1. ' R. M. ISHAQUE (MEMBER).-This is an appeal filed under section 4 of the Sind Service Tribunals Act, 1973 against the orders of dismissal passed against the appellant, Principal, Government College of Technology, Grade-19 (ad hoc) under the Efficiency and Discipline Rules.
2. Brief facts of this case are that one Mr. Shafique Ahmad Ansari was employed as Senior Instructor (Technical) in the Directorate of Technical Education, with effect from 26th January, 1963. He was thereafter promoted as Head of Electrical Department in the year 1964 and then in April, 1974 he was promoted as Principal of Larkana Polytechnic Institute in Grade-19 on ad hoc basis. Thereafter he was transferred and posted as Principal, Government College of Technology, Hyderabad with effect from 25th December, 1975. He served as Principal till the date of dismissal from service, i. e.
3. 26th June, 1978. The appellant was given a show-cause notice, dated 12th April, 1978 in which, briefly, the following allegations were levelled against him 1-
(a) That the appellant for quite some time acted in irresponsible ways and defied Government orders. He also addressed corres pondence to higher authorities including foreign embassies directly, ignoring the laid down channels of communication. He sent anonymous communications against higher officers.
(b) The appellant was transferred from Government College of Technology, Hyderabad to Khairpur vide Notification No, S.
0. (E-I)-l/33-73, dated 4th January, 1978 but the appellant did not comply with these transfer orders and applied for 15 days leave with effect from 5th January, 1978 which was refused in the exigencies of service.
(c) The appellant told the Director, Technical Education on phone that he would not hand over charge at Hyderabad and he deliberately created a situation of turmoil at the college which necessitated his relief in absentia.
(d) Apart from the above the appellant relieved one Mr. Naik Muhammad and Mr. Maqbool Ahmad Soomro unauthorisedly.
(e) The appellant ordered admission of 50 applicants against three reserved seats for defence. He was not competent to admit against the reserved seats and that competent authority was the 'Director, Technical Education, Sind.
4. ( f ) On 18th of March, 1978 the appellant was ordered by the Chief Secretary personally to stay at Karachi till further orders. The appellant did not obey these orders.
(g) On 26th March, 1978 the Additional Secretary, Education informed the appellant on telephone that he should return to Karachi immediately and report to the Education Secretary. He did not obey these orders.
5. ' On the above charges a show-cause notice was issued under rule 5(3) E & D Rules for misconduct and he was asked to show-cause within 14 days of issue of the notice as to why disciplinary action should not be taken against him and one of the major penalties be inflicted. It was also made clear in the show-cause notice that if no reply was received within the stipulated time, ex parte action would be taken against him.
6. ' The Advocate for the appellant Mr. Manzoor Ali Khan argued at length various legal aspects and technical flaws in the case. He stressed that the department did not consider the reply given by the appellant to the show-cause notice. The appellant received the show-cause notice on 22nd April, 1978 under postal registered cover. It was dated 12th April, 1978. The appellant submitted his reply to the show-cause notice, dated 27th April, 1978. It was argued that even though the reply to the show-cause notice was available to the department before passing the order of dismissal, the same was not considered. The counsel for the appellant further argued that no reasonable opportunity and grounds of action proposed to be taken were communicated to the appellant and thus rules 5(3)(a) and 5(3Xb) were violated.
7. ' It was argued that the order of dismissal was dated 26th June, 1978 but the appellant was dismissed with retrospective effect from 25th April, 1978 for misconduct which is bad in law. The counsel for the appellant therefore, prayed that this is fit case for remanding the same and accepting the appeal. In the alternative, it was argued, that the quantum of punishment, viz. Dismissal from service was an extreme penalty and that the same was not warranted under the circumstances of the case. The counsel drew attention of the Tribunal to the fact that the appellant has put in about 15 years of service and that he had meritorious record and unblemished till the present proceedings under the E. & D. Rules were taken against him. The appellant at one stage was recommended for Pakistan Civil Award. The respondents in the written statement have not denied para. 4 of the appeal.
8. ' The A. A.-G. Mr. Hassan Akbar for the Government argued that, although, the explanation to the show-cause notice offered by the appellant does not appear to have been considered, it was because of the fact that the explanation was not submitted in time as stipulated by the Department. Even if the explanation was taken into consideration, it was of no help to the appellant as the explanation does not meet the allegations. On the other hand, the language used by the appellant in reply to the show-cause notice, dated 12th April, 1978 is highly objectionable and it smacks of arrogance and insubordination. By remanding the case to the department on technical grounds no useful purpose can be served when the appellant has not given a satisfactory reply to the allegations levelled against him. The show-cause notice is self-contained and has clearly mentioned the grounds on which action was proposed to be taken against him. No further material of any kind was required to be supplied to the appellant. It is a clear case where appellant has refused to comply with the orders of his transfer to Khairpur and instead he submitted application for leave for 15 days which was refused. The appellant thereafter incited the students and some members of the staff so much so that the office of the Principal was sealed when his substitute Mr. Imam Ali Soomro accompanied by the Director, Technical Education reached the College for taking over charge from the appellant. The appellant failed to resume duty within 3 days. When he was asked to do so through notice in the newspaper. He was, therefore, treated as an absconder and ex parte decision was taken. Reasonable opportunity to show cause was given to the appellant, but he did not avail of the same by avoiding to receive the show-cause notice. In this connection, attention of the Tribunal was drawn to a summary dated nil put by Secretary Education to the Martial Law Administrator through the then Chief Secretary, in which it was mentioned that the Deputy Commissioner, Hyderabad had been requested to deliver the show-cause notice to Mr. Ansari. He reported that the notice could not be delivered to Mr. Ansari as his whereabouts were not known. Simultaneously, efforts were also made by the administrative department to locate Mr. Ansari, but he could not be contacted. Finally the department directed Mr. Ansari through a newspaper on 22nd April, 1978 to report for duty to Director, Technical Education, Sind Karachi, within 3 days. The appellant instead of obeying these orders filed a Constitution Petition in the High Court of Sind, Karachi, for revocation of orders of his transfer to Hyderabad, The petition was heard and dismissed by the High Court on 17th May, 1978. From the above it was clear that the appellant was disobeying Government orders and that he was avoiding to receive the show-cause notice.
