1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑This appeal was filed on 26th May, 1980. The appellant, Ghulam Ahmed Shahid, an ex‑Junior Clerk of the Office of D. C., Rahimyar Khan is aggrieved by the order dated 30th April, 1979, dismissing him from service and the order of the Commissioner, Bahawalpur dated 27th March, 1980, rejecting his appeal against the same. The appellant was charge- sheeted by the Addl. D. C. (G), acting as authorised officer for his failure to produce the Enquiry File No. 232 dated 2nd March, 1978 against Malik Mohammad Aslam, Tehsildar, Rahimyar Khan which was received by the appellant while he was HVC. He was also charged for misplacing the same. Explanation of the appellant was found unsatisfactory and Mr. Hakam Khan Baloch, Assistant Commissioner was appointed as Enquiry Officer who vide his enquiry report dated 10th March, 1979 held that the allegation of missing the said file has been proved against the appellant but he recommended for the lenient view. In view of the defence evidence, the appellant had good reputation. He was served with a show‑cause notice dated 19th March, 1979 for major penalty. After taking into consi deration his reply to the show‑cause notice, the D. C. vide his order dated 30th April, 1979, dismissed him from service by an ex parte order. His appeal was also dismissed by Commissioner, Bahawalpur vide his order dated 27th March, 1979. In this appeal the learned counsel contended that the appellant was not heard by the D. C. nor he was served with any notice for hearing. The appellant. in this behalf, placed reliance upon Rule 8 of Punjab Civil Servants (E & D) Rules, 1975 which implicitly lays down that the authority shall, after affording the accused an opportunity of being heard in person. The learned counsel argued on the basis of the record that the Enquiry Officer sent the file to the Authorized Officer as laid down under Rule 7 of the E & D Rules, 1975 and obtained the orders directly which were clearly illegal. According to the learned counsel there has been a violation of the express requirements of the rule, therefore, as laid down In re: Collector. Sahiwal v. M. Akhtar (1971 S C M R 681) and In re : Allah Ditta v. M. B. R. (Cons.) (P L D 1976 Lah. 897) : The following observations of the Court were implicitly relied upon : "The view taken by the Courts in Pakistan is contrary to the view taken by the Megarry, J. The Courts have been distinguished between the violation of the principle of audi alteram parrem and violation of any directory law providing for hearing on one hand and contravention of a mandatory provision of law providing for such hearing. The defect in the first category was held cured by a hearing given at later stages of the proceedings while it was found to be incurable if the matter fell in the second category." On the strength of above it is contended that the order was void ab initio and the defect could not be cured even in hearing of the case. The Department has nothing to controvert the above contention of the appellant. In the circumstances, we are constrained to hold that the order passed by the departmental authority is illegal and void ab initio. The appeal is accepted and the impugned order is set aside. The case is remanded to the D.C. Rahimyar Khan for de novo proceedings. Appeal accepted.