' NAZAR MUHAMMAD SHAIKH (MEMBER).---The facts of the case are that the appellant was appointed as Security Guard Group-II in the Respondent-Organization on 20-10-1987. He was promoted to Group-III in the year 1996. Appellant received a letter from the respondents dated 14- 3-2002 whereby he was called for personal hearing before the Respondent No,1 to explain his conduct as to his alleged absence from duty for 22 days during the month of January, 2002 and also his being habitual absentee. Appellant appeared for personal hearing on the said date, but he could not be given personal hearing. Appellant received an order dated 23-4-2002 from Respondents whereby he was compulsorily retired from service under Removal From Service (Special Powers) Ordinance 2000.
2. Learned counsel for the appellant argued that the appellant has been imposed major penalty of compulsorily retirement from service in disregard to the dictates of law and principles of natural justice as he has not been afforded any opportunity to defend the allegations. He also alleged that the respondents have illegally and malafidely deprived the appellant of his service as he has neither been issued any charge-sheet nor show-cause notice and also that the appellant was not afforded personal hearing on 9-4-2002 though he was summoned on said date. He further argued that according to Rules appellant's duty was for 15 days in a month and the remaining 15 days were off and, as such, he could not be absent for 22 days in the month of January, 2002 as alleged by the Respondents. Appellant's counsel also relied on the ruling of the Hon'ble Supreme Court in the case of Abdul Hafeez Abbasi and others v. PIA reported in 2002 SCM R 1034 wherein their Lorships in the said Judgment relying on the principles laid down in the case of Anisa Rehman v. Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations and others reported in 1994 SCM R 2232 had ordered for the reinstatement of the appellants. In that case no personal hearing was afforded in disregard of the principles of natural justice and the time honoured maxim "audi alteram partem".
' The learned counsel for the respondents opposed the appeal and stated that the appeal is not maintainable as the appellant had not filed departmental representation and as such he did not meet the requirements of section 4 of the Service Tribunals Act, 1973 and as such, appeal is liable to be dismissed. He further pointed out that according to section 9 of Removal From Service (Special Powers) Ordinance 2000 it is mandatory on an accused civil servant to file representation within a period of 15 days from the date of passing the original order imposing penalty. In this regard he has relied on the Hon'ble Supreme Court's ruling in the case of Mst. Samra Ashfaq v. Government of N.- W.F.P. And 2 others reported in 1996 SCM R 273 wherein it has ruled that in absence of jurisdiction FST could not proceed further. The relevant portion of the said ruling reads as under:- "....In spite of the fact that the Tribunal held that it had no jurisdiction, it proceeded further to express its opinion on the question of limitation as well as on merits. This is a wrong practice to hold that the Tribunal has no jurisdiction yet to probe and decide on merits. If a Tribunal is of the opinion that it has no jurisdiction it should stop then and there and should preferably not venture on expressing opinion on the merits of the case."
' The learned counsel for the respondents further pointed out that the appellant was a habitual absentee and has remained absent for 361 days in a period of 5 years with 120 days and 144 days unauthorized absence in years 1999 and 2001 respectively. He further argued that the appellant had not contested that he was not given personal hearing on 9-4-2002. He further stated that normal thing for the appellant to do in case he was heard on 9-4-2002 was to file a written request or objection to the Respondents stating that he had appeared for personal hearing as directed but was not heard.
4. In the rebuttal, the learned counsel for the appellant stated that no departmental appeal was necessary to be filed as the Respondent-Organization have no (sic) statutory rules. He stated that this principle has been laid down in various judgments of the Hon'ble Supreme Court.
5. We have carefully considered the arguments from both sides and perused the record.
6. The facts of the record clearly indicate that the proceedings against the appellant suffer from serious infirmities. Firstly, the appellant was issued a show-cause notice on 14-3-2002 does not indicate as to what penalty was proposed to be imposed upon the appellant. This is a mandatory requirement under the provisions of Removal From Service (Special Powers) Ordinance and also mandated by various decisions of the Hon'ble Supreme Court. Failure to mention the proposed penalty to be imposed upon the appellant has seriously compromised his defence.
7. Respondents while issuing the impugned order have mentioned that the appellant could not give plausible reasons for his absence during the course of personal hearing whereas the appellant has denied that he was given personal hearing on 9-4-2002. In case, the appellant had appeared for personal hearing as stated in the impugned order, it would A have been in the fitness of things that the respondents should have mentioned the explanation rendered by the appellant in the impugned order which was not found plausible. Respondents have only summarily stated that the appellant could not justify his absence.. We feel that the impugned order, therefore, does not meet the requirements of section 24(a) of General Clauses Act, 1897. Secondly the Respondents did not rebut the appellant's contention that he was required to perform duties 15 days in a month with 15 days off. Appellant had contended that since he had 15 days off as per Duty Roaster he could not have been absent for 22 days in January, 2002 as alleged by the Respondents.
8. Adverting to the contention of the learned counsel for the respondents that the appeal of the appellant was not maintainable as he had not filed departmental appeal which was mandatory under the Removal From Service (Special Powers) Ordinance 2000. This contention appears to be misconceived, as section 9 of the said Ordinance does not make it obligatory on the accused civil servant to file departmental representation to the competent authority. Section 9(1) of the said Ordinance reads as under:-- "9. Representation and review:--(1) A person on whom a penalty is imposed under section 3, may, within fifteen days from the date of communication of the order prefer a representation to the Prime Minister or such officer or authority as the Prime Minister may designate: ' Provided that where the order has been made by the Prime. Minister such person may, within the aforesaid period, submit a representation to the President."
The reading of the above provisions of the said Ordinance does not make it mandatory to file departmental appeal. The rulings of the Hon'ble Supreme Court in case of Abdul Hafeez Abbasi and others v. P.I.A. And others have clearly ruled that the departmental representation was not necessary where Organization has non statutory Rules. In view of the above facts, the appeal has been rightly made to the Tribunal and is maintainable under section 4 of the Service Tribunal Act, 1973.
9. As regards appellant's record of being habitual absentee and the facts and figures given by the respondents need to be established unequivocally by affording appellant full opportunity to defend the, allegations either through show-cause notice or by giving him full details of his absence so that he can rebut the allegations, if incorrect.
10. The above facts clearly indicate that the proceedings against the appellant have not been conducted in accordance with the rules and he has also been denied the reasonable opportunity of defending the allegations. We find that the principles of natural justice have also been violated and, as such, we set aside the impugned order and direct the respondents to reinstate the appellant in service. However, we direct the C respondents to conduct de novo proceedings against the appellant strictly in accordance with rules and by affording full opportunity to the appellant to contest any allegation as alleged dereliction of duties by the appellant need to be appropriately dealt with. The question of back-benefits shall be decided on the outcome of the de novo proceedings against the appellant.
11. No orders as to cost. Parties be informed accordingly. accordingly.