' RASHID ALI MIRZA (MEMBER).---Being aggrieved by the impugned order, the appellant, who was serving as General Manager (BMR) in Pakistan Steel, was reverted to the post of Deputy General Manager vide .Letter dated 13-1-2000 with immediate effect which has been challenged by the appellant. The contents of the letter are reproduced below:-- "PAKISTAN STEEL (CENTRAL ADMINISTRATION)
' No, AP-2K-6/1(P&C)/275 Dated: 13th January, 2000 To, ' Mr. Muhammad Aslam Khan, Deputy General Manager, B.M.R.
Pakistan Steel ' Subject: Reversion During Probationary Period ' You were promoted as General Manager vide G.M. (A&P)'s letter No,A&P99-6/1(P&C), dated 30-10- 1998.
2. Your performance on the post during probationary having been watched, has not been found upto the mark and satisfaction of your superiors.
3. You also failed to defend your position in this regard during personal hearing granted to you by the Competent Authority on 13th January, 2000.
4. It has, therefore, been decided by the Competent Authority to revert you as Deputy General Manager (PSE-V) with pay attached to it, with immediate effect.
5. You accordingly stand reverted to the post of Deputy General Manager with immediate effect.
(Sd).
(Hamid Pervez) Incharge (A&P)"
2. The appellant submitted departmental appeal against the above order dated 9-2-2000 which was not responded; hence, the appellant approached this Tribunal by filing the present appeal on 15-6-2000, praying to set aside impugned order dated 13-1-2000 and he be restored to his original position as General Manager in Pakistan Steel with all emoluments/benefits/allowances including difference in salaries/ allowances as General Manager. With seniority.
3. The brief facts giving rise to the appeal are that the appellant, who was initially appointed as Assistant Executive Engineer in Pakistan Steel, the respondent No,2 on 21-11-1973, was promoted as Executive Engineer on 23-9-1976 and then as Superintending Engineer on 1-6-1982. Thereafter on his satisfactory and meritorious service with the respondent No,2 he was promoted as Duty General Manager on 23-5-1989 and subsequently he was promoted as General Manager (Management Grade) on 30-9-1998. During his service, he did his Master of Civil Engineering and as per memo: of appeal he is the only Master Degree holder in his field in Pakistan Steel. He was reverted from the post of General Manager to the post of Deputy General Manager vide memo., dated 13-1-2000, against which the appellant has filed departmental appeal dated 9-2-2000, which was not decided; hence, the appellant filed a Constitutional petition No,D-56/2000 before Honourable High Court of Sindh which was not pressed as the Honourable High Court issued direction to the respondent No,2 to decide the departmental appeal dated 9-2-2000 filed by the appellant.
4. We have heard the appellant in person as also the learned counsel for the respondents and perused the written comments and the authorities cited at the bar.
5. The appellant in person contended that the reversion from the post of General Manager to the post of Deputy General Manager was illegal and without jurisdiction, the Chairman Pakistan Steel was not empowered to revert the appellant, who was promoted General Manager in the Management Grade with prior approval of the Ministry of Industries and Production, because the appellant's appointing authority was Federal Government therefore, the demotion of the appellant was grossly illegal, without jurisdiction and of no legal consequences. The appellant argued that the impugned order of demotion dated 13-1-2000 is nullity in the eye of law. He further contended that as per rules 2.4 (a) the appointing authority of General Manager is the Board of Directors Pakistan Steel with the approval of the Federal Government i,e, Secretary, Ministry of Industries and Production. He said that the promotion of the appellant to the post of General Manager after clearance/recommendation in DPC from the Board of Directors and conveyed to MOI&P vide letter No,A&P98-6/1(P&C) dated 30th September 1998 and the approval of the Secretary MOI&P was conveyed vide letter No,3(1)PR-/96 dated 14th October, 1998 along with the other officers, which was further concurrent by the Board of Directors appointed by Government of Pakistan on the meeting dated 22-1-1999 and conveyed to the appellant vide letter dated 9th March 1999 placed on record at 'B' 'C' 'P' 'D' pages 21-23-25,27-29 respectively. He further contended that the performance of the appellant during probationary period was adjudged satisfactory and upto the mark by his Director (Production) Mirza Tariq Beg .Vide letter dated 4th March, 1999. The appellant further contended that during the entire tenure as General Manager from 30th Sept. 1998 to 13th January, 1999, he was never conveyed any displeasure note. He said that during entire tenure of service which started in 1973 each and every officer including Chairman had lauded his performance and on acceptance he had been issued appreciation letter from time to time. He argued that the concerned Director of appellant Mr. M.I. Khattak has conveyed the performance of the appellant satisfactory on query from Director (A&P) on 6th December, 1999 which is on record and was furthe' confirmed by Incharge (A&P) in his note dated 17th December, 1999 Para-20 Page- 6 diary No,4865 dated 16-12-1999 which was placed before this Tribunal during argument. He argued that even his ACR for the year ending 1999 was adjudged above average by his immediate boss Director (P&D) Mr. M.I. Khattak, which is on record. The appellant further contended that as far as the letter for extension in probationary period is concerned, these were issued to all the General Mangers who were promoted with the appellant as a matter of policy and in support of his contention the appellant placed before the Tribunal (photo-copy)of the noting sheet (which is placed on record). He questioned how the performance of the officer