1. HAMZO KHAN M. KURESHI (CHAIRMAN).--,These three appeals arise out of the same order passed by the District Education Officer, Larkana (respon--dent No. 1) on 1-11-1973 terminating the services of all the three appellants. All the three appeals would therefore be disposed of by this single judgment. Copies of this judgment to be kept in each, appeal. The appellants were suspended by respondents No. I by his order dated 12-10-1973. After termination of their services they filed separate appeals before the Director of Education (respondent No. 2) but be declined to interfere en the plea that their services were dispensed with under the directive of the Government on account of their "anti social activities." They also filed appeals before the Secretary of Education Government of Sind but on receiving no reply from him for 90 days they filed their respective appeals before this Tribunal. All the three appellants are Head Masters of Primary School in Larkana District and each one has served the Department for ,note titan 28 years. They allege that the impugned order was passed without notice to them or any inquiry held against them hence it was illegal, arbitrary and without justification. They claim to be Teachers of merit with brilliant service record and consider--able literary tests. They further allege that they have been the victims of local political prejudices. In this connection they have pointed out that the copies of both orders (suspension and termination) were sent to Mr. Chakar Ali Junejo, President, Pakistan People's Party, District Larkana.
2. The respondents have contested the appeals. Their case is that the appellants were removed from service because they were found to be guilty of "subversive activities' which was reported to the Minister for Health, Law and Parliamentary Affairs, Government of Sind and superior officers of the appellants. They -have however failed to produce any proof to that effect in spite of our repeated demands. Not even an affidavit was filed by anybody in support of their contentions. No report of letter written by any officer of the appellants or even an, information received by him from any quarter is produced in evidence. Thus we are left with only the belated version of the respondents raised for the first time in their written statement. The learned A. A: G. contended in his arguments that no notice was necessary to the appellants as they were removed for "subversion."
3. It would be proper to reproduce the suspension order of the appellants dated :2-10-1973 and also the impugned order dated 1-11-1973 which termi--nated the service of the appellants, The suspension order reads as under :- "Under the instructions of the higher authorities, following teachers are suspended with immediate effect on account of their anti-social activities:
(1) Mr. Abdullah Atiq, Headmaster, G. P. School, Murad VVahan. Larkana.
(2) Mr. Nizamuddin Mahotto, Headmaster, G. P. School, Mahotta, Lar--kana.
(3) Mr. Roshan Ali Qureshi, Headmaster, G. P. School, Qubo Saeed. Shahdadkot."
4. The impugned order terminating the services of the appellants reads as under: "The services of the following Primary Teachers (now under suspension) are no more required by the Government with effect from the date of their suspension vide rule No. 4, Chapter-II of the Sind Civil Servants Ordinance, 1973 (1)Mr. Abdullah Atiq, Headmaster, G. P. School, Murad Wahan, Larkana.
(2) Mr. Nizamuddin Mahotto, Headmaster. G. P. School, Mahotta, Lar--kana.
(3) Mr. Roshan Ali Quresbi, Headmaster, G. P. School, Qubo Saeed, taluka Shahdadkot.
(4) Mr. Ali Ahmed son of A. Karim, Headmaster, G. P. School, Maqbool Shah, Taluka Ratodero."
5. Mr. Ali Ahmed mentioned in the last order has not filed appeal. It will be interesting to note that the copies of both the orders have been sent to one Mr. Chakar Ali Junejo, President, Pakistan People's Party, District Larkana. This supports the ycrsion of the appellants that they are the victims of local political prejudices. Ordinarily there was no reason to send a copy of the official letter to a private person until and unless he was interested in the removal of the appellant from service. Why the copies of both orders were sent to Mr. Chakar Ali Junejo, is not explained by the learned Assistant Advocate-General. This was an improper act on the part of respondent No. 1 and has given rise to a valid apprehension to the appellants. We need not further comment on the conduct of the District Education Officer, Larkana for sending the copies of the official letters to a private person who is not ordinarily supposed to interfere with the administration.
6. The contents of the first letter clearly indicate that the appellants were suspended on account of their "anti-social activities." Their services were terminated because they were "no more required by the Government." No reason whatsoever is given in the impugned order to show as to why the Government did not require their services or what were the allegations against them. Admittedly no notice or charge-sheet were issued to any appel--lants nor any inquiry held against any of them before their services were terminated. They were not informed as to what were the "anti- social activities" alleged against them. We further find that the written statement of the respondents is inconsistent with the above said two orders. It shows that the appellants were removed from service on account of their "subversive activities." Nowhere before filing the written statement is it shown that the appellants were guilty of "subversive activities". In the first order it is said that the appellants were suspended for their "anti-social activities." In the second order no reason is at all given for terminating their services. In the written statement the respondents have take absolutely a different stand. This shows that the respondents have no case. They have not applied their minds to the proper facts before removing the appellants- from service. We are inclined to believe that the written statement is an afterthought in order to cover the legal flaw of not issuing notice to the appellants before terminating their services.
7. It is an admitted position that no notice was served on the appellants before they were suspended on 12-10-1973 or before they were removed from service on 1-11-1973. It is also admitted that they are confirmed persons in their Departments each having not less than 28 years of service at his credit. The contention of the learned Assistant Advocate-General is that no notice was necessary for terminating the service of a civil servant on account of his subversive activities. We have held above that there was no material whatsoever on record to show that the appellants were at any time engaged in subversives activites. For the first time this plea has been raised in the writ--ten statement, which is inconsistent with the two relevant orders dated 12th October, 1973 and 1st November, 1973. The only allegation in the first order is that the appellants were suspended with immediate effect on account of their "anti-social activities". No mention is however made about be nature of the anti-social activities in which the appellants ha6 involved themselves. No one could be punished for such vague allegations particularly when he was not given any reasonable opportunity to explain his conduct.
