' Justice (R) Shoaib Saeed, Chairman.--Shortly narrated the facts necessary for disposal of instant appeal are that appellant while working as Sweeper was proceeded against departmentally on the charge of willful absence from duty. Vide order dated 22.5.2009 Respondent No, 1 imposed penalty of termination from the date of his absence upon the appellant. He preferred departmental appeal before IG (Prisons) Punjab which was rejected vide order dated 24.4.2013. Hence this appeal.
2. Learned counsel for the appellant who mainly contended that appellant was terminated with retrospective effect which is illegal and against the law as no executive order could be issued retrospectively. Show cause notice was neither issued nor served to the appellant and no regular inquiry was held. That absence of the appellant was neither intentional nor deliberate, but due to serious illness of his sister. Appellant was not granted a fair opportunity of defense during personal hearing. That impugned order passed by Respondent No, 1 is against the law laid down by the apex Court as the termination of the appellant is not a termination simplicity because there is specific allegation of absence from duty against the appellant and on the bass of said allegation appellant was terminated from service. The impugned orders were passed in an arbitrary and whimsical manner without thoroughly sifting the material essential for awarding of major penalty. He was not provided fair opportunity of defense under the law. He deserves leniency.
3. Conversely, learned District Attorney submits that services of the appellant were terminated during probation, therefore, the competent authority was neither bound to give reason in support of order of termination nor any show-cause or inquiry was required, therefore, order of competent authority was a legal and valid order and cannot be interfered with by this Tribunal. That appellant has been found guilty on the basis of documentary evidence. Offence committed by the appellant was proved and penalty of termination has been rightly imposed. He deserves no leniency.
4. Arguments heard, record perused.
5. It is evident from record that appellant was appointed as Sweeper on 15.6.2004 and remained on probation for a period of two years as per clause-2 of his appointment letter. Appellant became regular employee after completion of his probation period as per appointment letter as well as provisions of Civil Servants (Appointment &. Conditions of Service) Rules, 1974. The plea of the learned counsel for the appellant is correct that appellant's two years probation period matured on 14.06.2006 as per appointment letter. The short order of termination was not a termination simplicity but was based on the allegation of misconduct and willful absence within the meaning of Section 10(1)(i) of Punjab Civil Servant Act, 1974, therefore, it was mandatory for the competent authority to have issued show-cause notice to him and proceeded in accordance with the procedure as laid down in the said rules, therefore, order of competent authority terminating the services of the appellant without reason cannot be considered a lawful order.
6. Perusal of record shows that appellant was terminated from service on 22.5.2009 with retrospective effect i.e, 6.3.2009. This order is absolutely, illegal and without jurisdiction.
7. Be that at it may, the law is quite clear that an order of a departmental authority cannot be made to operate retrospectively because no executive authority is vested with such powers unless expressly empowered in this behalf by the rules. In this regard, the Honorable Supreme Court of Pakistan in various judgments held that: etrospective effect is unlawful" (See 2002 SCM R 1124 & 2011 SCM R 1220).
8. In view of the above, this appeal is allowed and impugned orders are set aside. Appellant is reinstated in service"retrospective effect was given in the termination order which is not sustainable under law as termination could not be with retrospective effect unless the competent authority is expressly empowered in this regard by some statute or rules made there under. No such statute or rules could be pointed out and accordingly the removal of the appellant with r and intervening period shall be treated as leave of kind due.
(R.A.) .