S. ABDUL JABBAR KHAN (CHAIRMAN). -Azmatullah Khawaja, Chief Engineer, Port of Yanbo, Saudi Arabia, has filed this appeal against the Government of the Punjab through Secretary, Communications and Works Department, against the order of his compulsory retirement which was notified on 22-4-1975, retiring him retrospectively from 26-3-1972. By virtue of this appeal he has prayed that the said notification be declared as nullity in the eye of law and he be re-instated in service with consequential benefits.
2. Brief facts of the case are that the appellant having topped the list of Assistant Engineers, was selected by the then West Pakistan Public Service Commission and was initiated into service as such. On 11-3-1967, the Governor of West Pakistan placed his services at the disposal of Government of Saudi Arabia, Ministry of Communication, for appoint--ment-as Civil- Engineer.
However, the period of deputation was not specified and this issue was left to be settled at some later stage. The original contract for a period of one year but every year thereafter a circular was issued for renewal of the same. The appellant remained absolutely ignorant as to what was happing between the Government of West Pakistan and Government in Saudi Arabia. On 1-2-1972, the appellant expressed his apprehension by writing a letter to the Government that he should be informed as to how long he is going to stay in Saudi Arabia and expressed his willing--ness to come back to his parent Department. Nothing was heard by him on this subject from the Government. It was only in 1975 that he learnt that he was on deputation for a period of 5 years 'and was required to come back to the country after the expiry of said period, On 3-3-1976 a reference by the Saudi Arabian Government for extension in the depu--tation period of the appellant, the Embassy of Pakistan at Jeddah approach--ed the Ministry of Foreign Affairs, Government of Pakistan Islamabad, with the request that the Government of West Pakistan be advised to extend the deputation period of the appellant in Saudi Arabia. It was on 27-4-77 that the appellant was informed through a notice that he was being proceeded under rule 6(3) of the Punjab Civil Servants (E & D) Rules, 1975, and was required to show cause as to why he should not be removed from service for his absence from duty. The appellant again apprised the Government of Punjab that he could not leave Saudi Arabia unless and until the said Government allowed him to do so. It was again on 13-2-1978 that the Government of Pakistan, Ministry of Labour and Manpower, Islamabad, approached the Embassy of Pakistan, Jeddah, directing the appellant to report back to the Department. The appellant in his reply dated 18-8-1978 clearly stated that he was ready to come back but he could not do so without the permission of the Saudi Arabian Govern--ment which would not allow a person to leave the country unless he was permitted, to do so by the said Government. NOC from Saudi Arabian Government is a must for anybody who happened to be in that land to leave the said country. However, the appellant was removed from service by the impugned notification without any cogent grounds. Hence this appeal.
3. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance. We have also given our considered attention to all the annexures filed by the appellant in support of his contention. The learned counsel for the appellant has submitted that the first order dated 11-3-1967, by which the services of the appellant were placed at the disposal of the Ministry of Communication Saudi Arabia, would show that no period was specified for the said deputation. It was further stated that the contract by which the services of the appellant were placed at the disposal of Saudi Arabian Government, had a clause as under :----- "The employee has the right to terminate this contract for reasons explained to the Ministry which has the indisputable right to either approve or disapprove the requested termination."
It was also further submitted that the employee, during his stay in Saudi Arabia will be subject to existing and future laws of the country and this term was also incorporated in the contract between the appellant's Government and the Saudi Arabian Government. It. Has been vehemently argued on behalf of the appellant that he was not a reticent person as he himself had expressed as far as back as on 1-2-1972 that he was prepared to join his Department at any time and through his subsequent letter apprised the Government of Punjab of his inability to run away from Saudi Arabia unless the said Government allowed him to do so. Learned counsel while adverting to the legal plane of the case submitted that the first notice was issued to the appellant on 27-4-1977 and second on 7-8-1978 and the order of his compulsory retirement was notified on 11-2-1979, but it was stated that the compulsory retirement was made effective from 26-3-1972. It was submitted that no order under any law in this country could operate retrospectively, therefore, the notification was liable to be struck down on this score alone. In this connection it was also pointed out that the order of the compulsory retirement was purportedly passed under serial No. 4 of rule 6 of the Punjab Civil Servants (E & D) Rules, 1975 and the action was taken by the authority under rule 8 only, in the case of the appellant. It was urged that violation of both rules had occurred and, therefore, the impugned order was not sustainable on this account also. On the other hand, the learned District Attorney has submitted that the appellant could only stay abroad for a period of 5 years and his stay beyond the said period was illegal and, therefore, the action taken against him was justified. With regard to the inability of the appel--lant to leave Saudi Arabian soil it was urged that it was for the appellant to arrange so and Government would be hardly responsible to make such arrangement for him. In this way it was submitted that the appeal filed by the appellant was liable to be dismissed.
