' Epigrammatic facts of the case are that the appellant was appointed as Warder in Prisons Department in BS-5 vide order dated 14.7.2009. In terms of appointment letter as issued by the DIG Prisons, Lahore, he was supposed to join the duty by 30.7.2009. He joined his duty as such on 30.7.2009. His total length of service was 2 days being probationer and absented himself from duty without any intimation to the competent authority. His absence was noted from 1.8.2009 to 8.12.2009 (127 days). The Superintendent District Jail, Sheikhupura issued notices of absence at his home address directing him to assume duty but all his efforts went in vain. Finally the DIG Prisons vide order dated 27.12.2009 dismissed the ' appellant from service under the PEEDA Act, 2006. His departmental appeal was rejected on 9.7.2011 by the IG Prisons. The appellant filed another appeal before the Secretary Home who vide order dated 23.8.2011 informed the appellant that record was examined and found his departmental appeal was not maintainable because the appellate authority was IG Prisons under the PEEDA Act, 2006 who had already rejected his appeal. He was advised to file service appeal under Section 19 of the PEEDA, Act, hence this appeal which was filed on 28.9.2011.
2. Learned counsel for the appellant stated that the appellant has been ousted without holding any regular inquiry and no show-cause notice was served upon him. All impugned orders are violation of law. Regarding absence of 127 days learned counsel for the appellant stated that after joining the service, the appellant met an accident due to which he remained admitted in the hospital and the doctor advised him bed rest. In this regard, two medical prescriptions were referred.
3. Conversely, learned D A stated that the appeal in hand is barred by time and no application for con donation of delay was filed. He asked for dismissal of the instant appeal.
4. Arguments heard and record perused.
5. The appellant challenged the order dated 9.7.2011 whereby IG Prisons dismissed his departmental appeal which was challenged by him before the Home Secretary through another appeal. Under Section 17 of PEEDA Act, 2006 revision lies to the administrative secretary who may call for the record to see the correctness, legality or pre priety of order. In Superintendent of Police's case (1992 SCMR 2162) it was held by the honorable Supreme Court of Pakistan that when a power is conferred on a public functionary and it is exerciser for the benefit any affected party then that party gets an implied right to move for the exercise of such power. In such case the August Court held that revision petition filed by the respondent therein was competent and had to be entertained and it would be dealt with own merits. I am in agreement with the learned counsel for the appellant that such appeal was actual a revision petition and Home Secretary should have decided the case on merits. It has been held by the honorable Supreme Court of Pakistan that the revision was competent, therefore, I am not in agreement with the learned D.A that the departmental appeal was barred by time. The appellant has been penalized with the penalty of removal from service without adopting the prescribed procedure. No copy of show-cause notice was filed by the respondents. It appears that mere sending notice of absence was treated show- cause notice which is violation of the law. Be that as it may, it is not denied that while invoking the penal provisions of PEEDA Act, 2006 no regular inquiry was conducted. The version of the appellant is that after joining the service he met an accident and remained admitted in the hospital. The allegations against the appellant are of such nature requiring the production of evidence to prove.
In this regard I am of the considered view that a holding of departmental inquiry was necessary condition. In case in hand a major penalty of removal form service has been awarded against the appellant under the PEEDA Act, 2006 which could not have been done without due course of law. In Naseeb Khan's case 2009 PLC (CS) 19 in Para 5 the honorable Supreme Court of Pakistan held that in case of imposing major penalty, the principle of natural justice requires that a regular inquiry is to be conducted in the matter and opportunity of defense is to be provided to the civil servant proceeded. In the case in hand the departmental authority also failed to adhere to abide by the settled principle of law.
6. In view of the above, the appeal is allowed, the impugned orders are set aside and the appellant shall stand reinstated in service. The case is remanded to the competent authority to hold a regular inquiry in the matter accordingly within a period of two months from the receipt of this order. The Intervening period shall depend upon outcome of the regular inquiry.