Syed Rafique Hussain Shah, Member.--Since all the titled appeals are almost identical in their characteristics, having similar facts and involving common questions of law, therefore, we intend to dispose them off jointly through this single judgment, to be recorded in the instant Appeal No. 16(P)CS/2014.
2. Briefly, the appellants started their career as. Sepoy in Bajaur Levies, Bajaur Agency, Khyber Pukhtoonkhwa. The period spreading over 2007 onward was very turbulent for the said region and the whole area remained under the constant raids and attacks of the miscreants who had taken shelter in the neighbouring Afghanistan. The life of the people of the area became so unsafe that majority of them migrated to down districts for the protection of their life, property and honour. The personnel of security forces i.e. Local levies, etc. Also remained under threat and attacks of the militants. Suicide attacks, bomb blasts and abduction for ransom became fashion of the day, The people of the area had to face great hardships and miseries. The Levy personnel who are normally not well-equipped used to come under the attack of the militants as they were deployed on front line at different security posts spreading alongwith the boarder.
3. It is alleged that the Levy Force could not properly resist the onslaught of the militants and did not fight the miscreants with courage rather they surrendered to the miscreants after laying down their arms to display their cowardice. On this allegation quite a large number of Levy personnel were terminated from their service. So many persons were sent home through verbal orders while so many others were terminated from service without conducting proper inquiry against them.
4. In this background, the affectees firstly approached their authority for reinstatement in service, denying the allegations of cowardice against them. But on failure to get relief from the authority, they knocked the door of this Tribunal where their grievances were redressed accordingly on the ground that the authority proceeded against them without following the procedure required for dismissal of civil servants. In so many cases the concerned department of government failed to get the verdict of the. Federal Service Tribunal reversed. In all those cases it was laid down that a civil servant could not be imposed major penalty of dismissal from service without holding a regular inquiry. So many cases were sent back to authority for conducting denovo inquiry against the accused officials but the directions of the Tribunal were not followed in, letter and spirit. The authority on the strength of its might again repeated similar orders.
' So, for quite some time legal battle between the poor Levy personnel and the mighty political authority continued.
5. The titled appeals were also filed in the above-mentioned backdrop.
6. While assailing the authenticity, validity and legality of the impugned orders whereby the appellants were terminated/dismissed from service, the appellants submitted that the said orders were illegal because they were issued without any show-cause notice to them and without conducting proper inquiry into the matter. It was further alleged by the appellants that neither the statement of allegations were issued to them nor charge sheets were served upon them and, as such, the dismissal orders were unlawful, arbitrary, void ab initio and ineffective against their rights.
The appellants also made reference to identical cases vide which their colleagues were reinstated into service by this Tribunal. The judgments of this Tribunal dated 12.03.2013, 17.11.2011, 16.07.2010 and 15.02.2012 were cited by the appellants in support of their claim. It was categorically submitted by the appellants that in view of the judgment of the August Supreme Court of Pakistan reported as 1996 SCMR 1185, they were entitled to the same benefits of the judgment, passed in favour of their colleagues. .7 The respondents vehemently contested the appeals filed by the appellants. In their parawise comments the respondents described the appeals as time barred and alleged that the appellants deserted and abandoned the important posts to the militants and in this way they displayed cowardice and, thus, they were dismissed from service. The respondents, however, in their parawise comments admitted that show-cause notice could not be issued to the appellants because after their, desertion they disappeared and despite repeated calls they did' not appear before the competent authority.
8. We have,heard the learned counsel for the parties, and have gone through the case file.
9. We have also perused the judgments of this Tribunal dated 01.03.2013 passed in Appeals Nos. 184 to 190, 196, 197, 200, 201, 227 to 234, 241 to 245, 247, 256 to 267, 318, 340 to 345, 366, 367, 402 to 414, 419 to 438, 438-A, 439 to 443, 446 to 454(P)CS/2012 and judgment, dated 12.02.2015 delivered in Appeals No. 197, 198, 200 to 203 & 120(P)CS/2011. Mr. Misbahullah Khan and Mrs. Samreen Akhtar, Advocates appeared on behalf of the appellants and addressed their arguments mainly stressing upon the point that it was settled principle of law that where nature of charges were serious and where these charges were denied by the accused officials, then holding of a regular inquiry was mandatory and without holding such inquiry no major punishment could be awarded. In this respect the learned counsel for the appellants placed reliance on 2004 SCMR 316, 2004 PLC (CS)
524, 2002 SCMR 57, 2001 SCMR 1566, 2000 SCMR 1321 & 1868, 1994 PLC (CS) 1717 and 1993 SCMR 603.
