' SHAH SAHIB, (MEMBER).--- The appellant had filed the instant appeal with the prayer that the impugned order dated 4-8-2006 whereby she had been dismissed from service may be set aside and she be reinstated in service with all back-benefits with direction to the respondent department to pay her salary from December 2005 to August 2006 and regularize her service in accordance with the N-W-F.P. Civil Servants (Amendment) Act, 2005.
2. The facts of the case as narrated in the memo of appeal briefly are that the appellant had been appointed L.H.V. Vide order dated 10-3-2004. She performed her duty with full devotion upto the satisfaction of her superiors. Due to the killer earthquack of 8th October, 2005, the appellant's brother and a sister had lost their lives while her father and mother had sustained serious injuries.
The appellant's father had also later on succumbed to injuries and died at the Hospital. The appellant due to the loss of her dear and near ones could not remain normal and had remained absent from duty for some days. The E.D.O. Called her explanation on 30-11-2005 and 25-4-2006 to which she submitted her reply, fully explaining the factual situation. Being a newly married woman, the tragic circumstances she faced, caused her birth of a pre-mature baby. Due to which she remained under treatment at C.M.H., Abbottabad. On 23-5-2006, the E.D.O. (Health) ordered her to remain attached to his office till the completion of Inquiry against her. The appellant reported for duty to the E.D.O's. Office on 25-5-2006. On 1-7-2006, the E.D.O. Health issued her a show-cause notice and thereafter terminated her from service vide order dated 2-4-2006. Feeling aggrieved with the impugned order, the appellant preferred an appeal to Departmental authority i,e, D.C.O., Mansehra. But, the same had been rejected on 26-12-2006. Hence, the appellant had filed the instant appeal on the following grounds on 11-6-2007:---
(a) That the appellant had been condemned unheard and no chance of defence had been provided to her;
(b) That no charge sheet/statement of allegations had been given to the appellant nor any inquiry conducted in the matter despite the fact that the EDO has mentioned in his order that the inquiry was in progress;
(c) That after the promulgation of Act of 23-7-2005, the appellant had become a regular civil servant and this Tribunal has got the jurisdiction to adjudicate upon the matter;
(d) That the absence of the appellant was not intentional but due to death of her father, mother and sister but this aspect of the situation was totally ignored by the EDO Health;
(e) That the termination order had been passed retrospectively which was against the verdict given by the Honourable Supreme Court of Pakistan.
3. Pre-admission notices had been issued to the respondents. They appeared through their representatives, filed their written reply, contested the appeal and denied the claim of the appellant.
4. Preliminary arguments heard and record perused.
5. The learned counsel for the appellant contended that the appellant had remained absent on both occasions due to look after of her father and due to the miscarriage of her baby. She had remained under-treatment at C.M.H. Hospital, Abbottabad. The main contention of the learned counsel for the appellant was that no proper procedure for terminating her services had been adopted in the appellant's case and she had been terminated from service retrospectively in an arbitrary manner which was against the law rules and principles of natural justice. Neither any charge had been framed nor had any statement of allegations been communicated to her.
Framing of charge was not only a formality but a mandatory requirement of law. To this end, he placed reliance on the apex Court's ruling reported in the case 2000 SCM R 1743. He further contended that the appellant's dismissal from service effective from a retrospective date had been illegal. In this regard, he referred to the apex Court's ruling reported in the case 1993 PLC (C.S.) 1755.
He concluded that the impugned order, being fanciful and bad in law had been liable to be set aside.
6. The learned A.-G.P. Opposed the contention of the learned counsel for the appellant and stated that the appellant had been appointed on contract basis. It had been clearly mentioned in her appointment letter that her services were liable to be terminated without any notice. Accordingly, the appellant being a contract employee, her services had been rightly terminated. She had remained absent from duty and the action taken against her was covered under the law and may not be interfered with at the appellate stage.
7. After listening to the parties, the Tribunal feels inclined to agree with the contentions advanced by the learned counsel for the appellant. The appellant, an affectee of the massive earthquake that devastated and wiped out the whole Balakot town and surrounding areas on 8th October, 2005 may not have been able to perform her duties as expected of a normal person under the ordinary course of circumstances. Similarly, the medical attention concerning gynecological ailment she purportedly received at the C.M.H. Abbottabad strengthens her case. She appears to have put in a request for leave in reply to explanation but the same had not been entertained. No inquiry had been held in her case nor had any charge been framed against her and she had been condemned unheard. Hence, under these circumstances the imposition of a major penalty of dismissal from service was not justified. The impugned order had been issued by the respondent department retrospectively albeit without following the proper inquiry procedure which is not tenable under the law. In the circumstances the appellant has made out a case for indulgence of the Tribunal.
Accordingly, the Tribunal accepts the appeal, sets aside the impugned order and directs the respondent department to consider reinstating the appellant into service within 2 months' time.
The intervening period and absence from duty onward December, 2005 shall be treated as extraordinary leave (leave without pay). The respondent department is at liberty to process her case for regularization, if she is otherwise eligible, of her services on the promulgation of the amendment to section 19 of the Civil Servants Act, 1973 with effect from 23rd July, 2005. The parties are left to bear their costs. File be consigned to the record after completion.