1. ' ABDUL RASHEED MEMON (MEMBER-II).---The appellant came before the Tribunal after being aggrieved by the order of his dismissal on 9-4-1999 received by him on 14-4-1999 whereby his earlier reinstatement was withdrawn and he was dismissed from service with the following facts.
2. His departmental appeal had also been turned down.
3. ' Facts of the case are that the appellant was appointed as Store Keeper in Sindh Agricultural Supplies Organization but subsequently renamed as Sales Inspector. The appellant during his whole tenure of service performed his duties to the best satisfaction of his superior and lastly he was posted at Khaipur where without any rhyme, reason or justification he was served with a charge-sheet on 29-1-1989 by the District Agricultural Supply Officer (DASO) containing false and frivolous allegations, that while heading over the charge of Bulk Depot, Khairpur the stocks of fertilizers handed over to his successor and were underweight to the extent as shown in the said charge-sheet. He submitted his reply on 31-1-1989 wherein he denied the charges and said that while handing over the stocks no shortage of any sort was recorded. That he had already cleared his position vide his reply dated 5-12-1988 and 10-11-1988. On the observations raised by the Authorized Officer alongwith solid proof as according to him he had received those stocks as underweight and had intimated the authorities of this fact and that no action was taken an those complaints. That in the meanwhile on 23-4-1989 an F.I.R. Was lodged against the appellant for misappropriation of fertilizer which was the subject-matter of the said charge-sheet. The appellant, had been challaned in the Court of Special Judge Anti-Corruption, Sukkur where he was facing trial. However his reply to the charge-sheet was not found satisfactory and a Fact-Finding Enquiry was conducted in which his statement was also recorded but as alleged by him he was not shown any record pertaining to the said misappropriations nor any witness was examined in his presence. Besides the appellant was not provided with the opportunity of cross-examining the witnesses, if any, examined by the said Enquiry Committee. However it was after three years of the said charge-sheet that the appellant was served with final show-cause notice dated 20-12-1992 by the Managing Director, SASO containing allegation, besides those as in the earlier charge-sheet because the same contained much more details of defalcation and the total amount as worked out was Rs,51,19,703. He replied to the said final show-cause notice on 10-1-1993 denying the allegations and also clarified the entire position. On 2-3-1993 he was required to appear before the Managing Director/Authoritised Officer for personal hearing where he appeared and submitted a further petition. That to the surprise of the appellant, he was dismissed from service by the Managing Director, vide order, dated 5-6-1994. He agitated the matter before the Minister Agricultural/Chairman, SASO whereupon he was re-instated in service vide order, dated 28-1-1998 and was allowed to join service and was lastly posted as Sales Inspector Bulk Depot, Khairpur.
4. However, he received Office order, dated 9-4-1999 whereby his reinstatement was withdrawn by the SASO Board and he was again dismissed from service. He preferred departmental appeal on 10-5-1999 to the SASO Board but no action was taken. Whereupon he came before this Tribunal with the prayer that the orders of his dismissal may be set aside and the respondents be directed to re-instate the appellant in service with all back benefits and continuity of service.
5. The respondents in their written statement objected to the maintainability of the petition as having not been competently filed, that the order of dismissal of the appellant dated 5-6-1994 had attained finality. That the order of re-instatement of the appellant passed by the then Chairman, SASO was beyond his jurisdiction, perverse, capricious, illegal, suffering from laches, coram non judice and against Public Policy. That the departmental appeal, if any, was incompetent, time- barred and not maintainable. That no cause of action has accrued to the appellant to file the present appeal.
6. ' On facts of the case respondents have stated that the record of the appellant had not been free from blemishes as earlier also minor penalty was imposed upon him vide letters dated 2-9-1984 and 20-9-1984 by the Deputy Director, SASO, Sukkur and DASO, Khairpur. That the appellant was charge-sheeted on account of being guilty on gross criminal misconduct, being involved for defalcation and misappropriation of SASO stock as per details given in the charge-sheet and final show-cause notice. That his replies to the said charges were not found satisfactory. However, an enquiry was conducted by an Enquiry Committee which submitted its report vide letter, dated 18- 2-1992 whereby the appellant was found to be involved in defalcation of SASO stocks amounting to Rs,21,38,791.60 alongwith the then DASO, Khairpur. The reply of the appellant having not been found satisfactory and the enquiry dated 18-2-1992 had found the appellant guilty of misappropriation of SASO stocks alongwith Mr. Muhammad Bachal Bharejo, the then DASO, Khairpur. This enquiry was conducted in the presence of the appellant who fully participated and was afforded full opportunity of defence. That on receipt of the Enquiry Report the appellant was issued final show- cause notice and the reply of the appellant was given due and proper consideration and was found to be unconvincing and implausible yet in accordance with the provisions of law and justice he was provided the opportunity of personal hearing. During the personal hearing the appellant miserably failed to rebut the allegations and to satisfactorily clarify his position. Whereupon the penalty of dismissal from service was imposed upon him vide order, dated 5-6-1994. However, the appellant was re-instated vide order, dated 28-1-1998 i,e, after about four years of his dismissal, but the said order of re-instatement was against the public policy, illegal, in violation of law, perverse, in excess of power, motivated by malice and beyond jurisdiction as Chairman was not vested with the power to review his own orders after lapse of almost four years when these were fully acted upon. Thus rendering the same without jurisdiction, without legal effect, nullity in law and legally invalid. Thus his re-instatement being mala fide and without lawful authority having no sanction of law, the same was struck down and thus his re-instatement order was withdrawn by the SASO Board. The action of SASO Board was perfectly legal, valid and within powers and in exercise of judicious jurisdiction. Thus they have contested the averments of the appellant to be false, incorrect and mala fide, therefore they have vehemently submitted that the present appeal was without any cause of action. The same being not maintainable under the law as well as on merits is liable to be dismissed. They, therefore, demanded that the appeal may be dismissed with costs.