It was next argued by the learned counsel for the appellants that the appellants were neither issued any show-cause notice nor they were provided any opportunity of personal hearing and, as such, in this view of the matter the impugned orders lost their authenticity, legality and validity.
They made reference to judgments of August Supreme Court of Pakistan reported as 2000 SCMR 1034 and 1994 SCMR 2232 in this connection. The learned counsel for the appellants further pointed out that the dismissal orders had made large number of people jobless thereby depriving them of the means of livelihood without considering their viewpoint, which was against the constitutional guarantee imposed upon the State regarding promotion of social justice. Reference in this respect was made to 1994 SCMR 2232.
11. Mrs. Samreen Akhter, Advocate further pleaded the case of Gulab Khan and ten others regarding their claim of pension and contended that the said appellants were quite entitled to pensionary benefits.
12. On the contrary, the learned counsel M/s Iqbal Durrani and Iqbal Waheed, Advocates while appearing on behalf of the respondents gave much stress on the point that the appellants were Levy personnel and they were, duty bound to resist the militants to their hilt but instead they showed cowardice in the discharge of their duties, hence, they were rightly sent home by the authority because there was no place of such coward people in the Force. In view of the learned counsel for the respondents the retention of the appellants in the Levy Force was not in the interest of the Force as their presence could demoralize the other Force. The learned counsel for the respondents, however, did not deny the fact that the appellants were not issued show-cause notice and that no regular inquiry was held against them. According to their contention since the appellants were not available and had gone in desertion, it was not possible for the authority to send them show-cause notices or to hold regular inquiry against them
13. We deem it appropriate to mention here that in the judgment of this Tribunal in Appeals No 197, 198, 200 to 203 & 2120(P)CS/2011, dated 12.02.2015 the question of jurisdiction of this Tribunal had been settled, holding that this Tribunal had got jurisdiction to entertain and adjudicate upon the appeals of such nature. So, we feel it unnecessary to discuss the jurisdictional issue.
14. Admittedly, the appellants were charged for displaying cowardice, surrendering to the militants and deserting from their places of duty. These charges, no doubt, were very serious and of factual nature, which were denied by the appellants, hence, oral evidence was needed to be recorded to prove these allegations, onus of which was totally upon the authority (prosecution). In the instant appeals, no record of any inquiry has, been produced rather it has been admitted by the respondents in their comments that no inquiry was conducted because the appellants were not available. To prove that the respondents had issued notices to the appellants in any shape, whatsoever, nothing has been brought on the file to substantiate the said version. There is no record available on the file to show that disciplinary proceedings were initiated against the appellants but they could not be completed due to non-availability of the appellants. We find no record of any inquiry on the file which was conducted prior to the imposition of the major penalty.
Needless to explain that as per consistent view of the Hon'ble Supreme Court of Pakistan major penalty cannot, be imposed without holding a regular inquiry. In this regard we may respectfully refer to the judgment of the Hon'ble Supreme Court of Pakistan reported as 2008 SCMR 1362 wherein it has been declared that regular inquiry should have been conducted to unveil the reality and major penalty of removal/dismissal from service should not have been imposed, being too harsh, in view of the nature of allegations, which could not be substantiated without adducing any cogent and concrete evidence. It may not be out of place to mention here that the Political Agent/Commandant Bajour. Agency as well as Secretary FATA Peshawar have already reinstated a number of officials of Bajour Levies against whom similar allegations of desertion from duty were levelled. In this respect orders of the authority dated 23.12.2008, 06.08.2009, 12.01.2010 and 20.04.2009 were referred to by the appellants whereby certain officials of Bajour Levies were reinstated into service by the Political Agent/Commandant and Secretary FATA Peshawar. For this reason too the appellants deserved equal treatment because discriminatory treatment against them is violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
15. Consequent upon what has been discussed above, we are of the considered view that the impugned orders whether verbal or written, are not sustainable in the eyes of law as they are in violation of the dictum laid down by the Hon'ble Supreme Court of Pakistan. The impugned orders are, therefore, accordingly set aside and resultantly the instant appeals are accepted and the appellants are ordered to be reinstated into service from the date of the impugned orders.
However, the question of back benefits shall be decided by the competent authority in accordance with the instructions contained at Serial No. 155, Vol. II of Civil Establishment Code [Estacode, 2007Edition], arid the dictum of law as laid down in judgment of the Hon'ble Supreme Court of Pakistan reported as 2010 SCMR 11.
16. Parties to bear their own costs and they be informed in accordance with rule 21 of the Service Tribunals (Procedure) Rules, 1974.