could be adjudged unsatisfactory over night when the appellant had not been intimated during nearly 14 months as General Manager. The appellant further contended that respondent No,2 has no authority to revert the General Manager without approval of the Secretary, Ministry of Industries and Production. In his support the learned counsel for the appellant placed before this Tribunal copies o the letter of MOI&P dated 9th September, 2000 wherein explanation of1Chairman, Pakistan Steel is sought on reversion of the appellant and the reply of Director (A&P) dated 1st Feb.2001 to Mr. Tasneem Noorani, Secretary (MOI&P) admitting that the action against the appellant is illegal warrants cancellation which is placed on record. He fUrther contended and during argument placed before the Tribunal the Investigation Report of Special Army Monitoring team appointed by the President of Pakistan Affairs mentioned that he was victimized due to personal disliking of the Management and recommended for his restoration to the grade of General Manager, lastly he stated that the appellant has been punished illegally and without any substance on personal disliking of the Chairman The unilateral action of the respondent No,2 cannot be considered valid. When all is said, he said that all the actions have been taken at the behest of Chairman/respondent No,2 and victimized in such a manner not envisaged under the rules and he contended that the reversion order of the appellant smacks mala fide, being void, coram non judice may be set aside and the appellant may be restored to his original position as General Manager in Pakistan Steel with all emoluments/benefits/allowances including difference in salaries/allowances as General Manager with seniority. The appellant, as last legs of his arguments, contended that no show-cause notice, prior to inflicting the punishment, was issued a'nd no personal hearing was afforded, hence, the impugned' order is nullity in the eyes of laws and liable to be set aside on this ground alone, as held by the apex Court in a number of cases.
6. The learned counsel for the respondents argued that the present appeal is time barred by 35 days and has been filed beyond limitation period and no application for condonation of delay has been filed by the appellant and no cause of action accrued to the appellant. The appellant has been awarded major penalty on account of his performance during probation period. He argued that personal hearing was extended to the appellant before inflicting major penalty of reversion. He argued that the departmental appeal was not sent to the required quarter. He further said that the appellant has no right for promotion.
7. We have considered the above submissions and have gone through the material placed on record.
8. We would first consider the point of limitation, as raised by the learned counsel for the respondents. In this respect we state that the appellant was reverted vide order dated 13-1-2000 against which the departmental appeal dated 9-2-2000 was submitted within 30 days from the original impugned order which was not responded to despite statutory period of ninety days elapsed; hence, the appellant presented the instant appeal before this Tribunal on 15-6-2000 which was late by five days for which application for condonation for delay was filed on 12-6-2002, the present appeal is competent and within time no limitation runs therefore, the objection raised by the counsel for respondent has no fore.
9. Ministry of Industries and Production, Government of Pakistan D.O. Letter No,Dy-64/PR.I/00 (PS) dated 7-9-2000 and the reply of Director (A&P) of respondent No,2 itself admitted in his letter addressed to the Ministry dated 1-2-2001 that the demotion of the appellant is illegal ab-inito be restored, but Lt. Col. Afzal, the then Chairman Pakistan Steel, being biased and prejudice to the appellant, did not restore the position of appellant as the General Manager. The appellant filed a separate appeal before the Tribunal bearing No,457/2000 which is pending adjudication. The letter of the Ministry of Industries and Production, Islamabad dated 7-9-2000 addressed to Chairman Pakistan Steel addressed to Mr. Tasneem Noorani, Secretary to the Government of Pakistan, Ministry of Industries and Production Islamabad placed on record. It is observed that the respondents have failed to produce any documents in support of their claim. Neither any displeasure note is available on record nor any document is produced to support the claim that the appellant's performance was not satisfactory during probation period. Record did not show that personal hearing has been extended to the appellant before inflicting major penalty of reversion, as no documentary evidence has been brought on record, which could have easily been done by producing letter calling the appellant for personal hearing but that has also not been done, hence, we feel that the appellant has been condemned unheard. The major penalty awarded to the appellant without any legal justification and has no force. The record available with us show that the appellant submitted Departmental appeal on 9-2-2000 to Secretary (MOI&P) as well as to Chairman Pakistan Steel which was verified by the photocopy of Registered A/D receipt available in our record 'H' & 'I' page 61-67 hence the contention of learned counsel for the respondent No,2 has no force and is not accepted. The letter of the MOI&P dated 9th September, 2000 clearly shows that the respondent No .2 cannot take unilateral decision without consulting the MOI&P and the reply of Pakistan Steel's Director (A&P) acknowledging the action has been taken illegally may be cancelled. The letter dated 9th September, 2000 of MOI&P and Pakistan Steel Director (A&P)'s reply dated 1st February, 2001 is reproduced below:-- D.O.No,Dy.64/PR.I/00(PS)
GOVERNMENT OF PAKISTAN MINISTRY OF INDUSTRIES & PRODUCTION ISLAMABAD ' The Chairman, ' Pakistan Steel Mills Corporation, Karachi.
