JUDGMENTDR. A.Q.QAZI (MEMBER). -This order shall gevern and dispose of appeal No.33 of 1988 filed by Mr. Abdul Majeed Khan against the final appellate order of Chief Secretary by which he rejected his departmental appeal.
2. Briefly stating the facts, Mr. Abdul Majeed Khan was working as Lecturer in English at Government Islamia Science College from 1970 to 1978 when a recruiting delegation of Nigeria selected the appellant for appointment as Education Officer-I in Nigeria. It is the case of the appellant that he tried his best and made several visits to Director of College Education as well as the Secretary Education requesting him to grant Ex- Pakistan (foreign) leave. This leave was not granted and as against this he decided to join his assignment in Nigeria. It is further plea of the appellant that he continued to request his present department i.e. Department of Education at Karachi for maintaining his lien in the department and when he had no response in the matter, he requested the Secretary, Cabinet Secretariat, Establishment Division, Islamabad for taking-up the matter with the Government of Sind. It is also his pica that the Deputy Secretary to the Government of Pakistan vide his letter No. 10/1/80 Coord, dated 2,9.1980 requested the Chief Secretary, Government of Sind to take necessary action in the matter. It is further pleaded that appellant on return to Pakistan submitted an application on 3rd December, 1986 requesting the Department to allow him to join duty. He has further complained that the Education Department instead of examining his case decided to remove him from service retrospectively w.e.f. 1.10.1978. The main grounds of defence for his petition are that he did not receive any show cause notice and that no attempt was made through Embassy of Pakistan in Nigeria for serving upon him the showcause notice and that his being declared as absconder from 1978 is unlawful and he has been condemned unheard. In the end he has prayed for setting aside the order.
3. On the part of the Government it has been stated that he left the country without getting his leave Ex-Pakistan sanctioned and that he was liable for termination. It is further averred in the written statement that he remained absent for a period of eight years and as such he had no more relation with the department. It is stated further that he was issued a show cause notice which he did not care to reply. He was also issued a showcause notice through the press of which no reply was received. He was accordingly removed from service.
4. Following points arose for determination at this Tribunal;(1) Is he a deserter absconder and liable to disciplinary action?(2) Was a proper show-cause notice issued to him and proper opportunity of showcause provided him?(3) Is the removal order, declaring him absconder and removing him from service retrospectively, valid and legal?
5. Having laid down the points for determination, we shall examine these in seriatim. We shall deal with point one. It is an admitted position (see Para-2 of appeal) that the appellant had requested for leave Ex-Pakistan for serving in Nigeria. Since he was not granted leave he decided to join his new assignment in Nigeria on his own. There can not be two opinions on this question of fact that he had left Pakistan without obtaining prior sanction of the leave and joined his new assignment in Nigeria and as such he had deserted his duty and rendered himself liable for disciplinary action under the Sind Civil Servants (E&D) Rules of 1973.
6. Now we come to point No.2 for determination regarding the service of the notice. From the arguments advanced at the bar and the record made available to us it would appear to us that Mr. Abdul Majeed Khan who had taken te foreign assignment at Government Teachers Training College, Ndele, P.M.B. 160, Ahoada, Rivers State, Nigeria, has been sending some application for granting him a lien. We find such application dated lst January, 1979 and one more such application to the Secretary, Cabinet Secretariat, Establishment Division, Government of Pakistan which is dated 15th May, 1980 and which has been received at the Secretariat on 10.6.1980, copies of which have been endorsed to the Secretary Education, Sind Secretariat, Karachi. The Director of College Education, Karachi and the Prinicpal of Government Islamia Science College, Karachi. This application appears to be forwarded by Deputy Secretary to Government of Pakistan to the Chief Secretary to Government of Sind for information and necessary action. We therefore have no hesitation to believe that the department was well aware of his address in Nigeria and the show cause notice stating the allegation of desertion from the duty for declaring him absconder could be mailed to him on his proper address or even through Pakistan Foreign Mission in Nigeria. We can not accept the plea of the department which they have taken in their written reply, that the address of the appellant was not known to them.
