Sayed Mehar Hussain Shah, Member.--The appellant through this appeal has challenged the impugned order of her termination from service dated 02.03.2007 under Section 6 read with Section-11 of the Civil Servants Act, 1973. Against the said termination, the appellant preferred an appeal on 27.03.2007, which having remained un-responded, present appeal has been filed before the Tribunal on 09.07.2007.
2. Brief facts of the case, as disclosed in the memo of appeal, are that the appellant while serving as Assistant Professor (Maths) andposted at F. G. Degree College Hyderabad Cantt; had applied for NOC to visit Australia and applied for Ex-Pakistan Leave, which was sanctioned on 24.02.2006 from 15.02.2006 to 14.04.2006. While the appellant staying in Australia, applied for extension of leave on 10.07.2006 to the respondent. She was served with letter of explanation on 22.08.2006 on the ground that Ex-Pakistan Leave for 18 days from 16.05.2006 to 22.06.2006 had been under process and the appellant was required to - report for duty in College on 16.08.2006, but she failed to report for duty.
That on 30.08.2006 the appellant submitted her reply to the said explanation letter stating that she was pregnant and was due for delivery. The delivery took place on 10.08.2006 and, therefore, she requested for grant of maternity leave. The appellant, thereafter, sent another application on 02.10.2006 for grant of Ex-Pakistan- Leave to undertake higher education and the said project was stated to be of 1(1/2) years starting from 16.09.2006. The respondent on 13.10.2006 sent letter to the appellant, asking her to join duty as maternity leave had expired on 08.09.2006, informing her further that in case of her failure to join duty, disciplinary action shall be initiated against her.
Appellant on 12.10.2006 was served with letter showing her absent from duty since 03.06.2006. That the Respondent No. 2 on 02.03.2007 finally terminated the appellant from service.
3. Learned counsel for the appellant argued that termination during probation period due to allegations of misconduct of - having remained absent amounts to removal from service, as such, departmental action was required to have been taken under the Removal from Service (Special Powers) Ordinance, 2000. That termination order was passed without issuing letter of explanation and show cause notice by the competent authority. That the appellant had completed her probation period on 02.03.2006 and had got permanent footing in the department and Section-11 of the Civil Servants Act, 1973 was not applicable. That termination has been awarded as penalty for misconduct for which departmental action was imperative and the penalty of termination is not a tabulated punishment. That the appellant was not heard in person before paging, the order terminating her service. It was prayed that the appeal be allowed.
4. Learned counsel for the respondents mainly relied on the comments, filed on behalf of the respondents, wherein it was stated that the action was taken against the appellant on the recommendation of the Principal of college, therefore, she was issued absence notice on 23.11.2006 and on her failure to join duty, disciplinary action was recommended to Ministry of Defence by the Director General, Federal Government Educational Institutions. She being on probation could not satisfy the competent authority about her unlawful absence, therefore, keeping in view the documentary evidence, the competent authority took exparte decision against her. That appellant had adopted casual attitude and her conduct was not even appreciable. It was argued that the appellant had to face the consequences in the light of judgment reported in 1995 PLC (CS) 359, wherein it is observed by the Federal Service Tribunal that, "Every civil servant on initial appointment was placed on probationary period as specified under Rules and intention was that civil servant had to prove his suitability for retention in service by his conduct and also by his efficiency and that period was deemed as trial period--In case a civil servant would not bother to improve himself during initial probationary period, he would have to face consequences according to terms and conditions of his service--". He; therefore prayed that the appeal be dismissed with costs.
5. We have heard the arguments of both sides and have also carefully perused the material placed on record.
6. We find that the appellant has been terminated from service, which is not a tabulated punishment under the Removal from Service (Special Powers) Ordinance, 2000. She had been terminated from service on the allegation of having remained absent from duty. We find that serious allegations of remaining absent from duty were levelled against the appellant in the letter dated 13.10.2006, which were required to have been proved by means of a regular departmental inquiry, which is missing in the present case. It is by now a well settled principle of law that in case of awarding major penalty, a. proper inquiry is to be conducted in accordance with law wherein a delinquent officer is to be provided an opportunity of defence and personal hearing after issuing show cause notice, obtaining his/her reply whereof and if charges are proved in regular inquiry, thereafter, he/she is to be penalized. Serious allegations have been leveled in the notice, issued to appellant, regular inquiry was required to have been conducted which has not been done, rendering impugned order, as illegal. We rely on 2004 PLC (CS) 312, PLD 2003 Supreme Court 187, 2000 SCMR 1030, 2004 PLC (CS) 856 and 1993 SCMR 603 on the point of holding inquiry in case of major penalty.
7. In view of the above discussion, the impugned order dated 02.03.2007 imposing major penalty of termination from service upon the appellant is set-aside. The appellant is ordered to be reinstated in service. However, the respondent department is directed to initiate and hold denovo departmental proceedings against the appellant by providing full chance to the appellant to cross examine the witnesses and to defend herself properly. Such proceedings shall be initiated and completed within a period of 120 days from the date of receipt of a copy of this judgment. The question of back benefits shall depend upon the outcome of such fresh proceedings. Appellant is directed to fully participate in the inquiry, proceedings. No order as to costs.
8. Parties be informed accordingly.