JUSTICE (RETD.) GHULAM NABI SOOMRO, CHAIRMAN - This is an appeal against Removal from Service of the appellant, who was appointed as Boiler Operator (BS-14) in 1992 by the Medical Superintendent, Peoples Medical College Hospital, Nawabshah (Respondent 3) and removed from service under Section 3(1 )(e) [wrongly mentioned as 3(e)] of The Removal from Service (Special Powers) Sindh Ordinance, 2000 (hereinafter to be referred to as the Ordinance) on 24.7.2006 by the Secretary, Department of Health (Respondent/) on the ground that his selection was wrong as he did not possess required certificate of three years' diploma at the relevant time.
2. The main contention raised in support of the appeal is that the appellant was appointed as a Boiler Operator on 3rd August, 1992 and that he having been appointed by the Competent Authority i.e. Medical Superintendent of Peoples Medical College Hospital, Nawabshah, his services were terminable only by the competent authority and none else. Learned counsel for the appellant has strongly attacked the impugned action of the respondent No. 2 (Secretary to the Government of Sindh Department of Health) on that score, urging that in view of appellant's long service of 14 years, the appellant could not have been dislodged and deprived of his livelihood for no fault on his part, by the government functionary who was not competent in law to remove the appellant from service. Reliance is placed upon the cases PLJ 2003 S.C. 511, 2006 4 SCMR678.
3. Respondent No. 1 has adopted the written statement filed by the respondent No. 2, who in his statement has stated that appointment of the appellant was on fake documents, which surprisingly is not the case of the department. There is no such allegation in the show-cause notice Annexure A/6, relevant portion whereof is reproduced herein below:--- "It is surfaced after conducting enquiry that at the time of your appointment (August, 1992) as Boiler Operator (BPS-14) you were not possessing prescribed qualification acquired' later on in June, 1994, without departmental permission. You also did B.Sc, degree, this tantamount to misconduct at your part."
4. From the above it is clear that the only charge against the appellant is that he obtained job of Boiler Operator while he was not having diploma certificate and that he did his B.Sc, without permission, In his very elaborate reply to the show-cause notice, the appellant has denied having done his B.Sc. As for achieving other degrees/certificates, there is department's on version that no disturbance was caused due to his studies which he pursued in evening time. All the certificates produced by the appellant at the time of interview and afterwards, after verification by the concerned institutions were found to be authenticated and genuine. The appellant in his reply has elaborated the circumstances in which he was selected by the committee. There is no allegation that the appointment of the appellant at the hands of the D.P.C, or the Appointing Authority was under any extraneous circumstances. From the reply which has gone un-controverted, it can be noticed that the appellant was probably found fittest person for the job.
5. The respondent No. 3 does not seem to be seriously contesting the case as appearing in his statement. He admits that appellant was selected by Departmental Selection Committee for appointment of Boiler Operator that he furnished his Diploma Certificate later to his appointment.
In same sequence it is stated that the appellant was doing his course study in evening shift which did not cause any disturbance in appellant's performance of duty.
6. Mr. S. Kamil Shah, learned A.A.G, appearing for the respondents argued that the appellant at the time of appointment was not qualified to be appointed as boiler operator, he having acquired the required qualification, of three years diploma course, after his appointment, He thus supported the impugned action of removal of the appellant from service.
7. We have heard the learned counsel for the parties as above and also perused the record including the written statement/comments of the respondents. We have also gone through the case-law produced before us in support of the appeal.
8. Section 3(1 )(e) of the Ordinance, empowers the Competent Authority to take impugned action or impose other penalties in the manner prescribed therein. The Competent authority as defined in Section 2(a) of the Ordinance means the Governor or any person authorized by him being not inferior in rank to the Appointing Authority. Vide Notification No. SOR-l(S&GAD)/3-2/Ordi-2GOO, dated 3rd May, 2001, issued under the above-said Section 2(a), the Competent Authority in the case of a person against whom an action is proposed to be taken, is the officer competent to appoint that person, There is no dispute that the appointing authority in the case of the appellant was the Respondent No. 3 (Medical Superintendent). Thus in view of the above-said notification the competent Authority to take action under Section 3(1 )(e) in the case of the appellant, was the Respondent No. 3 and not the Respondent No. 2 (Secretary Health), It can therefore be clearly spelt out that the respondent No. 2 was not competent to initiate proceedings against the appellant and remove him from service. Hence, the impugned order is found liable to be set aside on this legal score alone.
