carry out service under the Respondents having already been confirmed and the naked illegality committed by the respondents in kicking him out from service cannot be pardoned/regularized. Every departmental authority, high or low, and for that matter the. State/Government functionaries, must follow the law and should not be led by their own whims and fancies and wishful thinking. The Muslims in the sub-continent were under grave pressure of others where they could not peacefully live together, jointly conduct their religious affairs without being influenced by others, and carried on their day-to-day economic activities and keeping in view these factors the thinkers of the East Dr. Sir Muhammad Iqbal, Quaid-e-Azam Muhammad Ali Jinnah and their numerous companions collectively started raising their voice resulting in ultimate establishment of sacred land, the idea behind which was extremely loftly and noble wherein the citizens of this sacred land could live together peacefully with mutual understanding respecting rights of others and not to violate the rights of others (as has been repeated in the instant case) and if this state of affairs continues it is likely to disintegrate the very foundation of the State, visualized by the founders of the scared land. The Qibla given to us by the forefathers is "Unity, Faith and Discipline." Live and let others to live, respect others so that others may respect you and so on and so forth. There is no end to this spiral.

10. Allah Almighty, when created Adam, directed, all the angels, inclusive of Iblis (Satan) to bow before Adam, all the angels obeyed excpet Iblis who refused and boasted, having been born from fire whereas Adam from earth and was thus ordered to be expelled from heaven to the earth but before implementation of the order, Iblis entreated Almighty Allah to give him life/respite till dooms-day which was granted. In other words, Allah Almighty heard him before inliction of the punishment of expulsion from heaven to earth. This discussion is contained in verses 7:11 to 18 of Surah "Al-A' raf" (the Heights) of the Holy Qur'an.

11. Solomon s.a. S/o David s.a. was a Prohophet as well as king who had the knowledge of languages of all the living creatures, human beings, birds, j inns, animals etc. and when once hoopo-e- (~) was found absent and he directed that he would punish him severely or would salin him if he failed to explain the reasons for his, absence. The relevant verses 27:20 to 27:24 are contained in Surah "Al-Naml" of the Holy Qur'an and whereby when hoopoe appeared before Solomon s.a. he was not condemned unheard. In other words, lie was heard and after hearing let-off when found innocent. Justice is, celestial and stems from the Holy Book. Islam since the time of Adam continued upto the last Prophet Muhammad (p.b.u.h.) and would continue upto the doomsday. The various Prophets on their part imparted the celestial teachings to their disciples/followers and this process will continue till the doomsday as per the tradition of the Holy Prophet that the learned scholars are the follower/heirs of the Prophets:--

12. This is not for the first time that a wrong action has been taken by the Respondent-Department but such like occurrences have cropped up earlier also and have been adequately decided in the ends of justice by the superior Courts. In this respect the following judgments are relied upon and pressed into service in favour of the appellant:-- (i) PLD 1965 SC 90; (ii) 1994 SCMR 2332 (Anisa Rehman's case); (iii) 1997 PLC (CS) Lah. 1146; (iv) 1997 PLC (CS) Kar. 1014; (v) 1997 SCMR 1543; (vi) 1998 PLC (CS) SC 5 and (vii) 1990 SCMR 999.

13. Pursuant to the hard facts available on the file and as referred to above, this appeal succeeds and is hereby accepted with special cost of Rs.10,000 (Rupees Ten Thousand only) under section 35-A, C.P.C., 1908, to be paid by the Respondent-Organization to the appellant which is the minimum counsel's fee in such-like cases. Copies of the judgment shall be sent to the appellant and to the contesting Respondents. H.B.T./325/FST(Trib) Appeal accepted.