' AKBAR M. MEMON (MEMBER).---Appellant hereinabove has challenged the order dated 14-1-1999 passed by respondent No,2, whereby his service was terminated and name was struck off from the roll of Pakistan Steel with effect from dated 29-12-1997. The order in question is reproduced hereunder: (page 75, A/16)
"In pursuance of K.M.C.'s relieving Order No . Admn/SC/Estt/1124/1997 dated 221 1-1997 and S&G Administration Order No,SOX (S&GAD) 5-28/94, dated 2-12-1997 repatriating Mr. Aslam Pervaiz Soomro, Junior Officer (P.No,148202) of R.M.H.D., Pakistan Steel back to Pakistan Steel, he has neither reported for duty at Pakistan Steel nor there is any information from his side. His Deputation period of three years has also expired on 29-12-1997. His name, therefore, automatically stands struck off the roll of Pakistan Steel with effect from 29th December, 1997."
2. Mr. Sanaullah Noor Ghouri, learned counsel for appellant, has contended that the appellant joined the respondent as apprentice on 27-11-1977. He was lastly working as Junior Officer when he was sent on deputation to Provincial Government through respondent No, 1 on 29-12-1994 for a period of three years. He has contended that the appellant then joined respondent No,6 as per joining report dated 3-5-1995 (A/6). While serving, Government of Sindh, cheques were being sent towards his monthly contribution as a result of deduction, which amount was being received by the respondent No,2. He has contended that on 12-11-1997 the appellant was ordered to repatriate to respondent No,4 for further posting where the order of his repatriation was passed on 2-12-1997 (page 71, A/14). However, on 20-1-1998, the relieving order dated 22-11-1997 was withdrawn (page 73, A/15), whereafter the impugned order was passed. On coming to know about the termination, the appellant filed appeal for withdrawal of the termination order on 4-2-1999 (Page 79, A/18), on which he was given personal hearing vide letter dated 28-4-1999 and finally the request of the appellant was not acceded to vide letter dated 11-5-1999. At the same time, a letter from the Services and General Administration Department was also sent to the respondent No,2 on 14-4- 1999 for withdrawal of the termination letter along with service certificate showing therein that the appellant had worked with Karachi Metropolitan Corporation till 6-2-1999, but to no effect. Finally the appellant filed his departmental appeal on 18-5-1999, which met with rejection order, hence this appeal.
3. Mr. Ghouri has contended that the appellant had gone on deputation to Government of Sindh with the consent of Ministry concerned and, no doubt, he was ordered to repatriate, but the said order of repatriation was withdrawn, as such, he worked there upto 6-2-1999, therefore, it will be incorrect to say that the appellant was absconding, which culminated in his termination from service. He has contended that the respondents had received remittance upto December 1998, as such, the order dated 4-1-1999 is void and is without lawful authority. At the same time, he has contended that the executive order cannot be passed with retrospective effect. Touching the rules of Pakistan Steel Officers Service Rules and Regulations, he has contended that under rule 2.6 the appellant was an officer on deputation and he was to be dealt with under the rules, but nowhere it is mentioned that during the period of deputation, he could have been terminated in the manner in which the present appellant has been dealt with. He has also contended that the termination order is void in view of Serial No,35 of ESTACODE at page 221 (1983 Edition). He has contended that neither show-cause notice was issued nor the respondent had made any inquiry from the borrowing department about the whereat outs of the appellants. In such circumstances, he has contended that the order being void is not sustainable in law, as such, the same be set aside and the appellant be reinstated in service with all back benefits. In support of his contentions, he has placed reliance on 1999 PLC (C.S.) 655, 1996 SCMR 201, 2002 TD (Service) 41 and 2001 SCMR 300.
4. Mr. Niaz A. Khan, learned counsel for respondent has admitted the fact that the appellant was sent on deputation under the orders of Federal Government. At the same time, he has contended that he was ordered to repatriate, but he did not join the respondent in 1997 and in case the order of his repatriation was withdrawn by respondent No,6, the same was not within the knowledge of respondent. He has contended that in case the remittance was being made, it would not validate the order, which expired in 1997. He has contended that the contention of learned counsel that executive order cannot be given retrospective effect is not tenable in view of the law laid down by Hon'ble Supreme Court reported in 1998 PLC 500, as period from which the particular incumbent was absent was to be taken into consideration and not the date of order. Lastly he has contended that the authorities cited by the learned counsel for appellant are not applicable to the facts of the present case, as such, appeal is liable to be dismissed with costs.
5. Mr. Ghouri, learned counsel for appellant, in reply, has argued that the impugned order was passed by the incompetent authority because rule 6.33 makes a mention in respect of Junior Officer, which is Director/Principal executive concerned department and in case of the . Appellant the impugned order at page 75, Annex-A/16 was passed by Acting General Manager (A&P).
6. After hearing the arguments of learned counsel appearing for the parties, we have gone through the entire appeal file and so also the authorities cited by the respective advocates.
7. It is an admitted fact that the appellant, while serving with the respondents was sent on deputation to Government of Sindh under the orders of respondent No,1 for a period of three years.
