' MUHAMMAD RAZA KHAN (MEMBER).---The appellant was offered the appointment in PIA on 21-1- 1996 which was accepted by the appellant and he joined on 1-2-1996. He was confirmed as Medical Officer in Pay Group-VI w,e,f, 1-2-1996 by an order dated 24-9-1996. Thereafter, without any charge-sheet, inquiry or even a show-cause notice a termination order was issued on 20-3-1997.
The appellant filed a suit before the Sindh High Court and the impugned order dated 20-3-1997 was suspended on 24-3-1997. The said suit was still pending when the amendment in the Service Tribunals Act was made on 10-6-1997 and hence the present appeal was filed on 27-8-1997. The main contention of the appellant is that he was in the confirmed employment of the Corporation and he could not be terminated without adopting the proper procedure. Even the formal show- cause notice has not been issued which was not only violative of the principles of natural justice, as held by the Supreme Court, to be considered as part and parcel of every statute, but was also the cardinal principles of Islamic Jurisprudence. The Federal Shariah Court has also discussed the principle in several judgments and the decisions of the Federal Shariat Court have been upheld by the Shariah Appellate Bench of the Supreme Court and hence the said verdict has attained the status of legal provision. It has been argued that the charge against the appellant was regarding his appointment without the process of application through advertisement and without competition the appellant replied that the respondent Corporation never adopted the practice of any advertisement and all the appointments are always made on the basis of application received and considered as and when the occasion arises.
2. Learned counsel for the respondent argued that the record of the department proves that a Special Selection Board was constituted for the appointment of the appellant and a lot of deficiencies were pointed out like that of the non-publication of advertisement non-availability of vacancy and deficiency in experience and, therefore, in view of the directive from the Government dated 4-3-1997 (for review of such cases) the action has been taken. It was further argued that since it was a termination simplicitor and not the imposition of penalty having the effect of any stigma on the appellant, therefore, the show-cause notice was not necessary. The learned counsel further stated that the contention on behalf of the appellant that some other appointees are still allowed to continue and, therefore, there has been discrimination was not available and no right of the appellant was infringed.
3. We have examined the record. This Tribunal has expressed its view in a couple of similar cases earlier and the reasons mentioned therein can be read as supplemental to this judgment.
However, in addition thereto we may like to mention that in this case there are two additional points specially argued and more relevant to the facts of the present case. The one is the requirement of show-cause notice and the other is the practice of publication of advertisements.
In the other cases of employees, whose services were dispensed with by the respondents after issuing a show-cause notice to them exists an anticipation that particular result will follow and merely to honour the direction of the learned High Court of Sindh the formality was fulfilled.
However, in the instant case the respondents have not cared to issue even that type of a show- cause notice despite the general observations of the High Court in this behalf. The requirement of a show-cause notice is in built in the system of Islamic Jurisprudence. Even Almighty Allah, has the knowledge of everything in Universe as He is{{ARABIC TEXT}}with the power of having the knowledge of whatever thought flashes in the heart of a person {{ARABIC TEXT}}. But despite all these supreme qualities and opportunity of hearing was provided to "Satan" before the imposition of penalty on him. There is not a single sentence in the entire judicial history of Islam that any person would have been condemned unheard thereby a principle was derived that justice may not be done but it should appear to have been done. Every matter is to be adjudicated upon in a transparent manner after providing an opportunity of hearing to a person who is likely to be adversely affected by such adjudication. In the case in hand the show-cause notice was not given even when the High Court had stressed the need for giving the opportunity of hearing to all those who were adversely affected.
4. It was held in the "Judges appointment case" by the Supreme Court that every word used in the Statutes or in the Rules has a special meaning with special import and the words in legal terminology are not used to denote only a formality and, therefore, it was held that the word "consultation" used in the Constitution meant the effective consultation and not the mere formality.
Similarly we notice that the show-cause notice to be issued in such like cases must satisfy its purpose and should not be a mere formality. For example in the present case the main charge stated against the appellant, in the impugned order of termination are the irregularity in the appointment, because the appointment was made without having the publicity through advertisement and, secondly that it has been made without competition on merit. If the proper opportunity of hearing is afforded, the appellant will have a right to ask how many advertisements were issued during the past 20 years, or even during the entire history of the respondent Corporation particularly inviting applications from the medical officers. Whether all the medical officers presently working in the respondent Corporation, appointed prior to the appointments of the appellant or thereafter, were selected through the process of advertisement or otherwise?
