RASHID ALI MIRZA, MEMBER - Being aggrieved by and dissatisfied with the impugned order dated 17.05.2003 wherein the respondent No. 1 had converted the major penalty of removal of the appellant from service to that of compulsory retirement over the departmental appeal filed against the order which was communicated to the appellant on 19.05.2003, hence the appellant filed the present appeal under Section 4 of the Service Tribunals Act, 1973 on 01.09.2003 praying to set aside the impugned order dated 17.05.2003 and, to reinstate him in service with back benefits.
The Order of Suspension, Annexure "A" speaks of the charges on which basis the appellant was removed and later on his punishment was converted into retirement which is reproduced hereunder:--- No, B/A. A Sattar dated at Shikarpur the 20.4.2002: "On the approval of the competent authority Mr. Abdul Sattar Sethar Clerk Utility Branch of Shikarpur GPO is hereby suspended with immediate effect due to late credit Electric bill amount Rs.
4,750/- The appeal has been directed to attend the Shikarpur GPO daily basis during office hours, (sic).
Sd/- Senior Post Master Shikarpur GPO"
2. Briefly, the facts leading to the appeal are that the appellant was appointed as Junior Clerk in Postal Department. Vide letter dated 24.4.2002, he was suspended with immediate effect due to late credit electric bill amounting to Rs. 4,750/-. On 07.11.2002, he was removed from service under Removal from Service (Special Powers) Ordinance, 2000, but on his departmental appeal to respondent No. 1, his punishment of removal from service was converted into compulsory retirement vide order dated 17.05.2003.
3. The respondents in their para wise comments have supported the impugned order to be justified.
4. We have heard the learned counsel for both parties and have also perused the record.
5. Learned counsel for the appellant contended that the impugned order of removal of the appellant was passed on 7.11.2002 under Removal from Service (Special Powers) Ordinance, 2000 against which the appellant preferred departmental appeal on 25.11.2002, and, the punishment of removal was converted into compulsory retirement vide order dated 1,7.05.2003 against which service appeal before the Tribunal was filed by the appellant on 01.09.2003. In support, he has filed Application for Condonation of delay supported with affidavit wherein it has been stated that the appellant had become seriously sick and was under treatment of the Doctor; hence he could not approach this Tribunal within prescribed time. In support of his illness he has produced a number of Medical Certificates and slips of medicines as Annexure-DD., which are on record. The learned counsel for the appellant contended that the impugned order passed without providing the reasonable opportunity of hearing to the appellant is illegal. The learned counsel for the appellant has contended that the appellant had received telephonic call from his home that his wife is in serious condition because she was pregnant, he therefore, after informing his seniors and with their permission had rushed to his home where he got admitted his wife in hospital, arid few days after, a male boy was born due to which reason the bill was credited late. He contended that there was no misappropriation or misconduct, but despite that situation, without considering the factual position, the respondent had rejected the departmental appeal of the appellant. He further contended that the appellant was a confirmed employee, but without issuing him any show- cause notice or charge-sheet or without providing him chance of personal hearing he was compulsorily retired from service which is illegal.
5. The contention of the learned counsel for the respondents is that the present appeal is time barred which has been filed after a lapse of more than three months, therefore, it may not be entertained and is liable to dismissed.
6. We have given due consideration to the valuable arguments of both sides as* the application for condonation of delay on the ground of suffering from illness, supported by medical certificates and affidavit of appellant was beyond control and there is no counter-affidavit from respondents' side to deny as to what was stated by the appellant with regard to his ailment. We consider it a sufficient cause for condonation of delay for not filing the appeal within the prescribed period of limitation. We are satisfied in our view by the judgment of the Hon'ble Supreme Court reported in 2001 SCM R 894 in the case of Muhammad Naris and another decided by their Lordships Muhammad Bashir Jehangiri and Hamid Ali Mirza, JJ.
7. The main contention of the learned counsel for the appellant is that the appellant was in the confirmed employment of the respondent and he could not be removed without adopting the proper procedure. Even the formal show-cause notice has not been issued which was not only violative of the principles of natural justice, as held by the "Supreme Court", to be considered as part and parcel of every statute, but was also the cardinal principle of Islamic jurisprudence. The Federal Shariat Court has also discussed the principle in several judgments and the decisions of the Federal Shariat Court have been upheld by the Shariah Appellate Bench of the Supreme Court and hence the said verdict has attained the status of legal provision.
8. We have considered the arguments of both sides and perused the record of the case.
9. The learned counsel for the .Appellant has not pressed the appeal on merit, but has urged that in the exactly identical Appeals No. 45(Q)/99, 1 & 2(Q)CS/2000 filed by Kazim Ali, Muhammad Ali and Syed Zahid Mumtaz the Federal Service Tribunal, Islamabad, vide its judgment dated 16.10.2000, modified the departmental punishment of major penalty of removal/compulsory retirement of the three appellants therein to reduction in time scale by three stages for a. Period of two years without cumulative effect; that the respondents-Auditor General of Pakistan and others had challenged the judgment dated 1610.2000 of the Federal Service Tribunal, Islamabad before the Hon'ble Supreme Court against the modified punishment of the appellants therein, but the Hon'ble Supreme Court vide its judgment dated 06.10.2005 in Civil Appeal Nos. 199, 200 and 201 of 2002 maintained the judgment dated 16.10.2000 of the Federal Service Tribunal, Islamabad. The learned counsel for the appellant herein requested that punishment of compulsory retirement be modified to some minor punishment.
10. We have compared this case with the case of appellants in Appeals No. 45(Q)/99, 1&2(K)CS/2000 and have found this case to be identical on facts and law, but in our humble view the appellants in those cases were higher than the grade of appellant in the present appeal, who was working on a lower post of Junior Clerk and if same treatment is given to the appellant of reduction in time scale by three stages, it would be a great injustice to him.
11. We, therefore, accept the appeal, set aside the impugned order passed against the appellant and modify the penalty of the appellant to that of withholding of two increments for a period of two years. Consequently, the respondents are directed to reinstate the appellant in service. The intervening period shall be treated as leave of the kind due to the appellant. The appeal is disposed of accordingly.
12. No order as to costs.
13. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of Service Tribunal.