The petitioner has assailed the vires of order dated 07.05.2001 passed by the Executive Officer, Rawalpindi Cantonments Board, whereby he was discharged of his service.
2. The learned counsel for the petitioner has contended that as per impugned order, he was heard by the authority on 28.03.2001 but according to the record an order was passed on 29,03,2001 that he should be produced before the PCB for personal hearing on 30.03.2001. It is urged that he has been condemned unheard and as such the order is not sustainable, It is contended that he had filed the petition before the Federal Service Tribunals, which set aside the order of his discharge from service vide his order dated 30.06.2010 but the August Supreme Court of Pakistan remanded the case vide order dated 03.02.2011 passed in Civil Petition No, 1946-2010 and thereafter, the learned Tribunal has held vide order dated 29.04.2011 that it lacks the jurisdiction to hear the appeal so he has no remedy except to invoke the constitutional jurisdiction of this Court.
3. The learned counsel for the respondents has contended that the writ petition is hit by the principle of laches and that the petitioner was proceeded against in accordance with law and as such the impugned order does not suffer from any illegality or infirmity. It is also urged that the writ petition is not maintainable. In support of the contentions raised reliance is placed on PLD 1991 SC 102, PLD 2010 SC 1066, 2003 SCM R 1493 and 2005 CLC 1447.
4. The petitioner is not civil servant within the meanings of Section 2(b) of the Civil Servants Act, 1973 and is an employee of the Cantonments Board. Section 2(a) of the Service Tribunals Act, 1973 has been deleted and as such the petitioner cannot seek the remedy before the Service Tribunals Act, 1973. The petitioner is governed under Pakistan Cantonments Servants Rules, 1954 framed in exercise of the powers conferred on the Federal Government under Section 280(2)(c) of the Cantonments Act, 1924. He being subject to the statutory rules can assail the order through a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in case any order is passed illegally and against the said rules. The impugned order shows that he was afforded an opportunity of hearing on 28.3.2001 but copy of the noting portion shows that on 28,3,2001 an order was passed that he be called for personal hearing. Thereafter, on 29.03.2001, it was specifically ordered that he be produced for personal hearing on 30,3.2001. The contents of Para No, 3 of the impugned order that he was afforded an opportunity of hearing on 28.03.2001, is therefore, against the record. It is obvious that he was not afforded any opportunity of hearing although it was specifically proposed that he be granted the same before passing the order for imposition of major penalty and subsequently it was directed that he be produced on 30.3.2001 but no opportunity was afforded to him on the said date also. In order to rule out the possibility of any clerical mistake, the learned counsel for the respondents was specifically asked as to whether the record reveals if he was infact afforded of an opportunity of hearing on 28,03,2001 or this date was wrongly typed but as per record no hearing was held on 28,03.2001 and even on 30.03.2001 the petitioner was neither present nor heard. This being so, it is obvious that the order is against the proviso to Rule 8 and Rule 44 of the Pakistan Cantonment Servants Rules, 1954. By not issuing him the final show cause notice along with the copy of the inquiry report and depriving him of the opportunity of being heard, the respondents have committed grave violation of the principles of natural justice and have also ignored the mandatory requirements of the rules. The contention that the writ petition is hit by, principle of laches, is without force because the petitioner has been seeking relief from different forums in the intervening period. The impugned order, therefore, is not sustainable. The case law cited at the bar and referred to above is not applicable on the facts of the present petition. For the reasons supra, the writ petition is accepted. The impugned order is set aside. The respondents are directed to decide the matter afresh after issuing the copy of the inquiry report along with show cause notice to the petitioner and affording him an opportunity of hearing.