KARACHI TRANSPORT CORPORATION vs IQBAL AHMED MEMON AND Another

ORDER

1. ABDUL KADIR SHAIKH, J.-This is a petition for special leave to appeal from the judgment of the Federal Service Tribunal dated 22nd February, 1982 by which appeal of Iqbal Ahmed Memon, first respondent herein, was accepted and the order of his removal from service was set aside.

2. Iqbal Ahmed Memon was appointed in December, 1972 as Assistant Marketing and Stores Officer, in Grade-16, in the Sind Road Transport Corporation. He was removed from service by the order dated 12th May, 1979 which reads as follows: OFFICE ORDER (1)Mr. Iqbal Ahmed Memon Designation Dy. Controller (P/S) of Karachi Transport Corporation, Karachi, is hereby removed from service of this Corporation under the provisions of Corporation Employees (Special Powers) Ordinance, 1973, with effect from 13th May, 1979.

(2) The aforesaid officer will be struck off the strength of the Karachi Transport Corporation Karachi with effect from 15th May, 1979.

(3) One month's pay shall be paid to him in lieu of notice.

(4) The Officer may collect notice pay and other dues, if any, on pro--duction of clearance certificate.

3. (Sd.)

4. Brig. (Retd.)

5. Managing Director, (S. S. A. Qasim)"

6. After his representation to the President against this order was rejected, Iqbal Ahmed Memon filed an appeal to the Federal Service Tribunal which succeeded as stated earlier on the grounds that may be usefully stated by reproducing the relevant portions of the judgment of the Tribunal. These read:- "From the testimonials and certificates issued by his former employers, which have been filed by the Appellant, it is seen that, wherever he worked, his performance was found to be satisfactory and that his employers generally spoke highly to him. Thus, his appointment to the S. R. T. C., as Assistant Marketing and Stores Officer to Grade-16 would not appear to be undeserved. As regards his performance in the S. R. T. C., and later in the Karachi Transport Corporation, to which he was transferred on bifurcation of the S. R. T. C. It is seen that, on 18-2-1979, the Managing Director forwarded an -application from the Appellant to the General Manager, Pakistan Steel for the post of Manager Storts/Purchase, with the remark that the official was highly experienced and his case was strongly recommended for the appointment applied for. It is, thus, seen that the Appellant was not only a very experienced person but that has services were appreciated by the K. R. T. C. Itself, whose Managing Director even recommended him for a fairly high job in Pakistan Steel. As against this, respondent No. 2, in his written objections claimed that the appellant had proved himself to be incom--e patent to shoulder the responsibilities entrusted to him. Apart from the fact that no record was produced in support of this claim, the anomaly that, only a few months before the removal of the officer on the basis of his incompetence he had been recommended for the job of Manager in Pakistan Steel, remains unexplained. The conclusion is inescapable that the finding that the officer was incompetent was not, arrived at after proper evaluation of his merit and demerits......

7. Although the affected employees need not be given any prior notice or informed of the reasons for the action taken, since neither this Ordi--nance, nor any other law, debars the jurisdiction of the Tribunal in respect of such cases, the Tribunal cannot absolve itself of the respon--sibility of satisfying itself that action under this particular provision of law is not taken otherwise than in consonance with the letter and spirit of the law---.

8. It is clear that all the facts, relevant to the appellant's case were not before the concerned authority when the impugned order was passed. On this ground alone, the impugned order is assailable and we are of the view that, in view of the past experience and set vice of the appel--lant, his removal from service, on the ground of incompetence, is difficult to uphold or justify. To add to this is the fact that, according to the Managing Director of the Corporation himself, the officer was highly experienced and fit for appointment as a Manager in Pakistan Steel. In this context, it is difficult to appreciate how, only within three months, the same Managing Director found it necessary in the public interest to terminate the services of this officer. In these circum-- stances, we cannot believe that the decision for termination of the services of the appellant was taken by the competent authority after due application of mind."

9. Mr. Talmiz Burney, learned counsel for the petitioner submits that the appeal to the Service Tribunal was not maintainable in view of the bar c6n-- tained in proviso (b1 of subsection (1) of section 4 of the Service Tribunal Act, 1973, and in any case the Service Tribunal has erred in taking the view that the competent authority did not apply its mind to the relevant facts and circumstances of the case.

10. The first submission has no force, for, the bar of appeal referred to is against "an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade". The appeal in the present case was against an order of removal of petitioner's service and was not barred by the aforesaid provision of law.

11. The second point raised has also no substance, for, the ~ view of the Tribunal is based on the record placed before it by the parties, and nothing has been produced before us to show that the finding of the Service Tribunal is wrong or incorrect in any respect. The Tribunal has held that all the facts relevant to the appellant's case were not before the concerned authority when, the impugned order was passed, and that "we cannot believe that the decision for termination of the services of the appellant was taken by the competent authority after due application of mind". In the light of these findings no fault can he found with the Service Tribunal in taking the view that on this ground alone the impugned order was liable to be set aside.

12. There is no merit in this petition and it is accordingly dismissed.