2001 PLP (C (PLC(CS))

The instant revision petition under section 115, C.P.C. has been preferred by Mir Afzal against the judgment and decree passed by Additional District Judge whereby he accepted the appeal against the judgment and decree of the trial Court dated 8‑12‑1997 and restored respondent No. l to his post as Baildar.

2. Background of the case is that on 19‑10‑1994, one Khushal Khan Baildar, District Council Lakki Marwat, retired and his post had fallen vacant. The Chief Officer, District Council, Lakki Marwat, appointed Lal Badshah son of Said Badshah of Khairukhel Pakka, Tehsil and District Lakki Marwat, as Baildar in BPS‑1 with usual allowances etc.

3. Later on there were some complaints against the said Lal Badshah regarding his absence from duty, so as a result of the said complaints; a show‑cause notice dated 26‑4‑1995 was issued to Lal Badshah, Baildar, as he was found absent from Rest House Gaznikhel, by the Administrator on his surprise visit to the said rest house on 25‑4‑1995. The respondent/plaintiff did not reply to the said show‑cause notice and consequently, the District Engineer, District .Council, Lakki Marwat, was appointed as an Enquiry Officer through oral order of the Chief Officer. District. Council, Lakki Marwat on 27‑4‑1995. As respondent/plaintiff Lai Badshah was not appearing before the Enquiry Officer, so on 31‑5‑1995, the Enquiry Officer approached the said Lal Badshah to clarify his position and according to the Enquiry Officer he had admitted the charges and tried to ensure the Enquiry Officer to be dutiful in future. The Enquiry Officer recommended that as the charge has been admitted by respondent/plaintiff Lal Badshah, so his retention shall be liability and further recommended that he is not fit for the job and on the basis of this enquiry report, the Chief Officer vide his order, dated 4‑6‑1995, terminated services of respondent/plaintiff Lal Badshah w.e.f. 4‑6‑‑1995. On the same day, the Chief Officer appointed one Mir Afzal (present petitioner) on the recommendation of the Secretary, Local Government, N.‑W. F. P. Respondent No. l Lal Badshah instead of preferring an appeal to the authority, filed a civil suit in the Court of Senior Civil Judge, Lakki Marwat, against Chief Officer, Lakki Marwat and 7 others including Mir Afzal who was appointed in his place. The trial Court summoned the defendants who appeared and submitted their written statements. Almost 9 issues were framed as a result of divergent pleas of them The parties led their evidence and at the conclusion of the evidence and hearing the arguments of the learned counsel for the parties, the trial Court vide its judgment dated 8‑12‑1997, dismissed the suit of the plaintiff, leaving the parties to bear their own costs. Plaintiff Lal Badshah preferred an appeal in the Court‑of District Judge, Lakki Marwat, against the judgment and Decree of Civil ,Judge, Lakki, dated 8‑12‑1997. The learned Appellate Court after Bearing the arguments of the learned counsel for the parties, upheld ;that no show‑cause notice has been given to the plaintiff and that the enquiry has not been properly conducted. The plaintiff was not given any chance to rebut the charges and that there is nothing on the record to show that the said plaintiff has confessed his guilt. The Appellate Court also upheld that as Mir Afzal was appointed on the recommendation of the Secretary, Local Government; N.W.F.P., so all this drama was pre‑planned and in this background of the case, the Appellate Court accepted the appeal of Lal Badshah and set aside the judgment and decree of the learned lower Court upholding that the termination of Lal Badshah is illegal and ineffective on his rights.

4. Dissatisfied with the said order Mir Afzal Khan has preferred the instant revision petition on the ground that the judgment and decree of the learned Appellate Court is against facts, record and law and the Appellate Court has failed to appreciate the evidence of the parties properly and that the services of respondent No. l were purely and completely temporary and could be terminated any time without assigning any reason and the Appellate Court cannot either confirm the temporary service nor interfere in the termination order. According to the present petitioner, the services of respondent No. I have been properly terminated as a result of an enquiry, which was conducted to establish his guilt and to prove his, unauthorized absence from duty.

5. I have heard the learned counsel for the petitioner, respondent No. l and respondents Nos.2 to 8 and have also gone through the record minutely.

6. Admittedly under Rule 9, the remedy of appeal was available to the respondent/plaintiff. The remedy of appeal is mandatory and if he would have failed to get favourable order, he could have moved the Civil Court. On factual side, whatever the real facts may be, a proper show‑cause notice has been served on the present plaintiff Lal Badshah. The District 'Engineer was appointed as Enquiry Officer who himself approached the said Lal Badshah who was not coming before him. The Enquiry Officer reported that the said Lal Badshah is a liability on the department and he is not fit for the job. So in the light of this enquiry report, the Chief Officer terminated the services of respondent No. 1 plaintiff Lal Badshah and appointed the present petitioner in his place. As the respondent/plaintiff has failed to prefer an appeal against his termination and that a proper procedure has been adopted although with small loop‑holes and the termination order is based on the Enquiry‑Report, so in this background of the case, the order of the learned Appellate Court seems to be groundless and thus, in these circumstances, the revision petition P` in hand is accepted, the order of the learned Appellate Court, dated 19‑6‑1999, is hereby set aside and the suit of the plaintiff Lal Badshah is dismissed, with no order as to costs. H.B.T./215/P Revision accepted.