' SAYED MEHAR HUSSAIN SHAH, (MEMBER).--- The appellant through this appeal has challenged the order dated 30-7-2002 whereby major penalty of removal from service was imposed upon the appellant under the Removal from Service (Special Powers) Ordinance, 2000. Against the said penalty, appellant preferred a departmental appeal on 12-8-2002 which was rejected on 12-10- 2002 and allegedly- obtained by the appellant on 1-10-2003; hence, this appeal. An application under section-5 of the Limitation Act has also been filed along with the appeal.
2. The main thrust of the arguments of learned counsel for the appellant was that major penalty of removal from service was imposed upon the appellant without issuing show cause notice or holding a regular departmental inquiry, which is not legal and in support of his arguments, learned counsel relied on 2000 PLC (C.S.) 2044, PLD 2001 SC 980, 1980 SCMR 850, 1999 SCMR 841, 2002 SCMR 57 and 2003 PLC (C.S.) 395/514.
3. Learned counsel appearing for the respondents did not contest the above arguments, advanced on behalf of the appellant's side and left the matter before the Tribunal to decide the same in accordance with law.
4. We have heard the arguments of both sides and have carefully perused the material placed on record. So far as the point of limitation is concerned, we like to reproduce hereunder order recorded in diary of this Tribunal dated 5-4-2006:- "5/4/2006.
' Before: Qazi Muhammad Hussain Siddiqui and Mr. Rashid Ali Mirza, Members.
' Present: Mr. Sanaullah Noor Ghouri, Advocate for the appellant.
' Syeda Bilquees, Advocate for the respondents.
' Advocate for the parties are present. Heard them and perused the record. The contention of the Learned Counsel for the appellant is that the appellant was removed from service vides order dated 30-7-2002. He had filed departmental appeal against said order well within time an 12-8- 2002. His departmental appeal was rejected vide order dated 12-10-2002 a copy of the rejection order was 'conveyed' to him on 1-10-2003 when the appellant visited the office of the respondent No, 1.
' It is not known why for more than one year the rejection order of the departmental appeal was not conveyed to the appellant, but then in the written comments, in para-11, the respondents themselves had admitted that- the appellant had attended the office on 1-10-2003 and had received the order of rejection of his departmental appeal. The respondents have not stated, if during the intervening period, they had sent a copy of the said rejection order to the appellant.
' Under the circumstances, the appeal' cannot but be declared to be within time. The appeal is within jurisdiction of the Tribunal. It is, therefore, admitted. Security. Adjourned to 7-9-2006.
Sd/- ' MEMBER ' Sd/- ' MEMBER"
' Since a Bench of this Tribunal had earlier took up the issue and admitted the appeal to be within time, therefore, issue of limitation has already been decided.
5. It has been stated in the memo. Of appeal that appellant was granted leave, which was denied by the respondents in their comments, and being a controversial issue this could have been decided only when a regular departmental inquiry would have been conducted, which has not been done in this case. The ex parte action was taken against the appellant whereby major penalty of removal was imposed upon him. It has by now a well settled principle of law that before awarding major penalty upon a delinquent employee, a regular departmental inquiry is necessary where the accused was to be provided full chance of defence as enshrined in the maxim "audi alter= partem", which is lacking in this case.
6. The upshot of the above discussion is that the impugned order dated 30-7-2002 imposing major penalty of removal from service upon the appellant is set-aside as well as the appellate rejection order dated 12-10-2002. The appellant is ordered to be reinstated in service. However, the respondent --. Department is directed to initiate and hold de
FAISAL ARAB, J.--- In the eighties and the nineties, the petitioners were appointed as Clerks in the Local Bodies of various districts of Sindh that were established under the Local Government Ordinance, 1979. They were assigned the post of Octroi/Export Tax Clerks. In 1999, Octroi and Export Tax were abolished with the result that their post was also abolished hence their services became redundant. They became surplus staff. However, being permanent employees they continued to receive salaries. In order to gainfully utilize their services, the Secretary, Sindh Local Government Board wrote letter dated 1-11-2001 to District Coordination Officers of all the districts to fill the vacant post of Secretary, Union Council in their respective districts, by utilizing the services of these surplus staff. This letter was followed by another letter dated 16-12-2002 issued by the Secretary, Sindh Local Government Board wherein it was stated that the staff, which has become surplus on account of abolition of Octroi and Export Tax Department of the Local Bodies, are a drain on the meager resources of the Local Bodies, therefore, in order to gainfully employ them, they should be adjusted against suitable vacant posts in the Union Councils. Pursuant to such directions, all the District Coordination Officers of Sindh started adjusting the surplus staff by posting them as Secretaries of the Union Councils which is a BPS-7 grade clerical post. Hence, in this manner the services of hundreds of surplus staff of the defunct Octroi/Export Tax Department, which included the petitioners as well, were utilized in the year 2002 by adjusting them on the vacant posts of Secretary of various Union Councils.