9. ' The Tribunal has given careful consideration and anxious thought to the legal aspects of this case and the rulings of the superior Courts cited by the counsel for the appellant, viz. PLD 1967 Lah. 1112 and 1980 SCMR 850 to determine as to whether any violation of the E and D Rules has taken place. After giving careful consideration to the question as to whether it can be construed that reasonable opportunity to show cause was given to the appellant, it is observed that, although, the Deputy Commissioner tried to have the show-cause notice served on him and the appellant was also asked through a newspaper to report t Director, Technical Education, it cannot be taken to have satisfied the requirement of service in the legal sense. The provision of rule 5(3)(b) of E and D Rules, 1973, requiring a reasonable opportunity to show cause to be given is a substantial provision of law and is intended to provide an opportunity to the accused officer to show-cause against action proposed to be taken and cannot be overlooked. Further the appellant did receive the show-cause notice sent to him through registered poston 22nd April, 1978 which fact lends support to his contention that was available at his known address. The appellant sent a reply to the show- cause notice dated 27th April, 1978 i. e. In less than 7 days.
10. ' It is further observed that the reply to the show-cause notice was available to the department much before the orders of dismissal dated 26th June, 1978 were passed by the authority on the Summary submitted by the department to the Governor/M. L. A. This summary did not indicate anything about the reply submitted by the appellant to the show-cause notice, with the result the authority could not consider the reply before passing the orders of dismissal.
11. ' It is, therefore, observed that the Authority may consider the reply as being within time and then pass appropriate orders.
12. ' The appeal is disposed of in terms of the above observations with no order as to costs.
13. ' JUSTICE MUSHTAk ALI KAZI (CHAIRMAN).-I had, the advantage of going through the draft judgment written by my learned brother. I agree with the view expressed by him. To clarify the issues, I would further add that it is patent on the face of the record that reasonable opportunity to show cause has not been given to the accused officer. The show-cause notice, dated 12th April, 1978 para. 11 mentions that the accused officer is allowed 14 days time from the date of issue of the notice for the reply and if it fails to reach during the time stipulated ex parte action would be taken. Under the Efficiency and Discipline Rules reasonable time for reply shall not be less than 7 days or more than 14 days from the date the charge or the notice has been "communicated" to him. The material date is, therefore, the date of communication of the notice and not the date of issue. In the present case the service was affected by registered cover posted on 20th April, 1978 and date o receipt was 22nd April, 1978. The show-cause notice was, therefore, communicated to the appellant on 22nd April, and time of 14 days should have been allowed from 22nd April, i. e. Till 6th May. The reply to the notice submitted by the accused was on or about 27th April, 1978. The reply was, therefore, received within time but the same was considered to have been received beyond time. Without considering the explanation regarding the charges, the action was taken ex parte by an order dated 26th June, 1978. The accused Officer was thus deprived of the reasonable opportunity to show cause. He was not even allowed to explain the charges personally. The Courts have always emphasized the right of the accused to show cause against the proposed action. Any deviation in this respect has been considered sufficient for-setting aside the final order of punishment.
14. ' In the famous 1. M. Lall" s case it was observed that when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service, he shall be so told and he shall be given an opportunity of putting his case against the proposed action ; and as that opportunity has to be a reasonable opportunity it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that action, and person concerned must be given a reasonable time to make his representation against the proposed action and the grounds on which it is proposed to be taken. In the case of Habib Khan v. Federation of Pakistan it was held that law confers a substantial right on a civil servant to show-cause and mere illusory compliance cannot meet the requirements of law. It has even been held that requirement of reasonable opportunity does not depend upon the Government servant asking for it. In the present case not only was the time given for the explanation insufficient, but when the explanation was received long before the issue of final order, it was not considered and no mention about it was made in the summary submitted to the authority. Under the circumstances, the right and opportunity to show cause appears to have been denied to the accused officer under the mistaken belief that date of notice and not communication of the notice is to be considered.
15. It may also be pointed out that the notification dismissing the appellant from service is dated 26th June, 1978 but he has been dismissed from service with effect from 25th April, 1978 i. e. With retrospective effect. It is only the Legislature that can give retrospective effect of what it ordains.
16. The executive authorities have only power to pass an order of dismissal having prospective effect.
17. Therefore, the order of dismissal would be valid and effective on and from the date on which it was passed. The order could not cover the period prior thereto being unwarranted in law and wholly invalid (PLD 1954 Dacca 607), Province of Punjab v. Khaliq Dad Khan .
18. ' The ex parte order of dismissal having retrospective effect is, therefore, set aside on both the grounds. The reply to show-cause notice not having been considered on the plea of having been received beyond time should now be considered by the authorised officer. He may also allow the option of personally hearing to the appellant. Thereafter a recommendation should be made to the authority afresh, considering the reply and the personal explanation, if any. The authority may then take a fresh decision keeping in view of the legal requirement of the order being prospective and not retrospective. The case is, therefore, remanded to the authorised officer, i. e. Secretary Education Department for complying with the legal requirements as discussed above. The appeal is disposed of accordingly with no order as to costs. . Case remanded. PLD 19,,48 P C 150 PLD 1954 Sind 199 PLD 1953 Leh. 2951 2 3 1 2 3