' SHAHID ANWAR BAJWA, J.---Facts of the petition are very simple. The petitioner joined employment of Sindh Workers' Welfare Board (SWWB) in 1999 as an Accounts Officer in BPS-16. In 2006 vide order dated 24-6-2006 the petitioner was sent on deputation to the Board of Intermediate and Secondary Education, Mirpurkhas (B.I.S.E.). On 12-6-2007 an Office Order was issued under the signatures of Secretary of B.I.S.E. Wherein it was stated that Chairman B.I.S.E. Has been pleased to absorb services of the petitioner as Assistant Accounts Officer in BS-17 with effect from 1-7-2006. Thereafter on 30-4-2008 petitioner requested for his promotion to BS-18. The promotion Committee did not recommend case of the petitioner. Thereafter on 25-9-2009 Governor of Sindh/Controlling Authority appointed an Inquiry Officer to conduct inquiry regarding absorption of the petitioner in B.I.S.E. Before the Inquiry Officer a statement was submitted in which it was stated by the petitioner that his case for appointment on deputation basis was sent by SWWB vide letter 27-1-2006 and he was ultimately absorbed in service. After report of the Inquiry Officer was submitted, Office Order dated 16-11-2009 was issued by B.I.S.E. Whereby the petitioner was ordered to be repatriated back to SWWB. The relevant part of the order dated 16-11-2009 reads as under:- "In pursuance of letter No, GS/10/(8)2/2004(SE-III)/86 dated 13-11-2009 issued by the Secretariat of Governor Sindh/ Controlling Authority, the NOC submitted by Mr. Zahid Ali Lakho for absorption of his services as Assistant Accounts Officer in B.I.S.E., Mirpurkhas has been proved fake and as such the process adopted for his absorption became illegal in the light of enquiry conducted vide Secretariat Notification of even number dated 12-9-2009. Accordingly, the absorption order issued in respect of Mr. Zahid Ali Lakho vide No,NISE/ESTT/ MPS/203 dated 12-6-2007 is hereby cancelled and as per directives of the Controlling Authority, Mr. Zahid Ali Lakho is being repatriated to his parent Department, i.e, Sindh Workers' Welfare Board (Education Section) Karachi in his original capacity as Accounts Officer BS-16 with immediate effect. Subsequently, all outstanding liabilities shall be cleared by him and submit clearance certificate at the earliest to the undersigned."
2. This petition has been filed by the petitioner to challenge and impugn order dated 16-11-2009 with the following prayer:- "(a) To declare that the petitioner's absorption in the Board as Assistant Accounts Officer in BPS-17 was lawful and the impugned order dated 16-11-2009 as passed by the Respondent No,2 is without notice and personal hearing and therefore is illegal, void ab initio, null and void and liable to be quashed/set aside and the petitioner be allowed to continue as Assistant Accounts Officer BPS-17 in the Board.
(b) Any other relief(s), which this honourbale Court may deems fit, just and proper may kindly be awarded to the petitioner in the light of foregoing submissions."
3. Comments were filed on behalf of SWWB as well as B.I.S.E. B.I.S.E. In their comments stated that petitioner produced letter dated 17-5-2007 (letter No, BM/SWCE/Admin/2(8)/1999/2015) stated to be signed by Secretary, Sindh Workers' Welfare Board. Letter stated as under:-- "Kindly refer to your letter No, B.I.S.E./ESTT/MPS/-177 dated 8-5-2007 on the captioned above.
' The undersigned; has no objection if the services of Mr. Zahid Ali Lakho (working on deputation) is absorbed in the Board of Intermediate and Secondary Education, Mirpurkhas as Assistant Account Officer."
' It was subsequently discovered that this letter was a forgery and therefore inquiry was ordered and it was as a consequence of that inquiry that letter dated 16-11-2009 was issued. SWWB also filed their comments. They specifically stated that no consent for absorption of the deputee, present petitioner, was given to the B.I.S.E. And that letter dated 17-5-2007 stated to be signed by Secretary SWWB was a forgery. It was also stated in the comments that a show-cause notice dated 1-2-2010 has been issued by SWWB to the petitioner calling upon him to show cause as to why action should not be taken against him under the Removal of Services (Special Powers) Sindh Ordinance, 2000 for misconduct of submission of forged atid fake letter. It was further stated in the comments of SWWB that the petitioner had been absorbed by B.I.S.E. And therefore he did no longer have lien on the post of Account Officer in SWWB. Therefore it was stated by SWWB that his taking back on the strength of SWWB might create administrative complications or may cause grievances to the other employees of the Board. Therefore, SWWB was not willing to take back the petitioner on its strength.
