' MUHAMMAD AYUB KHAN (MEMBER).--- Learned counsel for the appellant and the respondents have been heard and record perused.
2. Facts of the appeal, briefly stated, are that the appellant while posted as Assistant Accounts Officer (Current Charge) was compulsorily retired from service under the impugned order, dated 26-7-1999 vide Annexure "A", page 13 of the appeal file, pursuant to the recommendation of the Authorized Officer. Feeling aggrieved therefrom, he filed a departmental appeal on 21-8-1999 vide Annexure "E", pages 29 to 47, which remained unresponded and, after waiting the statutory period, he filed the present service appeal under section 4 of the Service Tribunals Act, 1973, before this Tribunal on 11-12-1999. Both the departmental appeal and the service appeal are well within time and hence the appellant stands cleared on the point of limitation.
Facts of the appeal.
3. It was stated at the bar on behalf of the appellant that he was appointed as Auditor in the office of the Accountant-General Sindh, Karachi, on 26-1-1979, promoted as Senior Auditor (B-11) on 1-7- 1983 and throughout his 20 years continuous service he rendered meritorious services and during this period he was never either censured or warned and his annual Annual Confidential Reports were also clean and without any adverse remarks recorded therein, having good reputation for honesty and integrity but his bad luck was that he happened to be the President of Class-III Employees Association (Civil Servants) and in that capacity was victimized by the respondent- administration and that while serving the cause of the said Association in the capacity of its President he was served with a show-cause notice dated 8th May, 1998, by one Mr. Irshad Ahmed Kaleemi, Deputy Accountant General (Senior), Office of the Accountant-General Sindh, Karachi, on the allegation that the appellant had attended: "Forum of daily Khabrain"
' Copy Annexure "J", page 72, annexed to the parawise comments, wherein he had criticized the policy of the Department etc. It is further alleged that the Deputy Accountant-General (Senior), respondent No,4, a B-18 officer, was incompetent to act as Authorized Officer for the reason that in the case of the appellant an officer of B-19 was eligible to perform function as Authorized Officer instead of B-18 Officer and in this respect reliance was placed on a Notification No,S.R.O.429(I)/98, dated 30th April, 1998 issued by the Government of Pakistan, Establishment Division, Islamabad, vide copy available at page 21, Annexure "C" of the appeal filed, which inter alia provides that the Authorized Officer for the: "Government servants holding posts in basic pay scale 3 to 15 or equivalent" ' shall be: "an officer of the department or officer not below BS-19 designated by the authority specified in column (3)." i,e, the authority, shall act as Authorized Officer as per column (4).
4. The respondents have filed parawise comments and have taken exception to the averments made in the appeal. It was also stated before us on behalf of the respondents that at the relevant time a Grade-19 officer was not available and posted in the office of the Accountant-General Sindh, Karachi.
5. A perusal of the record also indicates that formal enquiry has not been conducted in the proceedings launched/conducted against the appellant under the Government Servants (Efficiency and Discipline) Rules, 1973. The charge against the appellant in that he was working prejudicially against senior officers of the respondent organization. As the appellant was the President of Class-III Government Servants/ Employees of the respondent Organization, therefore, he was advancing cause of the low paid employees of the Organization and the question for consideration now arises is whether he was working for their interest in a lawful and legal manner or he was mala fide and was misusing his position as President of the said Association and has wrongly criticized the officers. These facts are heavily linked with recording of evidence and in which the appellant should have been associated and given an opportunity of cross-examination of the witnesses appearing against him. No doubt the case staged against the appellant does not fall under rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1973 whereunder the enquiry procedure can be dispensed with. In the instant case conduct of a detailed enquiry was a must against the appellant to probe whether the remarks, if any, passed by the appellant against the Administration were justified or mala fide thereby intentionally meant to lower the dignity and honour or prestige of the senior officers of the respondent-Organization. In normal course of dealings and in, order to prove a charge the Administration is required to appoint in. Ekuiry Officer by the Authorized Officer in which all the witnesses are examined on oath with an opportunity of cross-examination afforded to a delinquent officer/official so that chaff is separated from grain.