7. It is the plea of the department that it had no prior knowledge of the appellant's address in Nigeria. This plea has been reiterated in the removal order. From the arguments advanced in para- 6, we are very clear that the letter from Cabinet Secretariat to the Chief Secretary Government of Sind had been received by the Chief Secretary as early as in September 1980 of which his department was fully aware and this letter carried the foreign address of the appellant. This position simply can not be controverted. It became incumbent upon Education Department to pick up from this point immediately and start the process under Efficiency & Disciplinary Rules of 1973 (which had not been started till such time). This was not done, and it would further appear to us that department slept over this matter till 21st August, 1982 (nearly two years after) when it published a notice that appeared in the English Daily 'Dawn' of the same date. This is not fair. It was the duty of the department to serve, a proper show cause notice with small statement of allegations, on the appellant on his foreign address which was known to the department by this time. Skipping of this stage was fatal. Had the appellant chosen not to reply, stage would have been mature to advertise his absence, as was done as late as on 21st August, 1982., We find an inportant ingradient missing all through, that is giving him a proper opportunity to show cause and hearing him through reply to the show cause.
8. It would appear to us from record that the department again slept-over the matter till such time as he would return and submit an application for joining his duty. Even at this belated stage a proper show cause notice with a statement of allegation could have been given to him and he could have been called upon to reply. This was not done and he was not heard in person at the very last stage even. Instead the Government chose to declare him absconder and terminated his service. We therefore concluded that proper opportunity of show-cause for taking disciplinary action against him has not been provided to him and more so when he has not been heard in person on his return from Nigeria and before his services were terminated. In short he has not been provided enough opportunity to show cause.9. Now we come to final point for determination i.e. The validity of the order of removal. This order is being reproduced on toto;Government of Sind, Education and Culture Department, Karachi, dated the 6th May, 1987. NOTIFICATIONNO. S.O. (E-II) 2- A(201)/79; Whereas Mr. Abdul Majeed Khan, Lecturer in English, Government Islamia Science College, Karachi joined his appointment in Nigeria without any sanction of the Government to the effect, he was treated absconder since 1.10.1978.And whereas the Show Cause Notice was served on him but no reply was received;And Whereas Mr. Abdul Majeed Khan did not leave behind his foreign address a final show cause notice was served on him through the newspapers directing him to report for duty;And whereas on his return from Nigeria he has admitted in his application the charge of leaving for Nigeria without obtaining approval of the Government;Now therefore in pursuance of the orders of the Competent authority/Mr. Abdul Majeed Khan is removed from service with effect from1.10.1978 the date he was treated absconder.(Syed Abbas Hussain Shah),Secretary Education and Culture.This order prima facie is patently illegal for the following arguments;1) This order does not correctly state the facts and;2) That it has punished the appellant retrospectively by declaring him as an absconder and removing him from service w.e.f, the date of his being declared as absconder as early as 1978.We can only say till no proper legal notice was served on the appellant and reply received from him in respect of his absence his being declared as absconder in 1978 can not be a legal fact. Also that the removal order of 6.5.1987 which purported to remove Mr.Abdul Majeed from service w.e.f.1.10.1978 is retrospective in nature and can not be sustained in law.10. Now that we have answered all points for determination we conclude and help that the service of the show-cause notice on the appellant can not be held good as has been pleaded in his removal order. We further conclude that his removal order is patently illegal as the punishment has been awarded retrospectively which is barred in law. As a result of the above conclusion we accept the appeal with no order as to costs and set aside the order of removal of.The appellant dated 6.5.1987. If the department so chooses it may proceed against the appellant afresh strictly in accordance with Sind Civil Servant Act and Efficiency & Disciplinary Rules, 1973.
Ordered accordingly.
Given under our hands and the seal of this Tribunal on this 28th day of February, 1989 at Karachi.