9. In case of Shah Nawaz, S.I. y. Inspector General of Police, Punjab (2007 PLC (C.S) 1237), the proceedings initiated and the impugned order passed by D.I.G.P, were set aside on the ground that in the case of the appellant, under the stated notification, Superintendent of Police and not the D.I.G.P, was the Competent Authority.
The action of- awarding penalty by D.I.G.P., declared as illegal on that score alone.
In case of Saifullah Cheema v. Chairman, Board of Governors, Aitchison College, Lahore & others (2006 PLC (C.S) 862), it has been observed that Principal of College having no power to remove or .Dismiss appellant from service, his action against appellant suffered from lack of jurisdiction.
In case of Ahmed Nawaz v. Superintendent Central Jail, Rawalpindi & another (2007 PLC (C.S) 132),, it was observed that in the said case, as per Policy letter, produced by appellant and admitted . By authorities, Superintendent Central Jail was designated authority for initiating proceedings under R.S.O., 2000 against officials in BS-1 to BS-5, whereas appellant being a Head Warden in BS-7, Initiation of disciplinary proceedings against appellant by the Superintendent was contrary to the said policy letter as he was not the Authority in case of appellant to initiate proceedings or to punish him.
In case of Ghulam Nabi Soomro v. Chairman WAPDA and others (2007 PLC (C.S.) 550), it has been observed that appellant was appointed with the approval of General Manager of the establishment, who was competent Authority in the case of appellant, but show-cause notice and impugned order of dismissal from service having been issued and passed by Chief Engineer who was not competent authority in case of appellant, the impugned order passed by an incompetent officer, was declared as illegal and without jurisdiction.
10. One feels dismayed and disgusted while dealing with a like case, for the reasons, firstly that the appellant after serving the department satisfactorily, there being nothing on record against the appellant relating to the performance of his duty, was after long period of service of 14 years, asked to quit, on the ground that at the relevant time of appointment, he did not possess the required qualification i.e. a certificate of diploma in addition to his being a matriculate. What a way of running administration of a Government department, and dispensing of justice to subordinates where much security of service is stated to be available. We are, here, reminded of the Hon.
Supreme Court judgment in the case of Province of Punjab, through Secretary Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678) having authoritatively ruled that instead of taking action against such employee action be taken against appointing authority for committing misconduct. We find that there is not a word said in this case, against the appointing authority.
11. Record reveals that there was one M, Saleem who was not happy with the appointment of the appellant so he used to make complaints against the appellant to different quarters and ultimately filed a case before the Court of learned Special Judge Anti-Corruption, Sukkur in which the appellant was acquitted.
12. Having considered the circumstances leading to the appointment of the appellant, we feel that the D.P.C, probably found the appellant as most suitable person for the job of Boiler Operator with his qualification of Matric and his experience shown in the two experience certificates (filed at the time of applying for the said post and later found genuine upon verification) and his performance in the interview. The appellant is admittedly stated to have filed the said diploma course certificate before 1994. To dislodge him after his satisfactory service (since nothing has been alleged in regard to performance of his service obligations) for about 14 years, for no fault of the appellant, would be extremely unjust action negating, substantial justice. Secondly, question would arise if the appellant was not qualified for the job/post, why was he called for interview at all. Thirdly, why was he not put at halt or questioned, when he produced the Diploma Course Certificate in 1994. Next question that agitates our mind is that why should a candidate appearing for a lower grade post (BS 14) like the appellant, not presume, keeping in view his performance and experience in the interview, that requirement of Diploma course certificate, was dispensed with by the D.P.C, In any case there does not appear to be any fault on the part of the appellant. We may add that holding the appellant at fault from any angle, would be unjust and unfair to the appellant.
13. In view of the above, the appeal is allowed and the impugned order dated 24th July, 2006 and Appellate Order dated 5.9.2007 are hereby set aside.
14. Further contention of the appellant relating to award of back benefits, based on his statement that he was never employed gainfully anywhere, and same having gone unrebutted by the other side, he is ordered to be paid all back benefits from the date of his removal from service. The learned counsel for the appellant submits that an employee/civil servant, upon reinstatement, is asked by the department, to file an affidavit to the effect that he was not gainfully employed any where for the period he remained out of service. The department, in this view of the matter, if deemed necessary, may obtain such affidavit from the appellant for its satisfaction. No order as to costs.