RAHAT SAEED KHAN Versus GOVERNMENT OF THE PUNJAB
S. ABDUL JABBAR KHAN (CHAIRMAN) . ‑Rahat Saeed Khan, Mechanical Foreman (Night Shift), Government Weaving and Finishing Centre, Shahdara Lahore has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order, dated 7th May, 1981 passed by the respondent No. 2 terminating the services of the appellant. He has impleaded the Government of the Punjab through Secretary Industries; Civil Secretariat, Lahore the Director of Industries and Mineral Develop ment, Punjab, Poonch, House, Lahore and the General Manager, Government Weaving and Finishing Centre, Shahdara, Lahore, as respondents.
2. By virtue of this appeal be has prayed that the impugned order be set aside and he be re‑instated in service.
3. Brief facts of the case are that the appellant was appointed as Mechanical Foreman (Night Shift) vide order, dated 2nd March, 1981 by Mr. S. A. S. Kirmani, General Manager, Government Weaving and Finishing Centre, Shahdara. The appellant submitted his joining report on 1st March, 1981 and No‑Objection Certificate was obtained from Govern ment of Punjab on 14th April, 1981. On 7th May, 1981 he was informed by Ch. Abdur Rehman, General Manager, Government Weaving and Finishing Centre, Shahdara that his services stood terminated as he did not fulfil the requisite qualification, this was done without giving him any notice. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. It has been argued by the learned counsel that the appellant was appointed in accordance with the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with West Pakistan Industries Department (Government Weaving and Finishing Centres) Subordinate Technical Service Rules, 1965, on regular basis therefore, his services could not be terminated without giving him any notice or taking a recourse under the E. & D. Rules. Learned counsel has challenged the order as void ab initio, as being violative of Punjab Civil Servants E. & D. Rules, 1975. Learned counsel has further argued that the appellant did not conceal any facts about his qualification with his application and he was recruited on the strength of N. 0. C. provided by the S. O. W.
1. I.
1. S & G A D, dated 13th April, 1981.
5. Learned counsel has further pointed out that in case of Abdul Majid and Mushtaq Ali no action has been taken against these officials and even with lesser qualifications than the appellant (as they were only Matriculate with no practical experience) have been re‑instated in service. Thus, the act of the respondent is discriminatory, therefore, having no legal value. He has relied this case on the ruling of the Supreme Court of Pakistan in case of Raja Muhammad Nawaz, in which their Lordships of the Supreme Court have held that once an official has been promoted or inducted into the service on permanent basis, vested right is created in his favour which cannot be taken away by any authority on the principle of locus poenetentiae and animus revertendi. On the other hand learned District Attorney has submitted that the appellant is not maintainable on the ground that no representation was made to the higher authorities which would the Director of Industries in this case and the representation filed by the appellant to the Secretary, Industries would be of no avail to him. Learned District Attorney has further argued that by adopt ing the para-wise comments filed by Ch. Abdul Rahim, General Manager (respondent No. 3) and submitted that as the appellant did not fulfil the requisite qualification, a fact which came to the notice of the competent authority although at some later date, therefore, he would not be entitled to claim any relief in this behalf.
