1. MUSHTAK ALI KAZI (CHAIRMAN). -This service appeal has been preferred under section 6 of the Sind Service Tribunals Act, 1973, under the following circumstances.
2. The appellant a non-Matriculate and non-qualified candidate was appointed by Collector of Karachi, in his capacity as Director of Settlement, Survey and Land Records, as a temporary Junior Surveyor in the City Survey Office by an order dated 23rd November, 1954:One of the conditions of the appointment was that the post being temporary could be terminated at any time. The appellant however continued in that post for a period of 18 (eighteen) years. On 12th September 196S the appellant was suspended as a case had been registered by the Police against him for offences under sections 420, 468, P. P. C. And 5 (II), Prevention of Corruption Act, 1947. The appellant continued to remain under suspension for nearly three years as the Police took a very long time to complete the investigation. A circular was issued by the Chief Secretary, Government of West Pakistan depreciating the practice of prolonged suspension of Government servants. The Commissioner Karachi called for a list of civil servants under suspension and directed re- instatement of such Government servants who had remained under suspension for indefinite period including the present appellant. The Deputy Commissioner Karachi did not consider the appellant to be a fit person for re-instatement. He secondly by an order dated 27th May, 1969 terminated the services of the appellant on the ground of his being involved in serious offences of corruption etc. The appellant feeling aggrieved preferred a suit for declaration and injunction in the Court of 3rd Civil Judge First Class, Karachi. The Board of Revenue, West Pakistan accordingly advised the Deputy Commissioner Karachi to withdraw the said order of termination. The then Deputy Commissioner Karachi passed fresh orders dated 3rd December, 1969 withdrawing the order of termination for reasons of alleged corruption etc. But instead of re-instating the appellant directed that he would continue to remain under suspension. By another order dated 6th November, 1971 the services of the appellant were terminated with effect from 20th November, 1971 because of the abolition of five temporary posts of Junior Surveyors in the year 1968-69.
3. The civil suit filed by the appellant was transferred to the Court of V1th Additional District Judge Karachi. Meanwhile Sind Service Tribunals Act, 1973, was promulgated and under section 6 of' the Act, suits regarding matters within the jurisdiction or a Tribunal pending in any Court immediately before the commencement of the law extending clause (2) of the Article 212 of the Constitution to a Tribunal, stood abated and the party to such suit could prefer an appeal to the Service Tribunal.
4. The civil suit was accordingly dismissed as having abated by an order dated 28th April, 1974. The appellant then preferred an appeal before the Service Tribunal on 20th June, 1974, The Service Tribunal, however, dismissed the appeal on the ground that the Civil It was not pending Immediately before the extension of Article 212 (2) to this Tribunal, on 6th May, 1974, the orders of abatement by the Additional District Judge having been passed on 20th April, 1974. The appellant made a petition for Leave to appeal before the Supreme Court. The Supreme Court after granting leave decided the appeal by an order dated 29th September, 1980 allowing the appeal and setting aside the impugned order of this Tribunal dated 28th October, 1976. It was observed by the Supreme Court, relying on the authority of A. G. West Pakistan v. Mr. Shabir Ahmed and others , that though the civil suit had been dismissed as having abated the proceedings must be deemed to have been pending till the period of limitation for filing an appeal in the High Court bad expired.
5. This period being 60 days under Article 156 of the Limitation Act. The appeal before the Tribunal under section 6 of the Sind Service Tribunals Act, 1973, having been preferred within the period of limitation was therefore competent. The order of dismissal was accordingly set aside, and the case was remanded by the Supreme Court to this Tribunal for a fresh decision on merits.
6. It has been contended by the learned counsel on behalf of the appellant that the appellant had been initially suspended because of the registration of forgery and corruption case against him and he continued to remain under suspension till the passing of the final order dated 6th November, 1971, terminating his service due to abolition of the temporary posts against which he was working. Mr. Baig has then pointed out that even at the time of the so-called termination of service due to retrenchment, six junior surveyors who were junior to the appellant continued to remain in service and were retained. The names of the six Junior Surveyors have been mentioned in para. 9 of the memo. Of appeal. That the principle of retrenchment being, that retrenchment be made from the bottom, the junior most person in the cadre should have been retrenched first and if this principle had been followed the service of the appellant would have remained unaffected by so-called abolition of the posts.
7. In reply it has been stated in the parawise objection filed by the respondents, that the appellant was a non-Matriculate and non-qualified Surveyor while the persons junior to the appellant retained in service were either Matriculates or qualified Surveyors and Diploma holders. That the appellant being temporary could not claim any vested right to be retained in preference to the qualified persons.
8. It has been contended by the learned counsel for the appellant that the appellant was appointed to the post of Junior Surveyor in the year 1954 and he had continued to remain in the said post for 18 years. That the post not being for any fixed duration, the appointment of the appellant though against a temporary post was for indefinite period. The appellant was, therefore, entitled to an opportunity to show-cause against the termination of his service specially when it was not a termination simpliciter but on account of allegations of forgery and corruption and a bad record.
9. The respondents have admitted in the -objections filed that not only the appellant had a bad service record but be was also involved in criminal case of forgery and his services were1 accordingly terminated as there was unimpeachable evidence connecting him with heinous crime.
10. Regarding the first contention it is an admitted position that three posts of Junior Surveyors had been abolished from 1st June, 1970 while two posts of Junior Surveyors had ceased to exist from the year 1969. That there were in all five posts of Junior Surveyors which were abolished but the retrenchment would not have ordinarily affected the appellant but for his bad record of service.
