Moazzam Hayat, Member.--Appellant Lt. Col. (Retd.) Muhammad Mohsin Mahmud was a Director in the Intelligence Bureau. He was on probation when his services were terminated under Section 11(1) of the Civil Servants Act, 1973 vide order dated 13.03.2009. His departmental appeal dated 27.03.2009 was not responded. Hence this appeal.
2. Two show-cause notices were issued to the appellant on 06.02.2009 and 23.02.2009. In the 1st show-cause notice-six charges were levelled against him relating to purchase of three pistols. In the second show-cause notice it was stated that the appellant was authorized for the procurement of GSM "off the air" monitoring system with all its accessories at a total cost of 247,865/- Pounds but the record revealed that items valuing 8300/- Pounds were deficient. It was also alleged that M/s. Syed Ali Muhammad Bukhari. Assistant Director and Muhammad Sajeel Bhatti, Computer Operator were supposed to seek training for operating the said equipment free of cost in U.K. and Pakistan, but a payment of Pounds 5000/- was made to M/s. Telelogic Limited London in complete disregard of the terms of contract. The learned counsel for the appellant has argued that since serious charges were levelled against the appellant in the show-cause notices issued under the Removal from Service (Special Powers) Ordinance, 2000, therefore, his service could not be terminated vide impugned order dated 13.03.2009 passed under Section 11(1) of the Civil Servants Act, 1973.
3. The appeal is resisted by the respondents. It is stated that the impugned order was passed in accordance with law.
4. The appellant was issued show-cause notices under the Removal from Service (Special Powers)
Ordinance, 2000. His services could not be terminated under a different law i,e, 1973 Act. The action was initiated against him under the Removal from Service (Special Powers) Ordinance, 2000, therefore, the final order should have been passed under the same law. We accordingly hold that the impugned order was passed under an incorrect law.
5. The penalty of termination from service is not provided in the Removal from Service (Special Powers) Ordinance, 2000. On this point also the impugned order cannot be sustained.
6. The appellant was definitely on probation. However, when serious charges were levelled against him and show-cause notices issued to him, his termination could not be treated as termination simplicitor. The impugned order dated 13.03.2009 was in fact penal in nature, passed in the garb of "termination simplicitor". When serious charges are levelled against a probationer, he is entitled to adequate opportunity to defend himself. In this case the appellant was not given adequate opportunity to defend himself though the charges levelled against him in two show-cause notices were very grievous. It is also an established law that where the charges are grievous, regular inquiry 'becomes mandatory. The competent authority should have ordered inquiry against the appellant and then could pass appropriate orders under the Removal from Service (Special Powers) Ordinance, 2000. A serious illegality was committed by the competent authority in dispensing with the mandatory provisions of the Removal from Service (Special Powers)
Ordinance, 2000.
7. For the above reasons, we hold that the impugned order was passed in total violation of law. It should have been passed under the Removal from Service (Special Powers) Ordinance, 2000 and not under Section 11(1) of 1973 Act. Under the 1973 Act termination order could be passed without levelling any allegation. In other words an order of termination simplicitor only could be passed under this provision of law but not a penal order. The competent authority had passed a penal order against the appellant giving it the colour of termination. As such he had passed the said order in total disregard of law.
8. The result is that the appeal is accepted, the impugned order dated 13.03.2009 is set aside and the appellant is reinstated into service. On the basis of show-cause notices issued to him regular inquiry shall be held against him. On the basis of inquiry report and after observance of other legal formalities the competent authority may pass a fresh order under the 2000 Ordinance, preferably within a period of four months from the date a copy of the judgment is received in his office. The payment of back benefits will depend on the outcome of fresh proceedings.
9. There shall be no order as to costs.
10.Parties shall be informed accordingly.