JUDGMENTMalik Muhammad Parvez Khan, Chairman.-- Appellant has assailed the impugned order dated 27.2.1988 vide which his services were terminated by respondent No.1 and appeal to respondent No.2 had not been answered by him within the statutory period.
2. According to him he was employed as a Chowkidar in Govt.Girls Primary School, Nalla/Soha by respondent No.1 vide order dated 14.10.1987. He worked efficiently and honestly till he received the impugned order dated 27.2.1988 for his termination and the appointment of respondent No.3 in his place as Chowkidar. He moved the Divisional Director of Education, Hazara Division; Abbottabad for his redress vide appeal dated 5.3.1988, which was returned to him on 11.5.1988 with the direction, that he should move the proper forum to obtain his goal, so on the very day he preferred an appeal to respondent No.2 which was not answered by him within the statutory period; hence the present appeal on the grounds, that the order passed by respondent No.1 is illegal, void, wrong and against the principles of natural justice, that it was passed at the behest of an MPA who does not figure in the rules. On the basis of the above, it was prayed that the impugned order may be set aside by re-instating the appellant in service.
Claim of the appellant was hotly resisted by the respondents on the grounds that the appellant has got no cause of action, that the appeal is in-competent, that the appellant is estopped by his own conduct, that the appeal is barred by time, that the appellant cannot approach the Tribunal directly, that the concerned MPA has not been impleaded as a party and that the service of the appellant being temporary, he cannot challenge the termination order before this Tribunal. Further it was alleged by them that the appellant was appointed as Chowkidar on the recommendations of the concerned MPA and after receiving the complaints of the inhabitants of the locality as well as of the concerned Headmistress, the appellant was not considered fit to be posted in a girls school, his services were, accordingly terminated after an enquiry was conducted by Assistant Sub-Divisonal Education Officer on 3.2.1988 on the spot.
3. Learned counsel for the appellant argued that the appellant was dismissed from service without serving him with the show cause notice at the direction of the MPA concerned. The order is accordingly uItra vires of the rules, void and illegal and not binding upon the appellant. If an enquiry was conducted by the A.S.D.E.O, it was done in absentia and this enquiry also is in-effective upon his rights for want of charge sheet and summary of allegations etc. The departmental appeal was filed to the Divisional Director of Education Hazara on 5.3.1988 which was returned to him on 11.5.1988 and the appellant moved the appeal to the proper forum on the same day and approached this Tribunal on 17.7.1988 and the appeal was posted to 8.10.1988 for preliminary hearing, therefore, the appeal cannot be treated as premature.
3. On the other hand learned counsel appearing for the respondents argued that the appellant is bound by the agreement/appointment order in which, it was clearly stated that his services are liable for termination at any time without any notice. He cannot now object to this condition, when at the beginning accepted this obligation. There were complaints about him and his retention in a girls school would have become nuisance and a problem for the department.
4. We have considered the arguments and perused the record. The termination of service without show cause notice is illegal uItra vires and void, notwithstanding the fact that a man is working temporary or on probation. At least he must be apprised on the wrong committed by him for which he is going to be penalized by the authority. Service of notice is a mandatory condition whether it is contained in the special enactment meant for this purpose or not. It is against the principles of justice and the Islamic law as well. The allegation against the appeals was that his retention in service was nuisance for the public and the department. He could be easily transferred from that school to some other school or suspended and during this period a proper enquiry should have been conducted against him. Department haphazardly initiated the impugned action against him which no law on the earth encourages. For such like matter there is no period of limitation. The appeal is accordingly accepted and the appellant is re-instated in service from the date he was dismissed along with all back benefits. Parties are left to bear their own costs and file be consigned to the record room.