2. In 2008 i,e, after several years of adjustment of surplus staff, the Government of Sindh published an advertisement inviting applications for appointment to the post of Secretary, Union Councils from all over the Sindh. The posts that were shown vacant also included the posts on which the surplus staff of the abolished Octroi and Export Tax Departments was adjusted several years ago.
Aggrieved by such decision of the government, the petitioners filed the present petitions.
3. Case of the petitioners is that having been adjusted against the posts of Secretary of various Union Council as far back as 2002, they are again being made redundant without any fault of their own; therefore, they be treated as permanently absorbed in the posts, they are presently occupying for the last more than 08 years in which they have gained experience of the post as against the in-experienced fresh applicants.
4. Case of the respondents, on the other hand; is that the petitioners were originally Clerks of Town Municipal Administration and Union Councils whereas the post of Secretary, Union Council is a Provincial Cadre Post of Sindh Councils Unified Grade Services (SCUG) and the power to make appointment to such post under the rules vests in Sindh Local Government Board, therefore, the petitioners, being originally Clerks of Town Municipal Administrations and Union Councils cannot seek absorption in SCUG cadre posts. It is also the case of the respondents that there is no procedure prescribed for absorption in service and the post of Secretary, Union Council is to be filled only through direct appointment and for such purpose; the present process of direct appointment was initiated in 2008, which has been called in question in the present proceedings.
5. In brief, it is the case of the respondents that as the petitioners were ever absorbed permanently to the posts on which they are functioning as Secretaries of various Union Councils since 2002, they cannot claim any right to hold such posts but were free to participate in the process of appointment as fresh candidates. It has also been argued that as the post of Secretary, Union Council is Unified Grade cadre post, whereas the petitioners were appointed on non-Unified Grade cadre post and both the posts being posts of two different cadres, the petitioners have no right to seek permanent absorption to the post of Secretary, Union Council merely because they are presently occupying such post for the past several years.
6. In similar petitions i,e, C.P. No,673 of 2009 decided by this bench on 10-5-2011 one Mr. Nadir Khan, the Director-II, Secretary, Local Government. Board appeared before this Court. In reply to queries made by the Court, he had stated that the required qualification for the post of Secretary, Union Council is Matriculation. He submitted that the lower cadre staff in the Union Councils comprises of four persons i,e, one Secretary, Union Council, two Clerks and one Naib Qasid. When he was asked that if the posts which the surplus staff of defunct Octroi and Export Tax Department were occupying are filled through fresh appointments from outside then how the services of the petitioners would be utilized, to which he answered that they after relinquishing the post of Secretary, Union Council to the new appointees would continue to receive their salaries as Clerks from their respective Union Councils. This means that the petitioners would become fifth member of the lower cadre staff in the Union Councils when the requirement is only for four. Hence their services would again become surplus and their salaries would again be a drain on the meager financial resources of the Union Councils. From this act of the government it has become quite clear that the Government has decided. To make fresh appointments to the posts of Secretaries, Union Councils in place of the surplus staff, which was already adjusted against such posts without first deciding how their services would be gainfully employed after they are replaced, with fresh appointees. No doubt the' petitioners would continue to remain employed and shall be paid salaries, being permanent employees, but their services would be of no avail as the requirement of lower cadre staff in a Union Council is only four whereas the petitioners would become unneeded fifth member of the staff having no utility at all. Thus the Union Councils would again be burdened with their salaries without their services being gainfully utilized.
