1994 PLP (C (PLC(CS))

‑‑‑Rr. 4, 5 & 7‑‑‑Termination of service‑‑‑Services of employee‑ were terminated consequent to disciplinary proceedings without issuing him show cause notice and without paying requisite compensation‑‑‑Order of termination passed against employee could not be deemed to be termination simplicitor, but as a punishment for which procedure laid down under the Rules was to be resorted to while dispensing with his‑services and that was requirement of law‑‑‑Order of termination which otherwise smacked of mala fides could not be upheld. Shahzada Shahpur Jan for Appellant. M. Javid Aziz Sandhu, Standing Counsel for Respondent No.

1. Syed Asif Shah for Respondents Nos. 2 and

3. Date of hearing: 6th April, 1994. JUDGMENT. JUSTICE (RETD.) ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑The appellant was appointed as Senior Clerk in the year 1981 in the Afghan Refugees Organization. He was further promoted as Assistant (BPS‑11) and thereafter as R.V.A. (BPS‑16) by order dated 13‑6 1990. His services were terminated being no longer required vide order dated 27‑8‑1992. He challenged the said order by making a departmental appeal on 1‑9‑1992 but the same was rejected vide letter dated 12‑10‑1993. He then filed this appeal before this Tribunal on 8‑11‑1993. The learned counsel for the appellant argued that the appellant was a civil servant and his services have been terminated without show‑cause notice and, therefore, the order is illegal and liable to be set aside.

2. Mr. Syed Asif Shah learned counsel for the respondents 2 and 3 argued that appellant on promotion to BPS‑16' was a contractual employee which was extended from time to time and this Tribunal has no jurisdiction to entertain this appeal. He further argued that impugned order was passed by the Commissioner, Afghan Refugees and the appellant filed a mercy appeal to the same authority, therefore, it cannot be treated as a departmental appeal and this appeal is not competent.

3. Respondent. No. l Secretary, State and Frontier Regions, have also filed comments. In the summary of the case present with comments it has been categorically stated that all the employees retrenched so far have been allowed compensation package approved by the former Prime Minister. However, in the present case, the appellant has been terminate on disciplinary grounds as such he was not allowed any compensation.

4. The learned counsel for the appellant has refuted the contention of respondents and submitted that the appellant was not on contract. In support he has placed on record copy of Notification No.21, dated 13‑6‑1990 issued by the Commissioner, Afghan Refugees, whereby the appellant was promoted as RVA in BPS‑16 and his appointment was temporary but it was not on contract. To this, the learned counsel for the respondents could not explain or controvert this stand, and as such the legal objection with regard to jurisdiction is hereby repelled. The appellant for all purposes is civil servant as Senior Clerk (B‑7), Assistant (B‑11) and Superintendent (B‑16). The second objection of departmental appeal is also without substance. Under section 4 (1) of the Service Tribunals Act, 1973, appeal before the Tribunal is only competent if an aggrieved civil servant has exhausted the departmental remedy by making a representation or appeal, and in this case the appellant did exhaust that remedy and made a `mercy appeal' addressed to the Commissioner, Afghan Refugees, which was given due consideration and filed. It was incumbent upon the departmental authority to have forwarded the appeal to the proper quarter as laid down by the Supreme Court in the case reported in 1988 SCMR 1458 and as such this appeal does not suffer from the legal infirmity as urged by the respondents.

5. The contention of the appellant is that prior to termination order, he was deputed on detailment duty on Encashment point at Tochi Road, Bannu, by order dated 20‑7‑1992 and the appellant reported to Mr. Wycliffe, Incharge UNHCR, but the aforesaid order was cancelled on 23‑8‑1992, and according to the appellant, he was treated as absent during this posting. A few days thereafter, the impugned order of termination was passed on 27‑8‑1992. The contention of the learned counsel for the appellant gets support from the comments filed by the Secretary, SAFRON Division, that services of the appellant were terminated consequent to the disciplinary proceedings and he was not paid the requisite compensation. This being the case, the impugned order of termination cannot be deemed to be a termination simplicitor, but as a punishment, for which procedure laid down under the E&D Rules was to be resorted to while dispensing with the services of the appellant, and that was the requirement of law. The order smacks of mala fide and cannot be upheld, and is hereby set aside. The appellant is reinstated into service with all back benefits. H.B.T./939/Sr.F Appeal allowed.