7. ' The Advocate of the appellant while arguing the case assailed the penalty imposed upon the appellant as illegal and beyond jurisdiction and that the charge-sheet issued by the Authorised Officer who was himself accused in the present appeal was not maintainable. Besides the averments as raised in the appeal have also been highlighted pointing out the technical deficiencies including that as F.I.R. Was also lodged against the appellant was still pending. That according to the appellant no enquiry was held but if any was held he was not allowed to participate or cross-examine the witnesses. That the final show-cause notice was issued after three years by the Managing Director as Authorised Officer. That the copy of Enquiry Report was not supplied. That the final show-cause notice contained more details, than the charge-sheet.
8. Personal hearing was not given. And that approval of the Authority was not obtained while issuing the dismissal order, dated 5-6-1994. That he was rightly reinstated by the Chairman, SASO and that no further order could be passed, thereafter on the point of locus poenitentiae and in the light of following decisions of the Honourable Supreme Court:--F.
(1) PLD 1969 SC 406;
(2) 1997 SCMR 15;
(3) 1999 PLC (C.S.) 106;
(4) 1999 PLC (C.S.) 1160;
(5) 2000 PLC (C.S.) 349.
9. ' He also contested that before withdrawing re-instatement order, no show-cause notice was issued. Hence the order was in violation of natural justice and section 24(b) of the General Clauses Act. Thus it was in violation of natural justice and liable to be set aside in the light of following citations:-
(1) 1984 CLC 2782;
(2) 1985 PLC (C.S.) 711;
(3) 1996 SCMR 856 ' That the departmental appeal of the appellant had not been considered and that the SASO Board had no authority to withdraw the order passed by the Chairman in view of the following decisions:- -
(a) 1984 PLC (C.S.) 238;
(b) 1993 SCMR 1440;
(c) 1997 SCMR 1543;
(d) 1996 PLC (C.S.) 868.
10. ' Thus he agitated the action and requested the Tribunal to grant the prayer of the appellant.
11. ' Muhammad Moosa Leghari, Advocate of the SASO pointed out that in this case when the appellant was dismissed from service all the formalities were completed. The charge-sheet was issued to him by the Authorised Officer. However, on the basis of reply of the appellant it was construed that the Authorised Officer was himself involved in the said act of defalcation whereupon the matter was enquired into by a Board of Enquiry wherein the appellant was fully associated as is evident from the report of the Enquiry Officers which fully associate the appellant and consequent upon the said enquiry it transpired that the present appellant, Mr. Muhammad Bachal Dharejo the then DASD, SASO, Khairpur and Mr. K.B. Sial, Deputy Director, SASO, Sukkur were all responsible for the said act of defalcation; whereupon different penalties were imposed upon these three officers vide order, issued by the Managing Director, SASO and Authorised Officer because the senior most, officer involved in the said matter was of the status of Deputy Director, SASO (BS-18). That the Authority competent in this respect was Board of Directors and the matter was decided by the said Authority whereupon the order of dismissal was issued. Thus the proceedings against the accused were finally concluded on 5-6-1994 and that the appellant did not move any Competent Authority/Tribunal but simply went to the Chairman, SASO and got his re-instatement in 1998. Thus he was illegally and mala fidely re-instated in service. However, the said order of the Chairman, SASO, was reviewed by the Board who had the jurisdiction to do so and accordingly the order of the penalty i,e,, dismissal from service was maintained and the order of re-instatement was withdrawn. Thus the respondents were fully competent to take the lawful actions by way of withdrawing a wrong order, which did not attract the rule of locus poenitentiae as the powers of SASO Board were illegally taken over by the then Chairman and exercised against the interest of the Board. Thus a wrong had been rectified and no wrong had been committed.
12. Issuance of any show cause at that stage was, as such, not required. Thus the appeal of the appellant was time-barred and that no appeal was liable to the Tribunal at this stage. Therefore, he requested that the prayer of the appellant may be dismissed and costs be awarded to the respondents for these proceedings.
13. We have gone through the record of the case and the citations quoted by both the sides and have come to the conclusion that the proceedings against the appellant were properly conducted and that he was rightly dismissed from service on account of defalcation to the extent of an amount of Rs,21,38,791.60 alongwith then 'District Agricultural Supply Officer, SASO, Khairpur (Muhammad Bachal Dharejo). And that the charges were successfully proved against them and that the said proceedings terminated in 1994 with his dismissal, which he did not agitate before any Competent Authority/Forum. Consequently re-instatement in service after four years by the Chairman, SASO (Minister for Agriculture) appears to be mala fide and rightly contested as without lawful authority, having no sanction of law, in excess of jursidiciton, capricious, perverse, incompetent and in derogation of settled rules and principles of law, against public policy and also against the interests of the public authority and the trust of which was in the hands of the then Chairman and Minister of Agriculture. We also hold that the order of, his re-instatement was rightly withdrawn by the SASO Board and the penalty of dismissal was maintained. Thus the plea of appellant that the proceedings against him were unlawful and that after his re-instatement a vested right had been created and that subsequent action against him was without legal sanction and not maintainable under the principles of locus poenitentiae, mala fide as an illegal order by the Chairman, SASO was withdrawn by the SASO Board which does not provide any right to the appellant as a wrong done earlier had been rectified subsequently by judicious action of the SASO Board.
14. ' For the foregoing reasons the present appeal is dismissed with no order at to costs.