Justice (R) Sayed Zahid Hussain, Chairman.--Muhammad Ahsanullah, the appellant, was Assistant Incharge (BS-15) in the Ministry of Labor and Manpower, who was temporarily posted in Ministry of Overseas Pakistanis. He is said to have unblemished service career of 39 years. In the year 2008, he was posted to the Consulate General of Pakistan, Dubai. It is this period of his posting abroad that certain alleged acts and omissions, became subject matter of disciplinary proceedings against him under the Government Servants (Efficiency & Discipline) Rules, 1973.
Eventually he was imposed major penalty of dismissal from service vide order dated 18.02.2013. The departmental appeal there-against addressed to Respondent No, 1 was filed by him well in time, which is said to have been rejected on 26.12.2013. This is an appeal- under Section 4 of the Service Tribunal Act, 1973 praying that the order of dismissal from service was passed by an incompetent authority and is violative of instructions dated 02.11.2012 on the subject of imposition of penalty of dismissal from service. While denying the allegations and that no inquiry was held about the same, he seeks setting aside of the order of dismissal from service.
2. During the course of hearing of the appeal, we have noticed that the departmental appeal was dealt with in the following way: "MEMORANDUM Subject: REQUEST FOR WITHDRAWAL OF MAJOR PENALTY OF DISMISSAL ORDER FROM SERVICE: Reference your application dated 04.11.2013 on the above cited subject.
2. This is to inform you that your request regarding withdrawal of dismissal order issued by the erstwhile Ministry of Overseas Pakistanis has not been acceded to by the Secretary Ministry of Overseas Pakistanis & Human Resource Development"
(Pervez Iqbal)
Section Officer.
Mr. MuhammadAhsanullah Ex-Assistant In Charge, H.No, 114, St. ' No, 3, Raja Town, New Shakrial, Rawalpindi"
From the very perusal of the above Memorandum, it is evident that the authority seized of the matter, was hardly conscious of the matter to be dealt with. It may be observed that the appellant had been awarded extreme penalty of dismissal from service, which order, he had challenged through the appeal inter-alia denying the allegations/charges, which according to the learned counsel for the appellant, were not even inquired into; and that the action was taken against him by an incompetent authority, lacking jurisdiction to initiate disciplinary proceedings or dismissing him from service.
3. The perusal of the departmental appeal, which the appellant addressed to the Respondent No, 1 shows that he had also requested for personal hearing to be granted, which opportunity according to him has never been afforded.
4. We feel it necessary to highlight the importance of a departmental appeal filed by a civil servant for the redressal of his grievance. It may be noticed that the very concept of "appeal" universally recognized is that the appeal is meant for reconsideration of the decision of the lower authority for reversal/review (Black's Law Dictionary, Seventh Edition, Page-94). Even the Hon'ble Supreme Court of Pakistan in the Chief Commissioner. Karachi and another vs. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak. 45), when the question arose as to whether the right of appeal under Sindh (Requisition of Land) Act (XLVI of 1947), carried with it any inherent right of personal audience and hearing, held, "that the right of appeal being a vested right, the maxim Audi alterm partem applied to it, and the appeal could not be disposed of in Chamber without giving a right of a personal audience to the appellant, because if that hearing was not given it would tantamount to destroy his vested right in his absence". In the light of above observations of the Hon'ble Supreme Court the Lahore High Court in Syed Ali Abid Zaid and others vs. Deputy Settlement and Rehabilitation Commissioner, Gujranwala and others (PLD 1967 Lahore 836) has held that an appeal is substantive right and the powers of appellate Court are contemporaneous with those exercised by the Court of original jurisdiction and that such a right carried with it the right of personal audience. Again in Muhammad Ayyub and another vs. Muhammad Yaqoob and another (PLD 1975 Lahore 445) it was held that on filing of appeal, the matter gets reopened and it becomes sub-judice to be decided in accordance with law.
Such is the importance of right of appeal and the duty of the appellate authority/forum to decide the same.
5. It may be observed that a civil servant is liable to observe a code of conduct/discipline as per S.15 & S.16 of Civil Servants Act, 1973, the violation of which, entails disciplinary action and penalties in accordance with the prescribed procedure as contemplated by Section 16 of the Act, 1973. The "prescribed procedure", envisaged by the law is the one laid down in the Government Servants (Efficiency & Discipline) Rules, 1973. Whereas the civil servant is conferred certain rights duties and remedies under the law, it also demands of him certain responsibilities and duties in the discharge of his functions. Section 22 of the Act confers right of appeal, review and representation before the specified authority. Rule 10 of Civil Servants (E&D) Rules, 1973 complements this right of appeal to a person "on whom a penalty is imposed shall have such right of appeal as may be prescribed under the Civil Servants (Appeal) Rules, 1977". Its Section 10-A though prohibits that no party shall be represented by an Advocate before the Authority, Authorized Officer, Inquiry Officer or an Inquiry Committee yet it does not exclude the personal hearing to be given to the person concerned.
Reference to the Civil Servants (Appeal) Rules, 1977 would itself show that the same have been framed by the President under Section 25 of the Civil Servant Act, 1973. It also shows beyond any shadow of doubt that such is a statutory right of appeal. The further perusal of the Civil Servants (Appeal) Rules, 1977 shows and its Rule-3 in quite clear term lays down that "every civil servant shall be entitled to appeal, to the appellate authority from an order passed by an authority or an authorized officer imposing upon him any penalty". Rule 6 of the Rules, 1977 obliges the appellate authority to consider:- "a) Whether the facts on which the order appealed against was based have been established; b) Whether the facts established afford sufficient ground for taking action; and c) Whether the penalty is excessive adequate, or inadequate, and, after such consideration shall confirm, set aside or modify the previous order and the appellant shall be informed of the reasons for passing such order"
Such is an extensive power and authority of the appellate forum that it is obliged to consider the matter over again.
6. Apart from the in-depth consideration of the appeal, it also imposes a duty upon the appellate authority to record reasons for passing the appellate order and that the appellant shall be informed of the same. This duty to record reasons while deciding the appeal is coextensive with the provisions of Section 24(A) of the General Clauses Act, 1897, which also 'obliges an authority vested with the power to make any order or direction to give reasons for making of the order. In the instant matter, the order passed by the appellate authority reproduced above in para-2, not only shows the total lack of application of independent and objective mind to the appeal filed by the appellant, it does not contain any reason whatsoever.
7. It shows that the authority passing the order had failed to apply its mind and passed the order contrary to the law and required of him by Rule 6 of the Civil Servants (Appeal) Rules, 1977. It cannot be termed a speaking order at all. By disposing of departmental appeal in such a sketchy and perfunctory manner, the valuable right of appeal cannot be frustrated or rendered nugatory. It also violates Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which ordains the principle of due process and the right to be treated in accordance with law.
8. Since the departmental appeal of the appellant has not been decided in accordance with law which the appellate authority was obliged to consider it objectively, justly and fairly, in view of our powers and jurisdiction under Section 5 of the Service Tribunals Act, 1973, we are minded to direct the Respondent No, 1 to consider and decide the appeal of the appellant by recording reasons in accordance with law i.e, Rule 6 of the Civil Servants (Appeal) Rules, 1977:
9. The learned counsel for the appellant has pointed out that the appellant has superannuated after. 40 years of unblemished service, which aspect should also be kept in mind. We entertain no doubt whatsoever that the appellate authority will consider all aspects of the matter including the length of service of the appellant, his superannuation and the principle of proportionality and decide the appeal accordingly within a period of 30 days in the light of above observations.
10. The appeal is accepted to this extent.
11. No order as to costs.