2010 PLP (C (PLC(CS))

IFTIKAHR MUHAMMAD CHAUDHRY, C.J.

Petitioner has filed this petition against the judgment dated 17-10-2009.

2. Facts of the case briefly are that petitioner served for 17 years in Pakistan Ordinance Factories (POF) and when he was performing his duty as a skilled worker, he was made to face departmental proceedings in pursuance of show-cause notice dated 21-12-2002 for the following charges:

"(i) You are irregular in attendance and habitual of absenting yourself without prior permission and applying for regularization of your absence period afterwards. As such your 627, days' absence period was regularized as EOL from time to time on compassionate grounds with the intention to give you opportunity of improvement. Such an undesirable act on your part is contrary to the disciplinary rules and reflects your non-seriousness towards POFs Service. (ii) You have been charged sheeted 7 time during the service for the offence like, absenting from duty unauthorisedly, violating safety instructions, misbehaving, abusing and trying to grab the Chargeman, signing the Gate Pass unauthorisedly, not replying the charge sheet in time. Consequently you were warned 4 times, fined 2 times and even suspended from service w.e.f. 27-2-1996 on disciplinary grounds, but no concrete result came forth. (iii) You failed to improve yourself and your annual increments for the years, 1994, 1995 were not granted to you for your qualifying service less than six months. Annual increment for the year, 1996 was withheld with recurring effect and the increment for the year, 2001 was withheld with non-recurring effect on disciplinary grounds.

3. It seems that in exercise of powers conferred by section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, the inquiry was dispensed with. The petitioner, however, submitted reply of the show-cause notice which was found satisfactory as such he was compulsorily retired on 7-2-2003. He preferred departmental appeal which was also rejected vide order dated 8-8-2003. Subsequent thereto he approached the Service Tribunal on 6-9-2003 by filing appeal No.979 (R) CS/2003 which has been disposed of vide impugned judgment.

4. Learned counsel for the petitioner submits that petitioner had filed appeal along with an application seeking directions to the department not to dispossess him from official quarter, the Service Tribunal, however, instead of deciding the appeal on merits, disposed of on the ground that petitioner's grievance was only that his pensionary benefits were not being paid to him which were allowed subject to vacation of the official quarter on receipt of the pensionary benefits within two months. According to him, the show-cause notice, contents whereof have been reproduced herein above, and reply whereto as submitted, reflected that no case of misconduct was made out; that the petitioner had contested the matter for more than seven years at all levels and in case he had to obtain only pensionary benefits he could have exercised that option without even filing departmental appeal or approaching the Service Tribunal. Learned counsel stresses that before the Service Tribunal the petitioner filed appeal with a prayer, as is evident from the impugned judgment, that the order of his compulsory retirement be set aside and he be reinstated into service and that he had high hopies that he would get justice, however, when his appeal was taken up, after about six years the same was not disposed of on merits and the members failed to apply their judicial mind and decided the appeal perhaps only taking into consideration the application of stay.

5. On the other hand, Mr. Khadim Hussain, Legal Officer, POF has appeared in response of notice and has stated that the department would not engage a counsel and that he would argue the case himself. According to him, on the basis of service record, misconduct against the petitioner was, prima facie, established, therefore, inquiry was dispensed with in terms of section 5(4) of the RSO. He states that petitioner had volunteered before the Service Tribunal for accepting the pensionary benefits subject to vacation of the quarter, therefore, appeal was disposed of accordingly.

6. We have heard the learned counsel for the petitioner, the representative of the' respondents and have also gone through the impugned judgment. It may be noted at the outset that we would refrain for commenting on the allegations incorporated in the show-cause notice because the Tribunals have not decided the appeal on merits.

7. Admittedly, the petitioner had submitted application before the Service Tribunal for temporary injunction seeking orders to restrain the respondents from ejecting him from official quarter and in main appeal, he had made a prayer for setting aside the order of his compulsory retirement to be reinstated into service, as is evident from the contents of the impugned order. No arguments were advanced by both the sides on merits, therefore, for such a reason, it was incumbent upon the Tribunal to have either confined itself to the extent of the disposal of the application and at the same time appeal should have been decided on merits which is a due right of a litigant. A person who has put in 17 years service and is waiting for the result of his appeal for more than 6 years before the Service Tribunal and is interested for grant of an interim injunction against the officials not to dispossess him from the official quarter beside requesting for reinstatement would not alone confine himself to the extent of payment of pensionary benefits alone which otherwise being his right were available to him under the rules. There was no necessity for passing such order nor this was prayer in the appeal or the application. Had the petitioner been interested only to get pensionary benefits, he would have approached the department at early stage who were bound to pay the same. Therefore, this is a classical case of non-application of judicial mind and the appeal has been disposed of without taking into consideration the merits as well as the other attending circumstances including the one that the petitioner had suffered agony for the last more than 6 years and was waiting for a right decision on merits from the Service Tribunal but his appeal was dismissed summarily contrary to the principles of justice. We have also noted that this is not only one case in which the Service Tribunal is disposing of the matters in perfunctory manners without applying judicial mind. Within few days, we have come across 2/3 such like cases, therefore, we are of the confirmed view that it is the right of the petitioners that they should be given hearing and after noting their contentions and the law on the subject as well as the precedent judgments, the cases be disposed of. The Service Tribunal is, though a constitutional Tribunal for the purpose of Article 212(2) of the Constitution, it does not mean that it has not to follow the principles of justice. It is the duty upon it to dispose of the matters judiciously instead of dismissing the appeals in the manner which is not recognized under any principle of law. Therefore, the impugned judgment is not maintainable. It is, therefore, a fit case to remand the same to be decided on its merits afresh after providing due opportunity to parties.

8. For the foregoing discussions, this petition is converted into appeal and is allowed as a result whereof case is remanded back to the Tribunal with the direction that Chairman of the Tribunal should take note of it and then dispose of it himself accordingly. The parties are left to bear their own costs. M.H./M-12/SC Case remanded.