Subject: Cons. Petition No,D-56/2000 filed in the High Court of Sindh at Karachi, by Mr. Muhammad Aslam Khan v. MOIP and PSMC Dear Sir, ' Reference Pakistan Steel's Letter No,Law-HC (416)2K/211 dated 16th August, 2000 on the above subject.
2. I am directed to state that the decision on reversion to a lower grade from Management grade cannot be taken by the Corporation without prior approval of the Ministry of Industries & Production. You are therefore, requested to explain as to why Mr. Muhammad Aslam Khan has been reverted back to the post of DGM without seeking approval of Ministry.
3. An early reply in this regard is solicited.
(Sd.)
(Muhammad Ali Asif Gilani) Section Officer (PR.I)
Tele: 9209584"
PAKISTAN STEEL D.
0. No, D(A&P)/01/2000 February 1, 2001 Subject: Const. Petition No,D-56/2000 filed in the High Court of Sindh at Karachi, by Mr. Muhammad Aslam Khan v. MOIP and PSMC Dear Mr. Tasneem Noorani, MOIP D.O.No,64/PR.I/00(PS) dated 7th September, 2000 refers:-- ' I am enclosing complete case of Mr. Muhammad Aslam Khan who was demoted by the Chairman Pakistan Steel in violation of rules, which was rightly questioned by the Ministry. Notwithstanding a number of reminders, the reply could not be sent earlier since the Incharge (A&P) and (Law) were distorting facts and acting contrary to rules since they were receiving instructions direct from Chairman, by passing the channel of command. A bare reading of the case would confirm that the facts were distorted and contrived with mala fide intentions and even got vetted the Legal Consultant to further misguide everyone including the MOIP. Perusal of Annexures P, Q and .R would reveal the real facts and the drafted reply intended to be submitted to the MOIP would confirm the contrivance (Annexure S).
2. On discovery of real facts, administrative and disciplinary action was recommended on 10th January, 2001 against Incharge (A&P) (Para 21 of Page 11), which resulted into violent reaction of Chairman, Director (A&P) was ordered to be removed from his assignment and made Director (On Special Duty) and his office was also shifted - all these instructions were initiated under signature of Incharge (A&P), working under Director (A&P), which couldn't be more humiliating. The office was ransacked on 19th January, 2001 and all files were removed from the office of PS while Director (A&P) was sick and not in office (Page 32 and 33). The action was alarming enough to attract a news in the local papers (page34).
' The above facts would confirm that the environment prevailing in Pakistan Steel has little or no regard for rules, regulations, laws, customs of service and the entire working is based on personal whims, like/dislikes and arbitrary and mala fide action. The reaction of Chairman with regard to Director (A&P) cited above is manifestation of his mind set.
4. The demotion of Mr. Muhammad Aslam Khan, being grossly illegal, without jurisdiction and of no legal consequences, warrants cancellation of his demotion order and restoration as General Manager ab initio and necessary action against all involved in this case.
(Sd.)
Lt. Col. Syed Akber Hussain (Retd.)
Director (A&P)
1st February, 2001 ' Mr. Tasneem Noorani Secretary to the Government of Pakistan Ministry of Industries and Production Islamabad".
9-A. In view of what has been discussed above, the impugned order dated 13-1-2000 of demotion of the appellant is set aside and allow the appeal with direction to the respondent to restore the position of the appellant as General Manager with all back-benefits.
10. No order as to costs.
11. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per rule 21 of the Service Tribunals (Procedure) Rules, 1974.