' RANA BHAGWANDAS, J.---Petitioners seek leave to appeal against Sindh Service Tribunal (hereinafter referred as the Tribunal) judgment, dated 4-9-2001, allowing respondent's appeal against his compulsory retirement from service on account of alleged misconduct and ordering his reinstatement in service.
2. Respondent, while serving as Junior Clerk (BPS-9) in the Directorate of Social Welfare Sindh, was served with a Show-Cause Notice on 14-12-1999 by petitioner No, 1 i,e, Deputy Director Social Welfare, Sukkur Division, accusing him of misconduct and calling upon him to submit his explanation within 14 days. He was directed to submit his explanation to Inquiry Committee consisting of Messrs Ghulam Murtaza Kolachi and Sardar Ahmad Gaddani, Social Welfare Officers.
Mirpur Mathelo, failing which ex parte decision would be taken, against him. Respondent submitted a detailed explanation to the Show-Cause Notice, which culminated in the departmental order passed by petitioner No,1, ordering his compulsory retirement from service with immediate effect vide order, dated 8-4-2000. He submitted a departmental appeal against the impugned order within time but it was not responded. He then filed Service Appeal before the Tribunal, which has been allowed as aforesaid.
3. Mr. Suleman Habibullah, learned Additional Advocate-General Sindh, appearing in support of the petition, raised two-fold contentions firstly that the Tribunal while setting aside the departmental action fell into error of law by observing that the Authority could not act as authorized officer while passing major punishment of compulsory retirement from service. His next submission was that the case of the respondent entailing major penalty was required to be heard by a Full Bench of the Tribunal consisting of its Chairman and two Members but the respondent's appeal was heard by Chairman and a Single Member, without there being any material on record that the second Member was incapacitated from joining the sitting of the Tribunal on the date of hearing. In the opinion of the learned Law Officer, Tribunal misinterpreted Rule 4-A of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 and acted without jurisdiction in deciding the appeal involving imposition of major penalty.
4. Conversely, Mr. M.L. Shanani, learned Advocate Supreme Court for the respondent defendant the impugned judgment on the premises that, while Authority under the Rule could exercise the powers of Authorised Officer, latter could not act vice versa. As regard the constitution of the Bench of the Tribunal, Mr. Shahani urged that this point was never agitated before the Tribunal and has not been specifically raised in the memo of petition.
5. We have carefully considered the submissions of both the learned counsel and regret to observe that none of them was fully equipped to assist us as to which of the two petitioners was notified as Authority under the relevant Rules for proceeding against the respondent and as to whether petitioner No,1 could assume the powers of the Authority in addition to acting as Authorised Officer, inasmuch as, show-cause notice was issued by him, Inquiry Committee was constituted by him and even the final order was passed by the said petitioner. As to the constitution of the Bench, Rule 23(c) of the Sindh Service Tribunals (Procedure) Rules, 1974 reads follows:-- "(23) Subject to the general or special orders of the Chairman-
(a) .....
(b) .....
(c) an appeal against an order, imposing any major penalty under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, or relating to confirmation, promotion, retirement, pension and gratuity, pay including additional pay. Technical pay and special pay and honoraria shall be heard by the Full Bench consisting of three members."
6. No doubt Rule 24 provides for exceptional situation where a Member of the Tribunal for any reason is not able to sit on the Bench, no material has been placed on record to indicate as to under what circumstances appeal of the respondent was heard by the Chairman and a Single Member. In order to verify this position, we suggested to the learned counsel for the respondent that we would like to call for comment's from the Chairman of the Tribunal but he was adamant in insisting upon his view-point that since no objection was taken to the constitution of the Tribunal it may be presumed that the Tribunal was constituted, acted with jurisdiction. We are afraid, we cannot subscribe to this narrow interpretation of the judgment and irrespective of the fact whether this ground was taken in the memo. Of petition or not, would like to observe that exceptional situation must be spelt out from the record rather than recently accepted on erroneous assumptions.
7. In the peculiar facts and circumstance, we are inclined to convert this petition into appeal, set aside the impugned judgment and remand the appeal to the Tribunal for fresh decision on merits, strictly in accordance with law. Hopefully, the Tribunal shall make utmost endeavours to decide the appeal on merits as expeditiously as practicable.