SYED MEHAR HUSSAIN SHAH, MEMBER - This appeal has been filed against order dated 4.1.2007 allegedly received by the appellant on 8.1.2007 whereby he was imposed major punishment of dismissal from service against which departmental appeal was preferred on 19.1.2007. The same remained undecided giving rise to this appeal.
2. Brief facts of this case are that the appellant joined the service as Assistant Manager in November, 2004 in Pakistan Ordnance Factories (P.O.F.), Ministry of , Defence. As part of the terms and conditions of his service, he submitted a surety bond of Rs. 50,000/- alongwith undertaking that he would serve the respondent-department for at least five years if required by P.O.F, failing which he would refund all the amount spent on his training plaints interest and penalty thereof. The bond to this effect was executed. Appellant serve the factory till 4/2006. According to him, his mother was hospitalized after suffering a stroke which compelled him to take leave. The authority granted him leave for 15 days. The appellant, however, could not resume his duty and applied for extension in leave due to same reason. The request was not entertained. The petitioner then tender his resignation on 13.4.2006 due to the continued ailment of his mother. As it seems, the petitioner was proceeded against departmentally under the provisions of Removal from Service (Special Power) Ordinance, 2000. He was served with a show-cause notice dated 12.9.2006 alleging that the appellant had failed to resume his duties despite several call letters and also failed to pay an amount of Rs. 50,000/- in terms of bond earnest money, in his reply to the show-cause notice the appellant denied wilful absence from duty by explaining the reasons which prevented him from resuming his duties and which had ultimately compelled him to take, perhaps the most critical decision of his life i.e. That of tendering his resignation from the job. He had, while submitting his resignation on 13.4.2006, given the undertaking that he was prepared to fulfill the condition about making the payment of Rs. 50,000/- mentioned in the security bond. He also requested for personal hearing. The appellant submitted another representation addressed to the Chairman, P.O.F. Board. He was, however, dismissed from service vide order dated 4.1.2007. His departmental representation against the dismissal order having remained undecided, the appellant has filed the instant service appeal.
3. During the hearing, learned counsel for the appellant contended that the impugned order is illegal on several counts which, inter alia, included (i) the punishment order was passed retrospectively and therefore was not tenable in the eyes of law; (ii) the terms and conditions of service did not bar submission of resignation and most importantly, (i.e) the Chairman of the Board had in principle consented to the acceptance of resignation of the appellant and had recommended to the competent authority to take a lenient view subject to payment of bond money of Rs. 50,000/- on which however no decision was taken rather he was proceeded against.
Learned counsel stated at the bar that "the appellant undertakes not to claim pecuniary benefits or the return of bond money which he had already deposited provided the stigma of dismissal from service is removed by allowing this appeal". Moreso, on considering the fact that in case otherwise a well-educated citizen was to be rendered crippled for whole of his life without respectful means of livelihood;
4. Learned counsel for the respondents, on the other hand, admitted that the Chairman of the P.O.F.
Board had recommended that lenient view may be taken which fact also find place in para-18 of the written comments/objections. He also did not deny that appellant had deposited Rs. 50,000/- within terms of bond compensating the employer. He also did not deny that the appellant had tendered resignation much before the departmental action was initiated which remained pending despite the recommendation of the Chairman of the Board thereon that the same be accepted.
5. We have given due consideration to the above oral submission by learned counsel appearing for the parties and have also carefully perused the record. The appellant seems to have readily deposited Rs. 50,000/- apparently to comply with the terms and conditions beneficial to the department. The Federal Counsel, on the basis of recommendation of the Chairman already available on record stated that he will have no objection if the impugned punishment is modified from Dismissal to Removal from Service. When asked whether any disciplinary proceedings were pending against the appellant, the reply of the Federal Counsel was in negative.
6. It is also not denied that the letter of resignation tender by the appellant in April, 2006 had remained without any decision and in the meantime disciplinary proceedings were initiated against him. The record reveals that respondent-department had sent the following recommendations to the Ministry; "Chairman of the Board taking a lenient view, has very kindly decided to impose the penalty of removal from service subject to the payment of bond money i.e. Rs. 50,000/-".
A plain reading of the recommendation would show that the Chairman of the Board in principle "decided to impose the penalty of removal from service instead of dismissal from service" by taking a lenient view subject to the condition that the appellant paid the survey bond money which he has already paid, in or opinion, the decision of the Chairman though not final, yet seems to be fair, moreso in the peculiar circumstances of the case nothing was brought to or notice that the act of the appellant in tendering resignation was with ulterior motive, it seems that the circumstances about the ailment of this mother forced him to tender the resignation and give up the available source of his livelihood. Perhaps the motivating factor behind the act of leniency shown by the Chairman of the Board appears to be that he was conscious of the fact that the appellant was an educated young man with many years ahead. He had no malicious intention in quitting his service, it was therefore rightly opined that instead of dispensing the appellant service with stinking stigma of dismissal he be removed from service subject to forfeiture of amount of amount of Rs. 50,000/- of the penalty which he has already paid.
7. Even otherwise, a simple reading of clause 2(1) of the letter of appointment dated 4.11.2004 would reveal that the appellant was at liberty to leave the service after serving the department for a minimum period of five years. However, in case he wanted to leave earlier, he was required to fulfill the conditions mentioned in the bond. Admittedly, the appellant had applied for extension of leave on account of personal reasons and it is a matter of record that the appellant brought the circumstances to the notice of the Managing Director and was advised "to resign" therefore appellant submits his resignation on 13.4.2006 through proper channel. This fact has been mentioned in paras-3 & 4 of the representation made by the appellant under Section 10 of Removal from Service (Special Powers) Ordinance, 2000 and which fact had not been denied by the respondents in their written objections, in fact the respondents, had stated that , para-5 of their objections that "Admitted, but he was supposed to remain present after tendering resignation from service till its acceptance or paid the penalty of Rs. 50,000/-." Admittedly, the appellant had paid Rs. 50,000/- and the appellant had tried to obey the departmental instructions.
8. It would also worthwhile to mention here even the departmental proceedings against the appellant appear to be incurable because neither final show-cause notice was issued to the appellant nor was he given an opportunity for personal hearing as requested by him. Useful reference in this connection may be made to cases reported as PLD 1977 SC 182, 1997 PLC (CS) 424 and PLD 1981 SC 179. In case reported 1990 PLC (CS) 246 (Noor Muhammad v. Air Chief Martial and others) wherein the order of removal from service passed without issuing final/second show-cause notice was declared void, in the instant case too the appellant was not provided the personal hearing although it had been requested. The respondent-department on the basis of show-cause notice and its reply imposed penalty of dismissal from service to the appellant which under the canons of justice and in the given circumstances is in contravention of the settled principles of law.
9. Under the facts and circumstances explained above, coupled with conceding statement of the Federal Counsel and the recommendation of the Chairman of Board to the relevant ministry, we are of the considered view that the major penalty of dismissal from service under Removal from Service (Special Powers) Ordinance, 2O0O is too harsh and thus cannot be maintained at all. We, therefore, under the circumstances convert the punishment of dismissal from service into removal from service with no stigma as the appellant has forgone all the pecuniary benefits from the date of tendering resignation so also the amount of Rs. 50,000/- already deposited by him (as per terms of service) which shall stand fortified to the respondents including any pecuniary benefits if accrued to the appellant for serving the department for a period of two years. With these observations this appeal stands disposed of in the above- said terms.
10. Parties to be informed in accordance with rule 21 of the Service Tribunals (Procedure) Rules, 1974.