' MUHAMMAD RAZA KHAN (MEMBER).---This judgement will also dispose of the connected Appeals 294, 295 and 296(K) of 1998 being identical on facts and legal issues.
2. The appellants were appointed on daily wages in 1992-93 and they were regularized on 2-1-1995.
On 11-5-1996 some of them were allowed advance increments for better education. However, vide the impugned order dated 9-8-1997 their services were terminated and the amount paid with salary to them from 2-1-1995 to 30-6-1996 was ordered to be recovered. After seeking departmental remedy on 5-3-1998 the present appeals have been filed on 23-5-1998.
2-A. The department contested the appeals. Comments were filed. We have listened to the arguments. In these cases the action has been taken against the appellants without any notice to them. The principle of natural justice is considered to be a part and parcel of every statute and appellants have been condemned unheard as they were never asked to explain their view-point prior to the issuance of impugned order. The respondents have stated that there was a lot of irregularities in the appointments of the appellants. Firstly they were appointed during the ban period. Secondly that the appellants did not possess the required minimum qualification and thirdly, that they did not qualify the departmental examination which was necessary for regularization of employees. Fourthly, it has been stated that the regularization has been ordered under the pressure of the Labour Union as the order of regularization has not been conveyed by the officer concerned' to the Accounts Branch or to the PMG etc. We are of the view that firstly, the appellants were not at all responsible for all these activities and if the department has not cared to follow the law or the instructions, the appellants cannot be penalised for the fault of the department. Secondly if The appointment was made during the period of ban, the person violating the ban instructions can be proceeded against but the person who has legally acquired vested rights cannot be deprived of his rights merely on the grounds that he was appointed during the period of ban. Thirdly, with regard to qualification etc. It may be stated at least one of the appellants has been granted advance increment for possessing higher qualification than the required one for the initial recruitment. However, if there was any deficiency in the educational qualification while the competent Authority not only appointed them but also regularised them, must have considered the relaxation of certain conditions. However, any overlooking by authority does not justify the reversal of the order without a show-cause notice. Similarly the failure to qualify the departmental examination cannot be made the basis of the extreme penalty' without notice.
Regarding the pressure of union it may be reiterated that this Tribunal has held in several cases that the department and that too like the. Postal Department should have the courage enough to withstand the pressure from extraneous agencies or internal bodies. If they can surrender to the pressure then they cannot be considered to be the competent to protect the trust that is imposed in them and which is considered to be the motto of these departments. Even otherwise if an order which was within the competence of the authority is passed by such an authority, the same will be considered to be valid despite the background of the pressure that has been exerted to get a particular result.
3. The appellants have also referred to a discrimination that actually there were four employees and action was taken against three of them is a discrimination against them by allowing the 4th one to continue the service.
4. The comments have been filed by the department which has laid a lot of stress on the point that the M.S. T. Division has been abolished and that the PMG, Quetta has become the proper party in this case, hence the plea of non joinder was taken. We have examined this issue. The appointment order as well as the confirmation order was passed by the Divisional Superintendent of the MST Division. A gradation list was circulated wherein the name of the appellants were mentioned as regular employees of the Department by the same Division and even the impugned order was passed by the said Division, hence the said Division was a necessary party. The appellants may not know the internal arrangement of the department or the abolition of a particular post or branch or a Division. Hence the appeals were properly filed. However, if the respondents had any re- organization, the persons or the authority who has succeeded the said Division should have contested the case on behalf of his predecessor-in-office and his name should be substituted for such respondent. However, the objection of non joinder is never fatal to the civil matters.
5. The extreme action was taken against the appellants admittedly without show-cause notice or any opportunity of hearing, even salary paid A for the period when they actually worked, has been ordered to be recovered. This order of recovery of paid salary is in any case a gross violation of the doctrine of locus poenitentiae and particularly when the persons have duly performed their services.
6. However, there is a vital defect in these appeals. The impugned orders were passed on 9-8-1997 and the departmental appeal could be filed within a period of 30 days thereafter, which has not been filed. Even if the same had been filed and not decided by the department, the appellants could approach this Tribunal within the period of 120 days of the filing of such departmental appeal within 30 days of 9-8-1997, and thus, the maximum period of filing of the appeal was 8-1-1998. The appeal filed on 23-4-1998 was barred by time in any case. No application for condonation of delay had been filed alongwith the memo. Of appeals as is apparent from the index thereof. An application has been filed on 20-6-1998 and that too without any explanation of the lapse of period from 8-1-1998 to 23-4-1998. Hence in view of the afflux of time the relief could not be provided to the appellants.
7. In such a situation, we dismiss these appeals. However, the order for the recovery of salary contained in the impugned orders was purely a void order and the same cannot be upheld and accordingly that portion of the impugned order is set aside. No order as to costs. Parties be informed.