The appellant joined Government of Sindh on 3-5-1997 and during this period remittance in respect of deductions from his pay were being sent regularly to respondent Nb.2. Finally the appellant was relieved' vide relieving order dated 22-11-1997 (Annex-A/13 page 69) and as a result thereof he was ordered to repatriate to his parent department viz. Responded No,2. It will be beneficial for the disposal of this appeal to reproduce the repatriation order (Annex-A/14 page 71):- - "In pursuance of Karachi Metropolitan Corporation's Relieving Order No,Admn/SC/Estt/1124/1197, dated 22-11-1997, Mr. Aslam Pervaiz Soomro, Junior Officer (Personal No,148202) R.M.H.D., Pakistan Steel, Ministry of Industries & Production, Government of Pakistan, is hereby repatriated to his parent department, the Pakistan Steel, Karachi, with immediate effect."
After the issuance of the said repatriation order, the respondent No,6 withdrew the relieving order of the respondent on 20-1-1998. This order is also reproduced hereunder:-- ' KARACHI METROPOLITAN CORPORATION No, ' Admn/SC/Estt-721998 dated 20-1-1998 ' SUB: RELIEVING ORDER.
' Relieving order No,Admn/SC/Estt-1124/1997, dated 22-11-1997 of Mr. Aslam Pervaiz Soomro, is hereby withdrawn.
(sd). DIRECTOR ADMINISTRATION K.M.C.
' MR. ASLAM PERVAIZ SOOMRO, DEPUTY DIRECTOR LAND K.M.C.
' Copy for information and necessary action:--
(1) Senior Director Land K.M.C.
(2) Director Finance K.M.C.
(3) Director Computer K.M.C.
(4) Assistant Director LFA K.M.C.
DIRECTOR ADMINISTRATION K.M.C.
' Copy to Section Officer-X, Services & General Administration Department, Government of Sindh, for information. It is to kindly extend his deputation period for further two years.
' DIRECTOR ADMINISTRATION K.M.C.
' Copy to Deputy Coordinator (Operation-1) to the Senior Minister for Local Government and Katchi Abadis Department, Government of Sindh, for information.
' DIRECTOR ADMINISTRATION K.M.C.
It is pertinent to bring it on record that repatriation order dated 2-12-1997 was within the knowledge of respondent No,2. But the second order dated 20-1-1998 whereby his repatriation was withdrawn was not communicated to respondent No,2. In this regard we observe that it was lethargy on the part of the borrowing department due to which they could not intimate the respondent No,2 about the withdrawal of the repatriation order and in case it was not done by the borrowing department then it was also the duty of the appellant to have informed his parent department that his repatriation order has been withdrawn. It is, however, surprising that the respondent No,2 went on receiving the remittances till December, 1998, which payment was sent by cheque drawn on H.B.L., K.M.C. Branch, as is evident from letter dated 7-1-1999 (page 51 Annexure A/11 available on file), then too, ignorance was shown by respondent No,2 about the whereabouts of the appellant. In case respondent No,6 or even respondent No,4 on account of their lethargic attitude had not intimated about the withdrawal of the repatriation order, then it was also the duty of respondent No,2 to have made inquiry about the appellant when he did not join his parent department, in spite of the fact that remittances were being received.
8. Coming to other merits of the case, we are of the considered view that the respondent. No,2 had acted in unusual hasty manner and instead of issuing him show-cause notice, straightaway the impugned order was passed by an incompetent authority in violation of rule 6.33 of Pakistan Steel Officers Service Rules and Regulations. It is also pertinent to bring it on record that when the appellant approached the respondents for recalling the termination order on production of the material documents including the service certificate, his case was not considered. Even the borrowing department, respondent No,4, had also requested the responded No,2 for withdrawal of the termination letter, on which the appellant was given personal hearing and a second order was passed on 11-5-1999, therefore, the appellant again filed departmental appeal on 18-5-1999, which met with a rejection order dated 25-8-1999 whereafter the present appeal was filed on 29-9-1999.
No doubt, the respondents have not taken this plea, but we feel it our duty to make such mention.
Even otherwise, in case of absence of the appellant wrs treated by the respondent to be misconduct, then the respondent No,2 was legally bound to give such show-cause notice to the appellant, which has not been done in this case and straightaway termination order has been issued without any just cause particularly when the amount of deduction was being received by them through cheques till December, 1998. This action on the part of the respondent No,2 speaks of unusual haste, and a corporation of such a repute is not expected to pass such orders, which directly hit the career of a person like the present appellant. Thus, with great concern, we observe that such type of hasty act will not be repeated in future.
9. In view of the above discussion, the order of termination passed by the respondent No,2 dated 4- 1-1999 and so also the appellate order dated 11-5-1999 are not liable to be sustained. Accordingly, we, while allowing the appeal, set aside both the orders dated 4-1-1999 and 11-5-1999 and direct the respondents to reinstate the appellant in service on the same post from which he was terminated with all back-benefits, provided the appellant files an affidavit with solid proof that he did not work for gain anywhere else during this period.
10. In the circumstances of the case, there will be on order as to costs. Parties concerned be informed accordingly.