7. There is no denying the fact that the petitioners are permanent employees of Union Council whose services after abolition of the Octroi and Export Tax Departments became surplus and thus they were adjusted against the vacant post of Secretary of various Union Councils in 2002. From the contents of the letter No,SLG/02/06 dated 16-12-2002 issued by Secretary on the basis of which the surplus staff was adjusted against the post of Secretary, Union Council, it is evident that main consideration which then prevailed with the Government for utilizing the services of hundreds of surplus staff of the abolished Octroi and Export Tax Departments was to gainfully employ them in order to avoid drain on the meager financial resources of ,Union Councils. After their adjustment in 2002, they have been 'working as Secretary, Union Councils for the past eight years and have gained experience in their area of activity. To describe them now as non-SCUG cadre staff is of no consequence when their services were adjusted against SCUG,cadre post. Their fate was already decided in 2002 when they were taken out from the surplus pool and gainfully employed against the vacant posts of Secretaries of various Union Councils. Even if it is assumed that these posts were not permanently filled but the circumstances in which the petitioners found themselves in 1999 upon abolition of their posts, which they then held, prompted the government to gainfully utilize their services on the basis of general policy of adjusting them against the post of Secretary, Union Council. Such a policy in the given circumstances was just, fair and reasonable. Now to make them again redundant would not only be unfair to them but would again be a drain on the financial resources of Unions Councils. It would also be contrary to the original policy, reflected in the above discussed letter of the Provincial Government dated 16-12-2002 entitling them to be adjusted against the vacant post of Secretary, 'Union Council. If fresh appointments are made in place of the petitioners, then they would again become surplus fifth member of the staff. In such circumstances the only reasonable approach that ought to have been adopted was that they be permanently adjusted in the posts that were given to them eight/nine years ago. It seems that the only object of throwing the petitioners out from their present posts is to treat them as if they were never adjusted at all in their present post. The petitioners at the time of becoming surplus were already permanent employees and were also adjusted against permanent post of Secretary Union Council. They should, therefore, be treated as permanently absorbed in the post which was assigned to them in 2002. After such adjustment, if any vacancy remains then only such vacant post should be filled through fresh appointments. Had the financial interest of the Local Government and the fate of the petitioners been kept in mind, then the present policy of recruitment through fresh appointments on the posts already occupied ought not to have been made at all which calls for replacing the experienced hands with fresh appointees.
8. No doubt, when the petitioners were working as Octroi/Export Tax Clerks, they were permanent employees of Town Municipal Administration and Union Councils and did not belong to SCUG Cadre post but then; upon abolition of Octroi/Export Tax Department, services of hundreds of Octroi/Export Tax Clerks became redundant and it was the Government of Sindh, which had to decide their fate i,e, whether to allow them to be a burden on the meager resources of the Local Bodies by paying them salaries without utilizing their services or to gainfully employ them in the manner which was more practical just and reasonable in the given circumstances. In this background, the Government of Sindh through Sindh Local Government Board took a wise decision, which is reflected from its letters dated 1-11-2001 and 16-12-2002. These letters, for convenience sake are reproduced as follows:- Letter dated 1-11-2001 "To, ' The District Coordination Officer, District (All).
SUBJECT. POSTING OF SECRETARIES UNION COUNCILS ' You are requested to please fill the remaining vacancies of Secretaries Union Councils belonging to SCUG cadre in your district out of the surplus staff of Export Tax/Octroi Tax Branches of Councils at your earliest.
' Please ensure that as far as possible the acting Secretaries may at least be in BS-7. However, if BS-7 officials are not available, only in that event Senior BS-5 Octroi/Export Tax Clerks be posted as Secretaries. Please also ensure that where SCUG BS-7/8/11/16/17 Secretaries are posted by Government no nonSCUG Secretaries is posted.
This may please be treated as Most Important.
' Sd/ (Muhammad Sualeh Ahmed Faruqui)
' Secretary, ' Sindh Local Government Board. ' move departmental proceedings against the appellant by providing full chance to the appellant to cross-examine the witnesses and to defend himself 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. No order as to costs.
7. Parties be informed accordingly.