4. We have given our anxious thought to the arguments of both the parties and axe of the considered opinion that the appeal is liable to be accepted. The perusal of Annexures A, B, C,.D, E, F, G, H, J, L, M, N, O, P & Q speak volumes in support of the appellant's case and the same have not been controverted in any manner either in parawise comments or during the course of arguments.
It is established by Annexure `A' that the appellant topped the list of Engineers selected by the West Pakistan Public Service Commission in 1962, and Annexure B fully makes it clear that no terms of deputation were settled between the two Govern--ments when the appellant was sent on deputation. By virtue of Annexure C it is clear that the appellant himself brought to the notice of Government of West Pakistan that although he was on deputation with the Government of Saudi Arabia but there was no specification of any period and the appellant was all the time willing to go back when so required. It is only through Annexure D that for the first time the appellant was being informed on 21-7-1975 that his period of deputation was only for five years and he had overstayed by three years therefore he should come back. Annexure E is a reminder of the same from the Government to the appellant. The appellant through Annexure F informed the Government that he had no intention to stay in Saudi Arabia but he could not leave the country without the permission of the said Government. We further find from the perusal of Annexure G that a desire was made by the Saudi Arabian Government to renew the contract of the appellant and had requested the authorities in Pakistan to extend such deputation of the appellant in Saudi Arabia. This letter is from the Government of Saudi Arabia to the Ministry of Foreign Affairs, Islamabad. Despite this request we find that the West Pakistan Government could not inform the appellant through Annexure H that he should come back and join the duties. Annexure J is a reminder of the same. The appellant informed through Annexure K dated 15-3-1977 that the Government should first of all decide the issue agitated in a letter dated 16-12-1975, about his inability to leave Saudi Arabia before he should be directed to go back. Annexure L is a show-cause notice and Annexure M is a reply.
Annexure N is a letter from the Ambassador of Saudi Arabia Pakistan addressed to Mr. Raees Ahmad Khan, Director-General, Technical Co-operation, Ministry of Foreign Affairs, Pakistan, Islamabad;' dated 31-7-1978 in which a stress was laid by His Excellency that Saudi Arabian Authorities need the services of the appellant, therefore, he may be allowed to stay on in the said country. In this way what we find is that all along the appellant had been willing to come back and had been agitating his point of view that he could not do so because under the Saudi Arabian Government laws he could not leave the said country without a positive permission certificate known as Kharooj. 1t seems the Government of Pakistan did not grapple with the crucial point of this case by settling this issue one for all with the Government of Saudi Arabia by pleading that this officer could not be allowed to stay after a period of 5 years which was a maximum period of deputation under the Rules of the Government of Pakistan and that, therefore, the Saudi Arabian Government should permit the said officer to leave the country. In this way we are fully satisfied that the fault does not lie with the appellant but it lies with the people handling his case at their own end.
5. We are fully in accord with the learned counsel for the appellant thano notification can operate retrospectively even if the appellant had to be retired compulsorily but he had to be retired from the date when such order was passed against him. The very fact that the notification is back dated by seven years in fact makes it illegal on this score alone.
6. We are also fully in agreement with the objection raised by the learned counsel for the appellant with regard to the violation of sub--rule (4) of rule 6 of the Punjab Civil Servants (E & D) Rules, 1975.
A perusal of this rule would show that said provisions are not penal in nature. In this provision it is held that on receipt of explanation of the accused the Authorised Officer shall determine whether the charge has been proved and if so whether a minor or major penalty should be imposed and in case it is proposed to impose a major penalty he has to send the case to the authority alongwith the explanation of the accused and his own recommendation regarding the penalty to be imposed. After receiving such recommendations the authority under rule 8 would proceed. Rule 8 lays down "in the case of any proceedings the record of which has been sent for orders under sub- rule (4) of rule 6, the authority shall, after allowing the accused an opportunity of being heard in person, pass such order as it may deem fit". We find that no such opportunity was ever afforded to the appellant in this case before the order of his compulsory retirement was passed. Even on this score the impugned order is liable to be set aside.
7. In the light of the above discussion we are of the considered opinion that the appellant could not report for duty because he was under foreign land laws which did not permit him to leave the country without its prior permission and that no rule is retrospective in nature and the rules 6(4) and 8 were flagrantly violated. The result is that we set aside the impugned order as void ab initio and thus being without lawful autho--rity, and direct that the appellant be taken into service from the date he has been compulsorily retired. However there will be no order as to costs.