4. Learned counsel for the petitioner submitted that the petitioner has never submitted the alleged forged letter dated 17-5-2007 rind therefore no action could be taken against him for such a forgery. Learned counsel in this regard also referred to letter written by B.I.S.E. To SWWB on 8-5-2007 and pointed out that this letter was received by SWWB on 28-6-2007 and therefore SWWB could not have sent letter dated 17-5-2007. Second submission of the learned counsel was that his repatriation has taken place under the orders of the Secretary of B.I.S.E. And the petitioner being an Officer of BS-17, it was the Chairman B.I.S.E. Who is competent authority and therefore his repatriation was without lawful authority and was of no legal effect. Learned counsel relied upon Province of Punjab, through Secretary C&W Department and others v. Ibrar Younas Butt 2004 SCM R
67. Learned counsel also relied upon Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCM R 1814 to contend that once having been absorbed by B.I.S.E.
It was not available to B.I.S.E. To recall the order of absorption because, according to the learned counsel vested right had been created and decisive steps had been taken.
5. Mr. Adnan Karim, learned Additional Advocate General, submitted that only document available on record giving consent by SWWB, the parent department of the petitioner is letter dated 17-5- 2007 which letter has been admittedly proved to be fake and forged. Therefore, the absorption of the petitioner in B.I.S.E. Being without legal and valid consent of SWWB was without lawful authority and of no legal effect. However, learned A.A.-G. Submitted that the petitioner cannot be absorbed in SWWB, while at the same time the learned A.A.-G. Supported the order of repatriation.
6. We have considered the submissions made by the learned counsel and have also gone through the record as far as case law cited at the bar.
7. In Ibrar Younas Butt's case (supra), the facts were that respondent was employed by L.D.A. In BS- 17 as Assistant Engineer in 1986. On the orders of the then Chief Minister, he was posted in Highway Department on deputation vide order dated 23-1-1989. Thereafter in 1990 his services were regularized in the Highway Department and in this connection consent/permission was obtained from L.D.A. For permanent absorption. In 1998 order was issued for repatriation of the petitioner to the parent department. The Supreme Court observed as under:-- "After termination of his lien in the parent department how his services could have been repatriated that too without proper opportunity of hearing as certain vested rights had accrued in favour of respondent after permanent absorption on the direction of competent authority. The repatriation of respondent could not be directed in an arbitrary and capricious manner as no such unfettered powers have been conferred upon the Chief Secretary to pass such orders which are not in accordance with the relevant provisions of law and rules made thereunder. After a lapse of more than a decade the validity of initial appointment and subsequent absorption cannot be questioned save in accordance with law.
(7) The conclusion as arrived at by the Punjab Service Tribunal being well-based does not warrant any interference. As mentioned hereinabove the order of repatriation has been passed without affording proper opportunity of hearing to the respondent which resulted in serious miscarriage of justice. The petitioner may initiate action in this context subject to all legal exceptions after affording proper opportunity of hearing to the respondent and decision be made strictly in accordance with law and rules made thereunder."
8. In the present case, the petitioner has disowned letter dated 17-5-2007 on the basis of which letter B.I.S.E. Has regularized services of the petitioner. SWWB has stated this letter to be a forgery.
Thus, where SWWB says we have not issued this letter and even the petitioner says that this is not a letter issued by SWWB, the question would be on the basis of what document can anyone come to the conclusion that consent of SWWB, parent department of the petitioner, was obtained by B.I.S.E.
Before absorption of the petitioner in the service of B.I.S.E. It is B.I.S.E.'s case that they acted upon on the basis of letter dated 17-5-2007 which letter, it is now every one's case, is a forged document.
Therefore, the basis desideratum of the decision to absorb the petitioner in the employment of B.I.S.E. Has disappeared. In that view of the situation, it is difficult, nay impossible, to understand as to how absorption of the petitioner in the employment of B.I.S.E. Could be allowed to stand. The petitioner may or may not have been guilty of producing or procuring letter dated 17-5-2007, because that is a question which can be, should be and must be sorted out in separate proceedings, but the petitioner cannot be allowed to derive any benefit on the basis of letter, a document which by the contention of the petitioner's counsel himself is not a properly issued letter, to say the least about it. We therefore hold that petitioner had never been lawfully absorbed in the employment of B.I.S.E.