8. During the course of arguments we adjourned the case for two hearings asking the A. A.-G. to produce any material available with the Department which may indicate that the appellants were responsible for any type of "anti-social or subversive activities". The A. A. G. however, was unable to produce any such evidence. He depended on the vague and dilatory allegations in the written statement that the appellants were engaged in subversive activities hence their services were terminated. No letter, report or the alleged information given to the honourable Health Minister Mr. - -Abdul Waheed Katpar, against the appellants was either mentioned in the written statement or made available to this Tribunal. The inconsistency in the written statement is not explained by the learned A. A.-G. nor any roof is produced in support of the averments made therein. The allegations P of subversive activities appear to be an afterthought with a view to avoid the mandatory requirements of notice laid down in Rule 5 of Civil Servants (Efficiency and Discipline) Rules, 1973.
9. This rule however, lays down that a civil servant is entitled to notice even for subversive activities before a major penalty is awarded to him. --- It would be proper to quote rule 5 of Sind Civil Servants (Efficiency and Discipline) Rules, 1973. It lays down as under.
10. Rule 5. "(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorised officer shall decide whether in the light of the facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or inquiry committee. It he so decides, the procedure indicated in rule 6 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry officer or Inquiry Committee, he shall.
(A) by order in writing, inform the accused any of the action proposed to be taken in regard give him a reasonable opportunity of showing cause against that action ''
11. Provided that no such opportunity shall be given where the authority is satisfied that in the interest of security of Pakistan or any part there of it is not expedient to give such opportunity:'
12. It is thus clear that even for subversion the Authorised Officer or the authority was bound to give notice in writing to the appellants informing them of the proposed action to be taken against them and the grounds for such action. They were also to be given a reasonable opportunity of show in cause against that action in case the authorised officer or authority did not find it necessary to have an inquiry conducted against them. No such notice or opportunity was necessary only when the authority was satisfied that it was not in the interest of "security of Pakistan or any pas thereof."
13. In this case there was no such allegation against any appellant. Only vague and unfounded allegations of subversive activities worn made against them a for the first time in the written statement. There is not even a mention anywhere on any document as to the nature of subversive activities in which the appellants had involved themselves. They are poor teachers of Primary Schools who have nearly reached the age of superannuating with no adverse remark or report against them during their entire service career of not less than 30 years. The charges of so called "subversive activities " levelled against the appellants in the written statement are not only vague in nature but they appear to be an afterthought. The suspension order says that the appellants were engaged in "anti-social activities" There is however, no mention regarding the nature of those activities. The allegations are of general and vague nature. The order of removal from service states that their services were no more required by the Government. Why were they not required is not mentioned in the order. No reason for such major penalty is given therein. The services of the appellants were terminated within 18 days from their suspension order without any notice, explanation or inquiry. This is contrary to the provisions of rule 5 quoted above. It is therefore, difficult to accept the version of the respondents given for the first time in the written statements which appears to be an after thought and with a purpose to ride over the mandatory provisions of rule 5 mentioned above. The procedure led down in Rule 5 was mandatory and the authorised Officer was bound to follow it as laid down in rule 4-A of the said rules. Rule 4-A reads as under: "4-A.-(1) if in the opinion of the authorised Officer, there are sufficient grounds for proceeding against the civil servant under these rules, he shall take action in accordance with the rule 5. "
14. Respondent No. 1 has failed to adopt the procedure laid down in rule 5 hence his order is illegal, void and in-operative having no force of law. Any order passed against the provisions of existing law is mala fide and without jurisdiction. We may further add that neither of the respondents has applied his mind to the case of the appellants at each relevant stage. Respondent No. 1 suspended the appellants under the instructions from higher authorities. Respondent No. 2 evaded his responsibility by simply saying that "proper authority to hear the appeal in your case is Government as your services had been dispensed with under the directive of the Government on account of your anti-social activities". After this reply the appellants approached the Secretary of Education, Government of Sind (respondent No. 3) but he chose to remain silent by making no reply to them. It is thus clear that no authori--ty bad cared to look into the case of the appellants and a great injustice has been done to them. Unfortunately they have been contemned un-heard on very serious charges, which could lead even to more serious consequences for them. This is against the rules, justice and equity.
15. The contention of the respondent that the action was taken against the appellants under rules 3 and 4 of the Sind Civil Servants (Efficiency and Discipli--nary) Rules 1973, is not tenable. Rule 3 only lays down the "grounds for penalty" whereas rule 4 lays down the description of the "minor and major penalties" which could be imposed on a civil servant. How those penalties would be imposed is laid down in rule 5. How the Inquiry would be conduct--ed is prescribed in rule 6. Rule 4-A makes it incumbent on the authorised officer/Authority to adopt the procedure laid down in rule 5 for taking action against a civil servant when in his opinion there are sufficient grounds for proceeding against him. According to rule 5 the authority or the authori--sed officer were bound to give notice to the civil servant and offer him a reasonable opportunity of showing cause before removing him from service for acts of "subversion, corruption or misconduct." We do not agree with the contention of the learned A. A.-G, that no notice was necessary in case of subversives activities. In this case the allegation of subversive activities is vague, rnala fide and an afterthought. No specific act of subversive activities is attributed to any appellant at any stage of his service nor any such note, report or remark is produced before us to substantiate these averments though we granted 3 hearings to the learned A. A: G. to do so.
16. We, therefore, find no substance in the contentions of the respondent& and set aside the impugned order. We accordingly allow the appeals of all the 3 appellants. The appellants would be deemed to be on duty from the order of their suspension viz. 12-10-1973 and would be entitled to all service benefits as were allowed to them before they were placed under suspension. Each party is left to bear his own costs.