1. ' MUSHTAQ ALI KAZI (CHAIRMAN).-The appellant who was posted as District Food Controller, Larkana was suspended by the Secretary to Government, Food Department by an order dated 11th February, 1979. A show- cause notice was then issued to the appellant that while holding charge of the District Food Controller, Larkana from 10th April, 1978 until the dale of suspension, he had issued 9,981 Government owned new Bardana to Khan Muhammad Abbasi, Roller Floor Mills, Larkana unauthorizedly, free of cost in contravention of departmental orders contained in the Wheat Policy memorandum, and subjected the Government to loss to the tune of Rs. 1,29,753 being the cost of the Bardana at Rs. 13 per new bag.
2. ' The reply of the appellant was that the Bardana was being issued to the Mills from the days of his predecessors as a matter of practice and since the empty bags had since been returned by the Mills, no wrongful loss was caused to the Government.
3. ' The Secretary to Government, Food Department as Authority, then issued orders dated 21st June, 1979, reducing the appellant in grade-16 to the lowest stage of pay at Rs. 625 per month from the stage of Rs. 925 per month.
4. ' The appellant made a representation to the Secretary, Food Department mentioning it as 'Review petition', in the subject column, but treating it as an appeal in his prayer. This representation was forwarded by the Secretary to the Chief Secretary, Services and General Administration Department. After consulting the Law Department the representation was returned to the Food Department stating that there was no provision for review petition under the Efficiency and Discipline Rules, 1973. This order was communicated to the appellant by the Secretary, Food Department, who accordingly preferred a regular appeal addressed to the Chief Secretary, Government of Sind, praying for condonation of delay under the circumstances. By a letter dated 19th April, 1981 the appellant was informed that his appeal has been consigned to the record with the approval of the Chief Secretary. The appellant then preferred this service appeal under section 7 of the Sind Service Tribunals Act, 1973 on 19th May, 1981.
5. ' An objection has been raised by the A.A.-G. On behalf of the Government that the appeal is not maintainable, since a "Review petition had been preferred to the department and addressed to the same Authority who passed the original order. Instead of 'an Appeal' to the Appellant authority namely, the Chief Secretary that the appeal filed thereafter addressed to the Chief Secretary, being time-barred could not be regarded as an appeal properly filed and it was, therefore, consigned to the record. That under section 4, proviso (a), no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal or application or representation was so preferred.
6. ' In reply it has been argued by Mr. Lakho on behalf of the appellant, that a representation had been preferred through the Secretary, Food Department who had forwarded it to the Chief Secretary. It was disposed of without any orders on the ground that no review petition could lie under the rules.
7. Mr. Lakho has clarified the position that the appellant was in fact misled by the practice then prevailing in the Food Department because in similar cases review petitions of M/s. Muhammad Sharif Memon and Shah Muhammad Memon were preferred to the Secretary Food, who not only entertained them but upheld and allowed them by reducing the punishment. The photostat copies of the orders on review petitions have been filed. Mr. Lakho has accordingly argued that under the circumstances the so-called review petition could have been treated as an appeal or representation. That in any case his regular appeal that followed alongwith an application for condonation of delay should have been disposed of on merits.
8. ' Under the revised appeal rules called the Sind Civil Servants (Appeal) Rules, 1980, it has been provided under Rule 3 that the appellate authority may condone the delay in preferring appeal or review petition if it is satisfied that the delay was for reasons beyond the control of the appellant or for the reason that the earlier appeal or review petition was not addressed to the proper forum.
9. As appeal is continuation of the original cause. It is a well-established principle, that rules regarding procedure are applicable with retrospective effect. If the appellant in his departmental representation' mentioned "review petition" opposite the subject, but stated in the body of the representation that it was his appeal, the representation ought to A have been treated as an appeal and disposed of on merits. The regular appeal filed thereafter with the application for condonation of delay too could have been considered, as the cause of the delay was in fact the practice in the department allowing review petitions in similar cases in any case the application for condonation of delay ought to have been considered. It cannot, therefore, be said that no representation was preferred to the department or that the departmental remedies had not been exhausted.
10. ' Mr. Lakho has been pointed out that in the show cause notice an option had been given to the appellant for a personal hearing. The actual words were "Please state whether you would like to be heard in person." In reply to show-cause notice the appellant bad stated: "I want to be heard in person."
11. ' There is however, nothing to suggest that an opportunity for personal bearing was afforded to the appellant. Mr. Hassan Akber, A. A.-G. Has admitted that no personal hearing had been allowed in this case. In the case of Sohrab Khan Kalwar v. Secretary, Government of Sind Food Department (1) in the charge-sheet served on the appellant under Rule 5, the appellant was required to state whether he wanted to be heard in person. In his reply the appellant had answered this question in the affirmative. That, irrespective, therefore, of the question whether a personal hearing is a mandatory requirement, it was clear that the option given to the appellant in matter of personal hearing could not be denied to him without sufficient cause. There was no indication on the record that the Authorized Officer was conscious of his obligation arising under the show-cause notice served by him on the appellant. As a result the appellant was clearly deprived of the opportunity to show that the allegations against him were without foundation. It was accordingly held that the order of removal from service passed by the Provincial Government against the appellant was vitiated. The order was declared to be without lawful authority and of no legal effect. The proceedings were remitted for giving personal hearing to the appellant and then submitting the case to the authority for final orders in the light of the submissions made by the appellant.
12. ' In the case of Abdul Hameed v. The Province of West Pakistan (2) the facts were more or less similar. A charge-sheet had been served on the appellant incorporating several allegations of misconduct relating to his official duties. He was required to send his reply in writing by a specified date and to say whether he wished to be personally heard. The appellant put in a long explanation and at the end he appended the following words : "I may be given a chance of being heard, if any point still remained unexplained."
13. ' The appellant was however, given no opportunity of representing his case or to show cause against the action proposed to be taken, and it was accordingly held that this infirmity vitiated the order of removal passed subsequently.
14. In the present case also the appellant had been deprived of the opportunity of a personal hearing, though he had been given such option in the show-cause notice which had been accepted by him. Under the circumstances the final order passed by the Secretary, Food Department is clearly vitiated. The order is accordingly set aside on that account but it is open to the authority to proceed from the stage where the error crept in by allowing the appellant an opportunity of personal hearing before the Authorized Officer in connection with the charges against him. The Authorized Officer could then submit the case to the Authority with his observations in the light of the submissions made by the appellant. The appeal is accepted to this extent and the parties are left to bear the own costs. {{FOOT NOTE}}
(1) PLD 1980 SC 279 (2) PLD 1963 SC 460 {{FOOT NOTE}}