Shahid Ahmad, Member.--The present appeal has been preferred under Section-4 of the Service Tribunals Act, 1973, against the imposition of major penalty of Termination from service vide order dated 25.08.2021. Against this -the appellant preferred departmental appeal dated 20.09.2021, which was not decided by the department, hence, the instant appeal. The appeal is duly supported by an application for condonation of delay.
2. Concisely, the facts of the case are that the appellant was appointed as Lascar/Tindal (BS-02) vide order dated 07.08.2012 on contract basis for the period of two years under Assistance Package after the death of his father who was serving in the same department as Senior Preventive Officer.
While performing duty as office sepoy the Respondent No. 04 vide letter dated 26.07.2021, placed the appellant "OFF DUTY" with immediate effect on the basis of an incident report of misusing official authority and misconduct. Thereafter, the respondent Without adopting due course of law, terminated service of the appellant vide impugned Order dated 25.08.2021 as the appellant was not served with Explanation Memo, Charge Sheet, Statement of Allegations, Show Cause Notice or anything conveying any reason. The said order was challenged by the appellant vide departmental appeal dated 20.09.2021. The respondent also violated the instructions conveyed vide Circular dated 28.08.2018 issued by Prime Minister's Office (Public), Islamabad advising not to terminate the services of any employee, serving in subordinate staff/junior cadre on regular/contract/ adhoc basis, on any grounds including disciplinary action till further order.
Besides, it is mandatory provision of law to hold regular enquiry before awarding major punishment but in case of appellant no regular enquiry was conducted, and even no Show cause Notice and charges were given to the appellant, hence the termination impugned order was illegal and void, hence, this appeal.
3. Learned counsel for the appellant contended that the service of the appellant was terminated vide order dated 25.08.2021 in violation of rules, regulations and Government instructions, hence it was prayed that the respondents be directed to reinstate the appellant along-with all consequential benefits.
4. The respondent department contested the appeal in their written comments, and contended that the appellant was appointed as "Lascar" vide Office Order dated 07.08.2012 under policy of the Prime Minister's Package for families of Employees of Federal Government, who die during service.
He continued to serve as "Lascar" from 07.08.2012 to 24.07.2021. While he was posted at Rummaging and Boarding section Port Muhammad Bin Qasim, the SPS (Administration), Mr. Khalid Mehmood forwarded an incident respect regarding recovery of liquor, beer and cigarette rims from a car driven by the appellant and Jamadar Tajjamul Hussain while returning to main gate PMBQ after Rummaging a ship. On receipt of this report at Head Quarters, Collectorate of Customs Enforcement Karachi, the appellant was placed off duty on 26.07.2021. The appellant was a contract employee, and misconduct was reported against him by the reporting officer, Therefore, the authority decided to terminate his contract on the basis of gross misconduct. It would not be out of place to mention here that the appellant was also suspended vide Order date 08.02.2014 on charge of misconduct. However, upon inquiry the said charges could not be proved and was reinstated. It was, therefore, prayed that to dismiss the appeal with exemplary and compensatory cost.
6. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
7. It has been observed from the perusal of the material placed on record that the appellant was appointed as Lascar/Tinder in (BS-02) in the Model Customs Collectorate (Preventive), Karachi on contract basis for the period of two years under Assistance Package for Families of Government Servants, who Died in Service vide Office Order No. 87 dated 07.08.2012. The contract of the appellant was extended till on 18.07.2021 and on account of an incident report he was placed 'OFF DUTY' on 26.07.2021 which is an admission of the fact that although no formal order for extension of contract was issued yet he was allowed to continue work. Allegations of recovery of liquor, beer and cigarette rims from the car driven by the appellant during rummaging of a ship was leveled and on this account the department terminated the contract on charges of poor performance and misconduct. Normally services of contact employee are liable to be terminated on 30 days notice or pay in lieu thereof. In this case the appellant was condemned on allegation of misconduct without having been provided a fair opportunity to clear his position which required that there should be a regular inquiry in terms of Efficiency and Discipline Rules, 2020 before condemning him for alleged misconduct.
8. The Hon'ble Supreme Court of Pakistan in Para-7 of the judgment dated 05.06.1997 (1997 SCMR 1552) passed in Civil Appeal No. 1428 of 1995 titled The Secretary Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz-ul-Haq had held that "we may observe that there is a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in which Waheeduddin Ahmad, J. has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct as follows. "In the light of the above discussion, it appears to me that a probationer is a person who is taken in service subject to the conditions that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service.
I agree with the view expressed in Muhammad Afzal Khan. v. The Superintendent of Police, Montgomery and Riaz Ali Khan v. Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. In the last-mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. " In another case reported as Zahoor Ahmed v. WAPDA and others (2001 SCMR 1566) the Hon'ble Supreme Court of Pakistan had held that "we are of the opinion that in terms of allegations pertaining to misconduct of Appellant it was, incumbent upon WAPDA to have conducted regular enquiry against Appellant after adopting procedure laid down in Rule 5 of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, because we have already held in the judgment cited hereinabove that when an employee has to be removed on the basis of misconduct allegedly committed by him he deserved fair opportunity to defend himself because if for such reasons he is dismissed from service then for all the times to come he carries a stigma of misconduct with him."
9. As a result of above discussion, we are of the considered opinion that service of the appellant was terminated without adopting due legal procedure. The impugned office order dated 25.08.2021 is not sustainable in law and declared as illegal, unlawful void ab initio, hence, is set aside. The respondent is directed to reinstate appellant in service from the date of his termination and conduct denovo proceedings by affording opportunity of hearing and decide the matter within three months from the date of copy judgment is received in the office of respondent. The question of back benefits shall depend upon the outcome of such proceedings.
10. There shall be no order as to costs. Parties be informed accordingly.