1989 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Ali Khan was appointed as Chowkidar in the Government Vocational Poly Technic Institute Sukkur vide order of the Principal of the Institute, dated 28th June, 1984, on the terms and conditions specified in the said order. The appellant's case is that although he performed his duties to the satisfaction of all concerned and no allegation of any lapses was attributed to him, the Principal of the Institute nursed grudge against him mainly because he wanted the appellant to work at his house and do his other personal jobs. Ultimately the appellant's services were terminated on the charge of his having misbehaved with the Principal, by order dated 1st August, 1987, which reads as under:- "The services of Mr. Ali Khan, Chowkidar, Government Vocational Institute for Boys, Sukkur are hereby terminated with immediate effect due to misconduct and mi.sbch:i6,,ur with the undersigned. Sd/- Zahir Hussain, Principal, Government Vocational Poly Technic Institute." Aggrieved by the above order, the appellant preferred departmental appeal to the Director of Technical Education, Sind, Karachi on 18th August, 1987 and as no decision was taken on his appeal within statutory period of 90 days, he fled the present appeal before this Tribunal on 18-11-1987. In the written statement filed on behalf of the respondents in reply to the memo of appeal, a number of allegations have been made against the appellant. As disclosed in the written statement the very appointment of the appellant was irregular being in contravention of the Government's orders. It is averred that the appellant had failed to produce domicile certificate and other necessary documents. Further allegation is that performance of Chowkidar was unsatisfactory as he was doing part-time job in some hotel. The appellant was also alleged to have availed (cave without proper sanction and on return from leave when the Principal called him in his office and made enquiry about his absence, he misbehaved with the Principal and even threatened to shoot him. When the appellant was found to have crossed all norms of decency, the Principal, in consultation with other senior members of the staff of the Institute, was constrained to pass the impugned order of the termination of his services. After hearing the arguments of the learned counsel for the parties, the appeal was allowed with no order as to costs and the impugned order was set aside by short order dated 20-10-1988, for reasons to be recorded later on. Following are the reasons in support of said short order. No doubt by the order of his appointment the appellant was required to produce certain documents. It was also mentioned in the said order that pending certain certifications, the appellant's appointment would be only provisional, and until then, his services were liable to he terminated without notice. It was not disputed that the appellant was civil servant within the meaning of clause (b) of subsection (1) of section 2 of the Sind Civil Servants Act, 1973 (hereinafter referred to as the said Act). Accordingly he was governed by the said Act and the rules framed thereunder, regardless of the stipulations listed in the appellant's appointment order. Obviously the appellant was not appointed against a temporary post nor any formal selection by any Departmental Selection Committee was the legal requirement in case of the type of appellant, appointment. As such his appointment could not be designated even as ad-hoc appointment. His appointment was also made by appropriate authority name, the Principal of the Institute. In spite of all this, his appointment could he revoked if he was unable to produce the documents required by law and rules. Now the question arose if the appellant's appointment was terminated for want of production of the specified documents. As is clear from the impugned order, the answer to the above question is in the negative. On the contrary he way allowed to continue in service for more than three years. The only reason of terminating the services of the appellant, as has been given in the impugned order, was his misconduct and misbehaviour with the Principal of the Institute. However, the relevant provision of law which deals with termination of service of Civil Servant is section 11 of the said Act. It reads as under: "11. (1) The service of a civil servant may be terminated without notice-- (i) during the initial or extended period of his probation: Provided that, where such civil servant is appointed by promotion on probation, or as the case may be, is transferred from one grade, cadre or host to another grade, cadre or post. his service shall not be so terminated so long as he holds a lien against his former post in such grade or cadre, but he shall be reverted to his former grade, cadre or post, as the case may be; (ii) on the expiry of the initial or extended period of his employment: or (iii) if the appointment is made ad hoc terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person. (2) Where, on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of a civil servant are required to he terminated, the person whose services arc terminated shall ordinarily he the one who is the most junior in such cadre or grade. (3) Notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof." It would appear that the termination of services of the appellant does not fall within the four corners of the above section. In other words his services could not be brought to an end without show-cause notice. Even otherwise on principle of natural justice, no one can be condemned unheard. Since the impugned order clearly shows that the appellant had mis-conducted himself and misbehaved with the principal, he stood condemned on that account. In such an eventuality he was entitled to show-cause notice. The learned Assistant Advocate-General frankly conceded that no show-cause notice was given to the appellant to the effect that he had misconduct himself and had misbehaved with the Principal. Apart from above we have noticed that the Principal has played a dual role of complainant as well as of a judge in this case. He was himself the complainant against the appellant inasmuch as that he made allegations against him that the appellant had misbehaved with him. Again he himself acted as a judge, as he awarded punishment to the appellant by terminating his service. It is a well-established rule of law that no person could be a judge in his own cause. As soon as the Principal was offended by the misbehaviour of the appellant, he himself should have refrained from taking action against him. Instead he should have made report to the officer next above him for taking appropriate action against the appellant. For above reasons the impugned order could not be sustained. As such it was set aside by short order referred to above. However, it is left open to the Department to initiate disciplinary action against the appellant for his alleged misconduct and misbehaviour with the Principal, strictly in accordance with the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. In case the allegations made against him are duly established, he could be visited with any prescribed penalty including termination of his service. A.A./184/Sr. S Appeal allowed.