2003 PLP (C (PLC(CS))

ABDUL GHANI SHAIKH (CHAIRMAN).

The facts relevant for the purpose of disposal of the appeal are that appellant working as Assistant Registrar, Cooperative Societies, was sent on deputation in the year, 1993 to Sindh Cooperative Housing Authority and was posted as Administrator, Works Cooperative Housing Society, Limited, Karachi. On the allegation of bogus and double allotments of certain plots of the Society, he was charge -sheeted on 15-9-1993, which in his reply he denied vehemently. His reply was not found satisfactory and he was awarded major penalty of Compulsory Retirement vide order dated 11-6-1995. His departmental appeal however, succeeds and he was ordered to be re-instated in service vide notification dated 27-10-1996 with a direction to hold enquiry afresh.

2. After reinstatement he was again served with charge-sheet dated 16-6-1997 on the same allegations of bogus and double allotments of various plots of the Society to number of illegal allottees in violation of rules. In his detailed reply, he vehemently denied the allegations and pleaded that he allotted the plots under the directives of the then Chief Minster. An enquiry was conducted by Mr. Ahmed Saeed Abbasi, Joint Registrar. Co operative Societies, Sindh Hyderabad, who in his enquiry report found the appellant guilty of misconduct and recommended minor penalty of 'Censure' against the appellant. However, with the approval of Competent Authority, appellant was awarded major penalty of Compulsory Retirement' vide order dated 27-1-1999. His departmental appeal addressed to the Chief Secretary, Sindh was rejected and such rejection order was communicated to him through letter dated 8-5-1999. He has now invoked the jurisdiction of this Tribunal praying for setting aside the penalty and reinstatement in service with all back-benefits.

3. It is contended that appellant had committed no illegality or irregularity. He had neither cancelled any plot nor allotted the same to any one at his own accord. All the plots were cancelled by appellant's predecessor. Nasimul Malik, whereas some were allotted by predecessor administration of appellant and some were allotted by appellant under the directives of the then Chief Minister, Sindh. Further, it is submitted that Syed Zahid Imam, the then Managing Director of Sindh Co-operative Housing Authority by concealing material and true facts submitted false reports to high-ups and falsely involved the appellant. Next, it is argued that the then Advisor to the Chief Minister. Sindh had acted as 'Competent Authority' in the case of the appellant, who was not legally competent to act as Competent, Authority, thus the approval accorded by the Advisor for awarding major penalty to appellant was without lawful authority and coram non-judice. It is also contended that Enquiry Officer keeping in view the nature of allegations and reply of appellant recommended for minor penalty of Censure, but the Authorized Officer and the Competent Authority, without any legal justification recommended and awarded major penalty of Compulsory Retirement to the appellant, which, under the law is not warranted. Lastly it is argued that appellant on attaining the age of superannuation was due to retire on 13-7-2000, but due to departmental jealousy at the fag end of his career was put at stake. In support of his contentions, learned counsel for the appellant relied upon, (1) PLD 2000 Karachi 333, (ii) 2001 YLR 304, and (iii) 1991 PLC (C.S.) 444.

4. On the other hand learned Assistant Advocate-General has argued that appellant in violation of Rules and Regulations alotted number of plots to illegal allottees in an illegal manner and thus not only deprived the legitimate owners of their legal rights but also put them and the society in heavy financial losses. That the appellant in his reply to charge-sheet and final show-cause notice admitted illegal allotments made by him and that no illegality or irregularity was committed by the Department in awarding the penalty to the appellant. He added that Advisor to Chief Minister was appointed under Rule 6(1) of the Rules of Business, 1986 and through another notification dated 8th January, 1998, under Rule 6 (ii) of the Rules of Business, 1986 the Chief Minster delegated powers of Minister to the Advisor for Cooperation thus the Advisor to Chief Minister having powers of Minister had validly exercised his power as Competent Authority. We have considered the above submissions, perused the case-papers and gone through the case law referred to by learned counsel for the appellant. For awarding major penalty to an employee, the approval of the Competent Authority under rule 5(4)(b) of Sindh Civil Servants (E&D) Rules 1973, is a condition precedent. In the instant case the Advisor to Chief Minister Sindh for Cooperation delegated with the power of Minister had acted as Competent Authority who accorded such approval. But the very appointment of Advisor to the Chief Minister being in violation of the Constitution was declared as invalid and without lawful authority by a Division Bench of Honourable High Court of Sindh, in a case of Ahmed Yosuf Ali Rizvi and others v. Muhammad Ali Butt and others reported in PLD 2000 Karachi 333, consequently, the orders passed by the Advisor were also declared as being without lawful authority and of no legal effect. In such a position, the approval for awarding major penalty to the appellant accorded by the Advisor in the capacity of Competent Authority was without lawful authority and coram non judice. Besides, the departmental appeal addressed to the Chief Secretary, Sindh, should have been forwarded to the Chief Minister because major penalty to appellant was awarded with the approval of the Minister yet the same was decided by the Chief Secretary whose status was below the status of Minister, therefore, the order passed on departmental appeal by the Chief Secretary, Sindh is also without lawful authority and coram non judice. In view of the legal position, the appeal is accepted and both the impugned orders dated 27-1-1999 and 8-5-1999 passed by respondent Nos.2 and 1 respectively are set aside, as being unjust, unwarranted and of no legal consequence. It may be observed that appellant has already attained the age of superannuation during the pendency of appeal and was due to retire w.e.f. 13-7-2000, therefore, no useful purpose would be served if the matter is remanded for fresh proceedings. Accordingly, we direct that appellant be deemed to be in service from 27-1-1999 i.e. the date he, was compulsorily retired till 13-7-2000, when he attained the age of superannuation, for the purpose of pensionary benefits. Parties to bear their own costs: Announced in open Court. H.B.T./125/KST Appeal accepted.