1. ZAFFAR HUSSAIN MIRZA, J.-This petition for special leave to appeal under Article 212(3) of the Constitution is directed against the judgment and order of the Baluchistan Services Tribunal, Quetta dated 27-6-1981, whereby the appeal of the respondent was accepted and order of his removal from service was set aside, with a further declaration in view of subsequent events, that he shall be deemed "to be in service from 5-5-1976 to 7-10-1980".
2. The facts necessary for the disposal of this petition briefly are that the respondent was appointed as Assistant Industries Development Officer on 22-1-1971. He was assigned the duties of an Inspection Officer of Stores procured by the Government of Baluchistan in various departments.
3. Itwas alleged against him that in the course of his duties, he had issued a false certificate to a Contractor in respect of M. S. Bars, required for the Executive Engineer, B & R Uthal, as a result of which Government had to sustain a loss of Rs. 18,86,626. In consequence on 13-4 -1976, the.
4. Respondent wasserved with a show-cause notice to the effect that he had the persistent reputation of being corrupt and also indulging in other malpractices. The respondent replied to this show-cause notice on 19-4-1976 denying the allegations and specifically raising an objection that the allegations contained in the notice were vague and lacking in particulars, with the result that they were not capable of being replied specifically. The Additional Director of Industries, Baluchistan, who was nominated as the authorised officer, recommended his removal from service and consequently he was removed from service by order, dated 5-5-1976, by Director 'Of Industries, Baluchistan.
5. After unsuccessfully challenging the order in a Departmental appeal before the Secretary Industries, Government of Baluchistan; the respondent preferred an appeal to the Baluchistan Services Tribunal (hereinafter to be referred to as the Tribunal). After hearing the parties, the Tribunal cameto the conclusion that although the allegation relating to persistent reputation of being corrupt was specific and unambiguous as to the other allegation, that the respondent Was 'indulging in other malpractices', the view taken by the Tribunal was that it was vague and unspecified. Nonetheless, the final conclusion reached by the Tribunal was that since the first allegation was sufficient to justify the penalty imposed on the respondent, there was no merit in the appeal. Strangely, however, the appeal was not dismissed but was disposed of with a direction in the following terms :-- "While dismissing this appeal it trust however be observed that the Departmental appeal of the appellant was not properly decided by the Secretary Industries. The letter dated 30th November, 1976 of the Section Officer-1, Industries Department, does not show that the Secretary had himself applied his mind and decided the appeal. The tenor of the letter shows that this Section Officer had himself decided the appeal. Moreover the plea of the appellant that the Secretary Industries had not given him an opportunity of being heard before deciding the Departmental appeal, has not been contravened by the respondent No. 2. Decision of the Departmental appeal without hearing the appellant amounts to violation of the fundamental principle of natural justice. We therefore hold that Departmental appeal must still be deemed to be pending with respondent No 2 who should carefully go through the record and decide it afresh with conscious application of mind, after hearing the appellant.
6. Copy of the judgment will be sent to the respondent No. 2 for necessary action.
7. Appeal disposed of accordingly."
8. It is pertinent to observe that none of the parties, however, pursued any further remedy to challenge this order.
9. In pursuance of the direction contained in the above-reproduced final portion of the order of the Tribunal, the Secretary Industries, reheard the appeal and once again dismissed it by his order, dated 31-7-1978. The respondent thereupon filed another appeal before the Tribunal from the aforesaid order passed on remand by the Departmental Appellate Authority. In this appeal, the Tribunal (now presided over by Mr. Justice Abdul Qadeer Chaudhry as Chairman), took the view that the show-cause notice was vague and unsupported by allegations which formed its basis, therefore, the respondent was prejudiced in his defence. Additionally, reference was made to certain specific allegations with which the respondent was confronted during the course of the Departmental appeal on remand pertaining to the purchase of M. S. Bars and the alleged issuance of a false certificate by the respondent, on the basis of which the Secretary Industries, Government of Baluchistan, maintained the order of his dismissal and in this connection the Tribunal remarked :- "But the fact remains that the appellant was not supplied with such allegations when the show- cause notice was issued, therefore, he could not be called upon to submit his reply on the allegations which have not been communicated to him."
10. On these grounds, by the impugned order the Tribunal accepted the appeal of the respondent and set aside the order of his removal, dated 5-5-1976. But as the respondent had subsequently been convicted by a Summary Military Court on 7-10-1980 and sentenced to imprisonment, the Tribunal declared, that the respondent "would be deemed to be in service from 5-5-1976 to 7-10-1930".
11. In support of this petition, the learned Additional Advocate-General, Baluchistan, has raised the following contentions :- "(i) the appeal which has resulted in the impugned order was not competent, as the Tribunal had dismissed the earlier appeal of the respondent and consequently the case could not be reheard ;
(ii) the impugned order is in violation of section 4(b) (i) of the Baluchistan Service Tribunals Act, 1974, as the direction that he shall be deemed to be in service amounts to challenging , the decision of the competent authority as regards the fitness or otherwise of the respondent to hold the Government post ; and
(iii) the fresh appeal filed by the respondent before the Tribunal was nor competent inasmuch as he had not filed a representation or appeal before the next higher Departmental authority before approaching the Tribunal, as required by proviso (a) to section 4 of the Baluchistan Service Tribunals Act, 1974."
12. As regard the first contention,. This objection was raised before the Tribunal and was rejected on grounds with which we are in entire agreement. In view of the penultimate paragraph of the earlier order passed by the Tribunal (of which no date has been given), it was clearly directed that the Departmental appeal must be deemed to be pending with the Secretary Industries who was directed to decide it afresh. Clearly, therefore, the order was in the nature of remand and was so interpreted by the Departmental authority concerned, who gave effect to the direction by' re- hearing the matter and passing a fresh order. We, therefore, find no force in the argument that the previous judgment operated as res judicata in regard to the issues involved. Be that as it may, if the Government was aggrieved with the final directions of the Tribunal, they ought to have challenged the order by means of a petition fox leave before this Court, but not having done so, it does not lie with them to raise the objection at this stage that the order passed on remand was incompetently passed.
13. The next contention is wholly misconceived. The respondent was aggrieved by the order of his removal from service, which in terms of section 4 proviso (b) (ii) of the Baluchistan Service Tribunals Act is expressly appealable. The argument that reversing the decision of the Departmental authority to remove a civil servant from service on the ground that he had persistent reputation of being corrupt etc. Is tantamount to a decision as regards his fitness to hold a post under the Government ignores the distinction between removing a person from holding a "post" on the ground of his unfitness and his removal from "service". Apparently, removal from service cannot be equated with removal from a post held by a civil servant which envisages merely, the depriving of a civil servant of a post on the ground of his unfitness vis-a-vis the duties connected with that post and assigning him some other post under the Government. Removal from service involves a severance from Government service for good, which is clearly a matter within the jurisdiction of the Service Tribunal.
14. As regards the last contention, it is sufficient to state that the learned Assistant Advocate-General has not referred us to any provision in the Rules whereby any right of appeal was provided to the respondent as against the appellate order passed by the Secretary but in any case in the view that we have taken, the appeal originally filed by the respondent was remanded for re-hearing and was finally disposed of by the impugned order, against which no objection could be raised that the respondent had not exhausted his ,right of Departmental appeal before approaching the Service Tribunal.
15. All the grounds urged in support of this petition have, therefore, no merit and stand repelled.
16. No other point was urged in support of the petition. In consequence, this petition is dismissed.