JUSTICE (RTD) MUNAWAR ALI KHAN, (CHAIRMAN).--The appellant, Muhammad Zardad, was a Driver, when he was removed from service vide order of the Deputy Commissioner and B.N Karachi West, dated 27.8.1989, following an enquiry held under Sind Civil Servants & Efficiency and Discipline)
Rules, 1973, hereinafter referred to as the said rules. The enquiry was held on written complaint of the Chowkidar, Mian Khan, alleging that the appellant was found stealing a ceiling fan from the office of the Chairman, District Zakat and Usher. The Assistant Commissioner and Site, Karachi West, held the enquiry and submitted his report holding the appellant guilty of the charge. On receipt of the recommendations, of the authorised officer which was obviously based on the enquiry report, the Deputy Commissioner passed the impugned order referred to above. The appellant preferred departmental appeal against the said order to the Commissioner who by his order dated 13.12.1990 rejected the same. Within thirty days of the Commissioner's order, the appellant has filed the present appeal.
Mr.Z.U. Ahmad representing the appellant and learned A A. G. were heard in support of their respective view points. We also went through the relevant documents.
2. The learned counsel for the appellant attacked the impugned order saying that it was passed in excess of jurisdiction and we completely void. Elaborating his view-point, he submitted that as required by the relevant rules neither a show-cause notice was given to the appellant nor any charge-sheet was served on him and therefore, the subsequent proceedings in the shape of so- called enquiry had no legal backing and were void. No further submitted that the appellant was not supplied with a copy of the enquiry report nor was given any opportunity to explain his defence in the light of the findings arrived at by the Enquiry Officer In support of his arguments he referred to para 3 of the written statement. Of-course in the said para, it is admitted that "no charge-sheet was formally served upon the accused official/appellant by the authorised officer as required under Rule 6(1) of the Sind Civil Servant (Efficiency & Discipline) Rules 1973.... ". Apart from this, the contents of para 6 of the Memo of Appeal have been admitted in para 5 of the written statement.
Para 6 of Memo of appeal reads as under:- "6. That it is an admitted fact that on the aforementioned written complaint, respondent No.2 neither called the appellant to explain nor issued any show cause notice detailing therein the allegations against the appellant. No charge-sheet was also drawn against the appellant nor supplied to him."
As for enquiry report, the plea taken by the appellant is para 8 of the memo of appeal is; Besides no enquiry report was given to the appellant. Instead the memo was sent to the respondent No.2, who, without calling upon him to show cause as to why he be not dismissed be passed without any affording opportunity the impugned order of dismissal against the appellant on 27.6.1989......." The reply to this plea continued in para 7 of the written statement, is obviously indicating clearly that neither copy of enquiry report was applied to appellant no he was given any opportunity to explain his defence in the light of that report. Even the learned AAG was constrained to concede that the requirement of the relevant rules were not complied with and as such he was of the view that this is the fit case to be remanded back to the concerned authority. Deposit such stand on his part he raised a objection of limitation and desired the Tribunal to dismiss the appeal on that ground.
3. To have carefully considered the learned AAG's objection. Admittedly, the appeal filed before this Tribunal has been within the because it was filed on 7.1.1991 i.e within thirty days of the Commissioner's order rejecting the appellant's departmental appeal on 13.12.1990. He however, submitted that departmental appeal was filed after undue delay of nine months. This objection should have been raised before the Commissioner because it was the appeal filed before him that was delayed and not the appeal before this Tribunal. Obviously the Commissioner's order of rejection is not speaking order and therefore we have no reason to interpret the same as having been beside entirely on the question of limitation. We therefore feel that the objection of the learned AAG should not stand in the way of the appellant. In any case, the learned counsel for the appellant in reply to his objection has placed reliance of Supreme Court authority reported as PLD 1976 S.C. 37, wherein the view taken was that impugned order passed in excess of jurisdiction of authority passing the order was void and therefore failure of the party adversely affected to go in appeal against such order within prescribed the did not preclude such party from challenging its legality in High Court, because order which is null and void docs not require to be set aside formally.
Having over-ruled the learned AAG's objection, with regard to limitation, we subscribe to the views, expressed at the bar on both hands that this is a fit case for remand. Accordingly appeal is allowed and the impugned order is set aside with no order as to costs. The case is remanded back to the Authorised Officer concerned with direction to proceed afresh, in case there is sufficient material to prove the charge/allegation of theft against the appellant, in accordance with the provision of the said rules.