These mandatory provisions of the E&D Rules were not complied with/ adhered to.
6. We have carefully gone through the statement (in urdu) of the appellant, pasted under para.13, page 5 , of the memo. Of appeal, which does not contain any objectionable material/contents and rather the remarks are extremely laudable being in the interest and amelioration of the employees of the respondent-Organization. In fact, the facilities which are available in other departments/Provinces but are not available in the respondent-Department have been agitated by the appellant. Similarly we have also gone through the statement of the appellant attributed to him in daily Khabrain vide Annexure "J", page 72 annexed to the (sic) which also does not contain any objectionable material/ remarks. As a President of the Association he was legally supposed to defend cause of the members of the association as well as better working condition of the Department, inclusive of the facilities such as residential accommodations, quota for deceased employees children etc. Which are available in almost all the other departments.
7. The learned counsel for the appellant also placed reliance on 1983 PLC (C.S.) 425 and stated that the appellant was not served upon a second show-cause notice. As no formal enquiry was conducted against the appellant, therefore, issuance of a second show-cause notice by the authority was immaterial.
8. It was stated at the bar on behalf of the respondents that Grade-19 officer was not available during the relevant time, therefore, a Grade-18 officer was appointed as Authorized Officer.
However, a Grade-19 officer was made available in the respondent-Organization in July, 1999, while proceedings were initiated in May, 1998.
9. The learned counsel for the respondents placed reliance on this Tribunal's judgment contained in 1999 PLC (C.S.) FST 849 of which one of us (Muhammad Ayub Khan) was its author but the facts of this judgment are not relevant to the facts of the present appeal for the reason that, the appellant in that case was transferred from Peshawar to Karachi but he refused to honour the transfer order and accordingly the following remarks were made in the said judgment:-- "(a) "Duty of Administration.--- First and foremost duty of Administration was to maintain discipline in its organization for providing a congenial and peaceful atmosphere to all its members- Prerogative of Administration to maintain office discipline in the public interest, none could be allowed to work beyond his sphere of activity-Noble and sublime purpose of Administration is to utilize services of all concerned in the best interest of the people and the country---Loose ,Administration would amount to anarchy which was fatal to foundation of "sacred land" which, in no case, was tolerable-Maintenance of office discipline in all walks of activities had to be maintained otherwise law of jungle would prevail."
(b) Posting and transfer.--- Principles of-Posting and transfer of civil servants was a right of Administration for which detailed rules and instructions had been framed and none had a vested right for his posting to a particular post or station---Discretion of administration to do needful, judiciously and in larger interest of cadre and all incumbents working therein---Administration could do all possible legal activities strictly in public interest keeping in view safeguards and protection of right of subordinates."
' It appears that there is a lot of difference between the above cited case and the case of the present appellant.
10. As- a sequel to the aforesaid discussion this appeal succeeds, is accepted and the impugned order of compulsory retirement of the appellant is hereby set aside and he is ordered to be reinstated with all back benefits having been meted out totally unwarranted and illegal treatment not falling within the four corners of law. It was the legal and moral duty of the Administration to have conducted a detailed enquiry to find out what type of misconduct the appellant had committed for the obvious reason that he was acting as a representative of the Association in the capacity of its President and we are of the considered view that he did not trespass the limits of law whereas the respondent-Organization has jeopardized his rights by kicking him out from the service by way of compulsory retirement which is a major penalty without any legal justification. As already stated, the appellant shall be reinstated in service with all back benefits as early as possible but in no case later than two months failing which legal action will be taken against the defaulters.
11. Parties are left to bear their own cost.
12. A copy of this judgment shall, however, be mailed to the appellant and the respondents, besides others, as required under rule 21(1) of the Service Tribunals (Procedure) Rules, 1974.