11. Under the Civil Services Rules subsequently incorporated in section 11(2) of the Sind Civil Servants Act, 1973, 'where on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of the civil servants are required to be terminated, the persons whose services are terminated, shall ordinarily be the one who is the most junior in such cadre or grade". A similar case of retrenchment of Clerks of Deputy Commissioner's office is reported in PLD 1955 Pb. (Rev.)
29. In that case eleven temporary posts of Junior Clerks were abolished as a result of financial stringency and the Deputy Commissioner proceeded to make a selection of the staff to be retrenched from the seniority list and directed the removal of the for petitioners either on the strength of their bad record or want of qualifications. Held, that as these for employees were not the junior most in the seniority list, and their retrenchment was admittedly based on their bad record, the proper procedure prescribed by law and rules regarding removal had to be followed.
12. Admittedly the appellant had been removed from service on account of his bad service record. His case would be governed by the Constitution of 1962 under the Constitution the safeguards provided under section 240 (3) of Government of India Act, 1935, in respect of permanent or temporary service of indefinite duration had been continued under Article 177 in the following words :- "A person who is a member of an All-Pakistan Service or of the civil service of the Centre or of a Province, or he holds civil post in connection with the affairs of the Centre or of a Province, shall not be dismissed or removed from service, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him,"
13. It is true that under the terms and conditions of service, the appellant could be removed without notice but it had been held that such condition being against the Constitutional safeguards is void and unenforceable. In the case of Riaz Ali Khan v. Pakistan , it was held that the show-cause notice was necessary even In the case of the removal of temporary servants. That the provisions of show- cause notice are mandatory and cannot be bartered away or contracted out. That if there was a contract taken from an employee that even in the case of dismissal or removal no show-cause would be necessary such a contract would be illegal and void ; because there is no provision subjecting the Constitutional safeguards to a contract to the contrary. The provisions about show- cause notice in the Constitution is mandatory and its effect cannot be overridden either by any contract or rules to the contrary. In the case of Muhammad Azhar v. Commissioner Karachi , Captain Muhammad Azhar was a temporary employee holding an appointment indefinite in duration. The Commissioner found him guilty of misconduct and passed order of removal adding that the removal be treated as discharged on 15 days notice in accordance with clause-1 of his appointment order. The Supreme Court observed that removal based on a finding of a misconduct carries with it a stigma, and is quite different in its effect, from a simple order of termination of service. That an order of removal passed, in which illegality was committed in disciplinary proceedings, could not be cured by a mention of the terms of the civil servant concerned.
14. In the case of Abdul Majeed Shaikh , Abdul Majeed Shaikh was the Senior Scientific Officer.
15. According to the terms and conditions of his appointment, the appointment was temporary but may continue for indefinite period. The second condition was that his services were liable to termination without notice. In pursuance of the second condition, his services were terminated.
16. When questioned in the High Court the petition was dismissed on the ground that such2 3 4 Constitutional protection was not available to him as he was a temporary servant. On appeal the Supreme Court reversed the decision of the High Court. It was held that even in the case of temporary posts of indefinite duration a show-cause notice was necessary and the condition waiving such notice was void being against the Constitutional guarantee.
17. Thus the case of the appellant was in fact a case of termination of service due to misconduct and bad record and not one of discharge due to abolition of the temporary posts against which he was working. In case of retrenchment the persons most junior in the cadre or grad would ordinarily be affected. But the appellant not being the Junto most, his retrenchment was admittedly based on his bad record and the proper procedure prescribed for his removal, had to be followed. Although the terms and conditions of his service provided termination without notice, still on account of Constitutional safeguards his temporar service of permanent duration could not be terminated without a proper show-cause notice.
18. Mr. Hasan Akbar, A. A.-G. Has taken a legal plea that the appeal is not maintainable because a departmental appeal had not been preferred and the appeal is barred under section 4 of the Sind Service Tribunals Act,01973. It has however been rightly pointed out by the learned counsel for the appellant, that such a bar provided under section 4 would apply to the service appeals filed under section 4 only. That this appeal had been filed under section 6 the basis for the appeal being a civil suit which had abated due to extending of Article 212 (2) of the Constitution to the Service Tribunal.
19. That party to the suit, on its abatement could file an appeal before the Tribunal in respect of any matter in issue in such suit The question of any departmental appeal at that stage did not arise under section 6 of the Sind Service Tribunals Act, 1973. Mr. Hasan Akbar has then argued that since at the time of abolition of five posts the appellant was under suspension, the question of discharge of any person junior to him in that cadre did not arise. The appellant had however, continued under suspension even long after the abolition of the five posts and he was being paid the subsistence allowance. In case he had been removed due to abolition of posts in 1969 then how could he be continued under suspension and paid a portion of his salary upto 6th November, 1971, Mr. Hassan Akbar subsequently argued that in case of retrenchment a person who was unqualified or had bad record could be retrenched and preference could be given to qualified persons with better record in spite of the fact that they were junior in the seniority list. In support of this contention Mr. Hassan Akbar could not cite an authority.
20. In the result we are of the view that since the appellant was removed on account of his bad record of service, he could not be deprived of an opportunity to show cause against the said order. We accordingly allow the appeal and set aside the order of removal passed against the appellant, leaving it open to the "Authority" to proceed against the appellant after issue of a fresh show-cause notice incorporating the allegations against him and to pass fresh orders under the relevant rules.
21. No order is made as to costs under the circumstances of the case. PLD 1963 SC 610 PLD 1967 Lah. 491 PLD 1966 SC 253 PLD 1965 SC 208 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.