Whether the opportunity of competition was provided in any other case and if so to what an extent? I am reminded of a complaint filed in the Wafaqi Mohtasib's Secretariat whereas complainant had alleged that he wishes to become a Flight Steward but every time he enquires about the appointment process he is told to wait for the public advertisement and after waiting for a couple of years he collected the information and found that hundreds of them have been appointed without a single advertisement or even a formal notice. Although the said complainant could not become a Flight Steward but he was a moving encyclopedia of all the information about the manner as to how the appointments were made of certain people and how it was refused to others. If a proper inquiry is conducted, even the Enquiry Officer of the department itself will certainly be amazed of the statistics. After affording such an opportunity the department will certainly have a right to take action against any person who has achieved the appointment without the process of filing application after advertisement or without any general competition. In such an inquiry even the Enquiry Officer or even the Authorised Officer or the Authority will also have an opportunity of looking at their own appointment and the method adopted for it. In, short the impugned order was passed on two grounds and both the said grounds could not be proved as an illegality on the part of the appellant but still the respondent Corporation had the guts to stamp the appointment order as "void ab initio". .If this order was void, we are sure that 90% appointments of all the employees in the Corporation are also void ab initio. In brief, such a major decision was taken without issuing a show-cause notice.
5. The term "void" is a legal term used either in 'the law of contract or in Islamic Law relating to marriage. This term is normally used when a grave illegality has taken place which could not be rectified by any legal process. The term "void" or {{URDU TEXT}} is used in contradistinction with the term "irregular" or {{URDU TEXT}}. The former being entirely illegal cannot be rectified and the ensuing result is {{URDU TEXT}}. Whereas the latter one suffers from a minor defect and it can be rectified. These facts have been constantly alleged in the arguments of similar cases and documents have also been produced without any rebuttal. The author of the impugned order of termination should have considered the meaning and the effect of the term "void ab initio". The use of this term in the impugned order denotes that there was such an illegality which was unprecedented in the personnel history of the Corporation whereas, a stated hereinabove, 90% appointments in the Corporation are based on the same process. So, as very strong word has been used for a matter of routine practice.
6. We have gone into a long discussion in the above paragraph merely to show that the term "void ab initio" could be used only when there was a grave illegality. The non-publication of an advertisement could be said to be an irregularity at the most and even then the appellant was not the person to issue the advertisement or in any manner responsible for such an "illegality" or irregularity. Hence he cannot be penalised for the actions of the others particularly when the irregularity has not only been implemented and enforced but at time of the appointment the deficiencies or irregularities were duly relaxed by the competent Authority. Thereafter, the appointment was also confirmed and hence the same respondent who had not only relaxed the deficiencies and irregularities but had taken a further step of confirming the appellant shall be stopped to turn around and hold the appellant responsible for the follies of the administration.
Thus, we have no alternative but to hold that instead of appointment being void the termination order based on such reasons was a void order on legal, religious and factual grounds.
7. The respondents, in their written comments had the courage to say that since the impugned order was a termination simplicitor without any stigma and the appellant was at liberty to apply as and when the advertisement was issued for such a post again and, therefore, they are of the view that no show-cause notice was necessary in this regard. As stated earlier the department has not developed the culture of making any appointment as a result of advertisement and, therefore, the appellant as a result of such termination shall have not opportunity to be selected after the due process of competition and advertisement. However, even otherwise the said argument was a novel one. A regular confirmed employee was being shnuted out of his service without show-cause notice and yet the department innocently comments that there was no stimgma or penalty and hence impugned order was a harmless piece of paper containing termination simplicitor. As stated by Justice (R) Sardar Muhammad Iqbal, Wafaqi Mohtasib (Ombudsman) of Pakistan that the "entire mal-administration shall be rooted out of the society if the administrator develops an attitude of placing himself in the shoes of the person whose fate was being decided by an order signed by him." Had the officer, for a shortwhile visualized himself at the place of the appellant at the time of signing the impugned order of termination, he would have thought twice before signing the letter and before giving the comments that it was a termination simplicitor. If such a termination simplicitor without any stigma of penalty is issued in name of such officer what will be his re-action? Thus we are of the opinion that even in "termination simplicitor" an opportunity of natural justice had to be followed and that too effectively and meaningfully as discussed hereinabove.
8. Thus, in view of the above discussion we accept this appeal set aside the impugned order being "void ab initio" for having been isued in flagrant violation of the principles of natural justice. Costs to follow the event parties be informed.