2018 PLP (C (PLC(CS)N)

ABDUL MAALIK GADDI, J.

Appellant, Inayatullah has filed instant service appeal against the impugned order dated 12.11.2005, passed by the respondent No.2, whereby his appeal against the order dated 14.07.2003, passed by the learned District and Sessions Judge, Mirpurkhas imposing on him major penalty of removal from service was dismissed.

2. Relevant facts in brief are that the appellant was serving as Sweeper in the Court of Civil Judge and First Class Magistrate, Kunri, when on 11.04.2003, the Presiding Officer of the said Court made a report against him to the then District and Sessions Judge, Mirpurkhas for his unauthorized absence from duty with effect from 02.04.2003 to 11.04.2003 without sanctioned leave or any intimation, as such, his explanation was called, which could not serve upon him, the same was repeated, but any result. The complete report regarding unauthorized absence of the appellant was again called by the District Judge from the Civil Judge and F.C.M, Kunri, who again reported that the appellant continuously remained absent from 02.04.2003 to 04.06.2003, unauthorizedly, and during the said absence period, no intimation was received from him and due to his continuous absence from duties with effect from 02.04.2003 to 30.06.2003 and non-service of notice upon the appellant, the show-cause notice was got published in daily newspaper "Jurrat" dated 02.07.2003, requiring the appellant to appear before the District Judge, Mirpurkhas within seven days to explain his position but the appellant did not appear. Consequently, the appellant was removed from service vide order dated 14.07.2003 under Rule 4(b)(iii) of the Sindh Civil Servants (E&D) Rules, 1973.

3. The impugned order dated 14.07.2003 was assailed by the appellant through departmental representation to the Registrar of this Court dated 25.07.2005 alleging therein that he was never served with any show-cause notice, charge sheet nor he was heard before passing his removal order from service. The appellant in the said representation has also taken the plea that he was falsely involved in Criminal Case No.59 of 2002 of police station Town Mirpurkhas and was confined in Central Prison, Hyderabad, where no newspaper was supplied/provided to him. Even otherwise, the alleged notice was published in Urdu newspaper, whereas, his relatives have Sindhi mother tongue and there was no evidence that Urdu newspaper was read by his relatives; therefore, appellant had no knowledge about any notice published in Urdu newspaper. As such, according to him, his absence from the duty was neither willful nor deliberate but was beyond his control. However, according to him, he had been acquitted from the said case vide Judgment dated 21.10.2004. Thereafter, he made applications for his re-instatement in service to the District and Sessions Judge, Mirpurkhas and then filed departmental appeal which was dismissed. Hence, this service appeal along with application under Section 5 of the Limitation Act, on the basis of almost on same facts and grounds, which he had been urged in the departmental appeal, with the prayer to reinstate him in service.

4. Learned counsel for the appellant while relying the facts and grounds mentioned in this appeal has also argued that imposing of major penalty without holding a regular inquiry was in violation of relevant rules and law and was also against the principle of natural justice; that the appellant was not afforded an opportunity of hearing and defend him in rebuttal of allegations against him, which seriously prejudiced the appellant and resulted into miscarriage of justice; that on the relevant dates of alleged absence period, the appellant was confined in jail in Criminal Case No.59 of 2002 and no show-cause notice was served upon him issued by District Judge, Mirpurkhas, therefore, his absence from the duty was beyond of his control and after acquittal of the appellant, he preferred departmental appeal, but the same was dismissed without considering his pleas/stance without assigning any good reason. However, learned counsel in support of his arguments has relied upon the following case laws with prayer to allow this appeal:- (i) Noor Muhammad v. The Members Election Commission, Punjab and others reported as 1985 SCMR 1178; (ii) Rashid Mehmood v. Additional Inspector General of Police and 02 others reported as 2002 SCMR 57; (iii) Muhammad Haleem and others v. General Manager (Operation) Pakistan Railways Headquarters Lahore, and others reported as 2009 SCMR 339; (iv) Naseeb Khan v. Divisional Superintendent, Pakistan Railways Lahore and another reported as 2009 PLC (C.S.) 19. (v) Tasleem Akhtar v. Pakistan through Secretary Revenue, Islamabad and 3 others reported as 2010 PLC (C.S.) 795.

3. Conversely, learned A.A.G. though supported the impugned orders passed by the District and Sessions Judge, Mirpurkhas as well as in departmental appeal, but failed to controvert the point as raised by the appellant in this appeal and has reiterated that the appellant remained absent from his duty for the relevant period without prior permission, thus, he was of the view that the appellant was habitual in remaining absence from his duty; therefore, was not entitled for any relief and this appeal is liable to be dismissed.

6. We have heard the learned counsel for the parties at a considerable length and perused the record with their able assistance.

7. It reveals from the record that the appellant was confined in jail in Criminal Case No.59 of 2002 for the entire period during which disciplinary proceedings were initiated/pending against him before the District and Sessions Judge, Mirpurkhas. Thus, it is evident that absence of appellant from his duty was neither deliberate nor willful. The circumstances were beyond the control of the appellant and non-reply of the explanation or show-cause notice was not due to negligent conduct of the appellant, but owing to his ignorance about his initiation of the proceedings against him. This fact has not been sufficiently controverted by the learned A.A.G. The publication of the show-cause notice in daily Urdu newspaper "Jurrat" dated 02.07.2003 has not been of much aid for informing the appellant as he was confined in jail. There is absolutely nothing on record that the explanation or show-cause notice issued against the appellant through newspaper was provided in the prison to the U.T.Ps. at the relevant time. When confronted with the learned A.A.G. that alleged show-cause notice was published in Urdu newspaper and the mother tongue of the appellant and his relatives is Sindhi and no Urdu newspaper reached in village, his relatives were residing, then how the appellant was served with the show-cause notice. Nothing was on record that show-cause notice was ever served upon the appellant in jail. As observed above, the appellant has not been heard during departmental proceedings, thus, it is manifest that the principle of natural justice that "none be condemned unheard" has been violated in this case. In this respect, we are supported with the cases of (1) Mrs. Anisa Rehman v. P.I.A.C. and another reported as 1994 SCMR 2232, (2) Pakistan International Airline Corporation through Chairman and others v. Nasir Jamal Malik and others reported as 2001 SCMR 934 and (3) Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others reported as 2005 SCMR 678.

8. Admittedly, the appellant was not heard before passing adverse order of inflicting major penalty of removal from service upon the appellant. Therefore, in the peculiar circumstances of the matter, the impugned orders dated 14.07.2003 and 12.11.2005 passed by the District and Sessions Judge, Mirpurkhas and by departmental authority are not sustainable in law and same are set-aside.

9. In view of the above, after perusal of service record of appellant, we partly allow this appeal in terms whereby converting the major penalty of the appellant of removal from service to the minor one under sub-clause (ii) of clause (1) part (a) of Rule 4 of Sindh Civil Servants (E&D) Rules, 1973 by withholding his annual increments for five (05) years of his service and reinstate him in service. However, the intervening period from 14.07.2003 till the appellant resumes his duty shall be considered towards his extraordinary leave without pay. Appeal is disposed of in above terms. ZC/I-28/Sindh Appeal accepted.