2007 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

On 16-11-2000 a show-cause notice was issued to appellant Abdul Sattar Javed, Assistant Director, NADRA under section 13 of the Civil Servants Act, 19 1973 as amended by the Civil Servants Amendment Ordinance, 2000 read Establishment Division's O.M.No.3/8/2000-R-2, dated 27th July, 2000. By this notice the competent Authority had recommended the retirement of the appellant on completion of 25 years of his service on the following grounds:-- "(5) And whereas, the competent authority has approved recommendation of your retirement on the following grounds:- (i) You have been penalized two times under the Government Servants (Efficiency and Discipline) 1973, for the following charges: (a) A minor penalty of censure was imposed on you vide Registration Directorate's Notification No.5/126/E.I, dated 17-9-1985 for failing to hand over charge of Slink den by cards to your successor on 24-9-1983 at DRO, issuing blank identity cards to Statistical Assistants in bulk instead of issuing on daily basis. (b) A minor penalty of censure was also imposed upon you vide Registration Directorate's Notification No.5/126/E.I, dated 17-7-1997 for (i) collecting ten thousand blank identity cards on 12-4-1983 from RRO, Lahore for DRO, Rajanpur and leaving the same in a Tonga which were delivered in the RRO Lahore by the Tongaban; and (ii) failing to report the matter to your seniors. (ii) The charges prove your irresponsible attitude towards official work, therefore, your services are no more useful to the organization.

2. As a consequence of this notice the appellant was retired from service vide order, dated 14-4-2001. Against this order he filed a departmental appeal on 26-4-2001 but it was not responded. It is prayed by him that the impugned order of his premature retirement be set aside and he be reinstated into service with back benefits.

3. The appeal is resisted by the respondents. It is stated that the minor penalties of censure were imposed upon the appellant on 17-9-1985 and 17-7-1997, therefore, his case was placed before the Review Committee, set up for reviewing the cases of Civil Servants in BPS-19 and below, and on recommendation of that Committee the order impugned in the appeal was passed.

4. Today we have heard the learned counsel for the parties and have also perused the record.

5. The appellant has been prematurely retired from service on account of two minor penalties of censure imposed upon him on 17-9-1985 and 17-7-1995. We are of the view that on these penalties the respondents could not pass the impugned order. Article 13 of the A Constitution of the Islamic Republic of Pakistan, 1973 says that no person can be punished twice on the same charge. Once the appellant was censured he could not be awarded the penalty of retirement from service on the same charges. It is a case in which Article 13 of Constitution of the Islamic Republic of Pakistan, 1973 was violated by the respondents.

6. There is no gainsaying the legal proposition that the employer i.e. the Government is the best Judge to decide the fitness of a civil servant for his further retention in service after he completes 25 years. The same view has been expressed by the apex Court in 2004 SCMR B

707. But the facts of the present case are different. It was only in view of the penalties of censure imposed upon the appellant that the charge of irresponsible attitude towards official work was levelled against him. This charge was not an independent charge. On the contrary it was dependent on the first charge relating to imposition of penalties of censure. Since in the first charge relating to imposition of penalties of censure appellant could not be compulsorily retired from service on the principle of "double vexation", therefore, on charge No.2 also which was dependent on the first charge he could not be retired from service. The legal position would have been different had the charge of "inefficiency" been independent of the first charge and not a part and parcel of it.

7. For the above reasons we accept the appeal and set aside the impugned order. The appellant is reinstated into service with back benefits.

8. No order as to costs. Parties be informed. H.B.T./148/FST Appeal accepted.