9. Contention of the learned counsel for the petitioner that it is the Chairman of B.I.S.E. Who is competent authority in respect of persons in employment of B.I.S.E. In BS-17 and above and that therefore, under the letter of the Secretary the petitioner could not have been repatriated, is without force. Since we have held above that the petitioner never became an employee of B.I.S.E. Therefore, - question of Chairman being competent authority in respect of employees in BS-17 and above of B.I.S.E. Is of no help to the petitioner because in order to take advantage of that contention, the petitioner had to first establish that he had become, in accordance with law, an employee of B.I.S.E.
And we have held above that the petitioner in law never became an employee of B.I.S.E.
10. Reliance by the learned counsel for the petitioner on Ibrar Younas Butt's case is again misconceived because firstly in Ibrar Younas Butt's case he had been absorbed in the Highway Department with the consent of L.D.A. Parent department and secondly the respondent in that case was repatriated without any show-cause-notice and without any inquiry being held against him as it was alleged that he had secured his absorption by using political influence. In the present case, it is available on record that show-cause-notice issued to the petitioner, petitioner replied to the show-cause-notice was thereafter inquiry was held, petitioner participated in inquiry and his statement was recorded and it is thereafter that Inquiry Officer submitted his report. Letter dated 16-11-2009 clearly states that decision had been taken in the light of inquiry conducted. Therefore on all these counts case of Ibrar Younus Butt, is clearly distinguishable from the case of the present petitioner.
11. Learned counsel for the petitioner also relied on Nazir Panhwar's case (supra) in which concept of locus poeinitentiae was discussed. The facts of the case were that on 8-11-1995, the petitioner was made Acting General Manager in a Sugar Mill and on 21-4-1996 he was posted Acting General Manager in another Sugar Mill in his own pay and scale. Thereafter he was posted in 1997 as Deputy Secretary on deputation in Chief Minister's Secretariat. Thereafter his services were placed at the disposal of Agricultural Department for his absorption against the post of Director (Admn.) in BS-19 in Sindh Seed Corporation. This was given effect to and he resumed the charge of Director Administration. However in 1999 his absorption was cancelled and he was repatriated. Such order was assailed by him before Service Tribunal. His appeal was dismissed. The matter was taken to the Supreme Court. It was held by the Supreme Court as under:- "The contention on behalf of the petitioner that the order, dated 24-11-1997 had been acted upon, therefore, a vested right had been conferred on the petitioner to continue on the post of Director(Administration) in Sindh Seed Corporation, in view of the principle of locus poenitentiae is misconceived as this principle can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made there under or a settled provision of law."
12. This case rather supports the case against the petitioner rather than the case for the petitioner.
Even otherwise since absorption of the petitioner has been, as held above, without any lawful authority, the petitioner cannot get benefit of an action which has been taken without any lawful authority.
13. Whereas the contention of the petitioner was quite in contradiction with each other, on the one hand he contended that he had been absorbed and on the other hand he contended that he had not procured or produced letter dated 17-5-2007 and therefore there was no consent for his absorption, contention of the learned A.A.-G. That petitioner though liable to be repatriated was not entitled to be taken back by SWWB is also without force. SWWB has been prompt and quick in issuing show-cause-notice to the petitioner but is delaying and dragging its feet in accepting back the petitioner on the pretex that the petitioner has been absorbed in B.I.S.E. If the petitioner had been absorbed in B.I.S.E. From +where did SWWB derive authority to issue show-cause-notice to the petitioner. It is settled law that it is only the employer who can take domestic disciplinary action against his employee and a stranger though he may resort to civil remedy or criminal action, cannot initiate domestic action against a person he claims is no longer his employee. Therefore, it is legal obligation of SWWB to take back the petitioner in its employment. After the petitioner had been taken back in employment, SWWB shall be at liberty to proceed against the petitioner on the basis of show-cause notice dated 1-2-2010 already issued to the petitioner. However it is made clear that while taking disciplinary action and in domestic action, SWWB shall in no way be influenced by contents of letter dated 16-11-2009 or proceedings of inquiry conducted by B.I.S.E.
' With the above observations, this petition is dismissed.