JUSTICE (RTD) MUNAWAR ALI KHAN, (CHAIRMAN), - This appeal arose from compulsory retirement of appellant, Nusratullah, Assistant of the Sind Secretariat vide order of the Chief Secretary, Govt, of Sind, dated 27th March, 1988. The appellant was working as Assistant in Home Department when he was transferred to the Finance Department. In compliance of the transfer order, he was relieved from the Home Department by office order of that Department dated 21st February, 1985. Instead of joining in the new Department, he applied for casual leave for the said date which was granted to him. Even, after expiry of the casual leave he did not turn up to resume his duties in the Finance Department. According to the appellant's version, he was suffering from Broncoities and Asthama which took a severe turn compelling him to apply for more leave. In this way he kept on sending leave applications which however remained un-responded. His own admission is that he kept away from duty until the impugned order of his compulsory retirement was passed on 27th March, 1988.
2. In the meantime departmental action was initiated against the appellant and as a first-step show-cause notice dated 14th April 1985 was issued to him and was sent on his residential address available in the office. Same how the said notice returned un-delivered. It was followed by another notice which was published in the Jaily Jang, dated 24th April 1985. That to remained unanswered.
Consequently the impugned order was passed which was however received by the appellant and was challenged in the departmental appeal before the Chief Minister. After the appeal was rejected by the Chief Minister, the appellant filed the present appeal.
We heard the arguments of Mr. Hasan Akbar on behalf of the appellant and Mr. Abdul Ghafoor Mangi, AAG, with their help we also went through the necessary documents.
The learned counsel for the appellant in course of his arguments laid great emphasis on the proviso to sub-rule (4) of rule 5 of the Sind Civil Servants (Efficiency and Discipline Rules 1973 (hereinafter referred as the said rules) which according to him was not complied with. The said proviso reads as under:-- "Provided that the authorized officer shall, subject to proviso to sub- rule (3), before imposing minor penal or recommending imposition of a major penalty as the case may be, by notice accompanied by a copy of the enquiry report, if any, intimate the accused of the aforesaid penalty and grounds therefore and call upon him to show cause within a forting of the notice why the proposed penally should not be imposed or, as the case may be, recommended and the reply, if any, to the said notice shall be taken into consideration before imposing or recommending a penalty."
3. The notice mentioned in the above proviso was to be issued after receipt of the accused official's explanation, if any, or the enquiry report as the case may be and before imposing of the penalty.
The requisite notice was no doubt compulsory in. The normal circumstances. But this is a case of ex parte proceedings. In present case even the original show-cause notice was returned unserved.
Since the said notice was not served on the appellant, the authorities rightly gave him another notice through press. It appeared in the Daily Jang dated 24th April, 1985. The necessary extract from the said paper had been laid before us. We have gone through it carefully. But it appears to us that the text of the notice, appearing in the press is very sketchy, not being the reproduction of the notice sent to the appellant by post. In fact he should have been fully posted about the details of the charged against him and also the penalty proped to be inflicted on him in case of his failure to turn up to contest the charges. Since the appellant's whereabouts were not known, as the original notice issued to him returned undelivered, the authorities had obviously no choice but to resort to substituted service. In that case there being no guarantee that the notice issued by way of substituted service would be responded and the appellant's explanation would be forthcoming, it was necessary not ony to apprise the accused official about the details of the charges he had to meet but also in pursuance of the proviso relied upon by the learned counsel for the appellant, inform him about the penalty proposed to be imposed upon him. The notice issued through press did not meet these requirements and therefore in our opinion it was legally defective. Apart from above it is also intriguing for us to see that after the notice appeared in the press, no further action was taken for nearly three years. The notice appeared in the press on 24th April, 1985 while the impugned order as passed on 27th March, 1988. Of course the appellant remained absent from duty all along but at the same the we have no explanation from the other side why the case remained dermant for three long years.
4. For the above reasons we are inclined to the view that this is a fit case to be remanded back to the Authorized Officer concerned for fresh proceedings. Accordingly the appeal is accepted and the impugned order is set aside. The case is remanded back to the Authorized Officer concerned directing him to start the proceedings afresh strictly in accordance with the provisions of the said Act. Meanwhile the appellant will remain under sus-pension until finalization of the proceedings.
Given under our hands and the seal of this Tribunal this 2nd day of July, 1990 at Karachi.