6. We have given our anxious thought to the contentions so raised by the parties before us and find that the appellant filed an application before the General Manager Competent Authority in this case on 1st March, 1981 in which he declared that he passed his Matriculation Examination from the Board of Secondary Education, Lahore in 1968 and also secured Diploma Course in Textile Weaving from the Government Weaving and Finishing Institute, Shahdara, Lahore in the year 1974. He further disclosed that he joined Crescent Textile Mills Faisalabad as a Weaving Supervisor and remained there for about one year. He also informed the competent authority that he worked as Weaving Supervisor for one year in Colony Textile Mills, Multan. It was further stated by him that at the time of making application he was working in Burewala Textile Mills, Burewala as Assistant Weaving Master for the last four years. With all this information which was fully provided to the competent authority, the competent authority after taking into con sideration all the facts of the case, passed the order of his appointment on 2nd March, 1981 by which the appellant was appointed on permanent basis as Mechanical Foreman (Night Shift), Government Weaving and Finishing Centre, Shahdara, Lahore, in the grade of Rs. 370‑16‑514‑18‑640 plus usual allowances as admissible under the rules. This appointment order does not mention that the appellants' service was either on ad hoc or temporary basis. What the appellant was required to do was that he had to produce certificate of fitness and was to be governed by such rules and orders allowing leave, T. A. and Pension as being issued by the Govern ment for the category of Government servants to which the appellant belongs. The appellant accepted this appointment order and joined the Institute accordingly. The competent authority also required N. O. C. from S & G A D for filling up of this post, thus the appellant became full-fledged employee of the Government with no rider of any sort. The appellant provided medical fitness certificate as well as Secondary School Certificate. He also provided to the competent authority his qualification which he has attained through a certificate from Department of Industries and M. D. Punjab, Government Weaving and Finishing Centre, Shahdara which declared the appellant having passed his test in Textile Designing, Textile Calculation, Weaving mechanism and preparatory and practicals. We also find that the appellant was awarded a certificate of good conduct and of his professional abilities by the Cresent Textile Mills Ltd., Colony Textile Mills Ltd., where he worked to the satisfaction of his superiors. It is also on the record that the Management of the Textile Mill, Burewala promoted the appellant as Assistant Weaving Master in Weaving Depart ment in Grade IV scale of pay Rs. 550‑.50‑750‑75‑1500 w.e.f. 1st April, 1979. There is also certificate on the record as Annexure 'K' that Mr. Mahmud Ahmad Khan, General Manager, Burewala Textile Mills Ltd. stated that the appellant possessed sound knowledge of his profession as well as mechanical workshop and is honest and industrious. According to Annexure `L' the appellant was in possession of a Certificate issued by Chairman, Research and Development Committee which certified that the appellant when sponsored by Burewala Textile Mills Ltd. attended a course of Loom Shed Supervisors and had completed his training successfully.
7. With all this data on the record the competent authority which appointed him, cannot be said to have overlooked these documents. Competent authority made the appointment with open eyes taking into consideration the qualifications and fitness of the appellant in his profes sion. In this manner it cannot be said that the appellant concealed the facts about his antecedents or in any way defrauded the competent authority and thus got the appointment order in his favour in a clandestine manner. In view of the circumstances the appointment of the appellant by the competent authority was a fait compli as no exception should have been taken to it by the successor of the competent authority in office.
8. We have also satisfied from the record that Messrs Abdul Majid and Mushtaq Ali were still in service with this organization and do not possess any Diploma so required under the rules, a stand taken by the respondents and were only Matriculates without any additional qualifications.
9. It is a settled law that when a person is holding a regular appointment and has been working in that capacity and if at all some action is to be taken against him with regard to the terms and conditions of service, it would be incumbent upon the competent authority to call upon him to show cause, with regard to the action so proposed against, him. In the case of the appellant who was holding the post with better emoluments at the time of his induction into this service with Burewala Textile Mills Ltd., he has been thrown on the road without any fault on his part by the act of the respondents who has nullified the order of his predecessor Mr. S. A. S. Kirmani who passed the said order consciously taking into consideration all the documents so appended by the appellant with the application. It was quite convenient for Mr. S. A. S. Kirmani to tell the appellant at the time when he applied for the post in question that he was not a qualified person according to the rules laid down, and should continue where he was. The impact of the case of Raja Muhammad Nawaz v. Government of the Punjab would be fully applicable as the right for the appellant has been created by the act of the competent authority and appellant cannot be allowed to suffer for the mistake if at all of an authority, which was competent to pass the order under the rules.
10. We also cannot remain oblivious of the fact that a different yardstick has been used in case of the appellant whereas in case of Messrs Abdul Majid and Mushtaq Ali no action has been taken to disturb the status, under section 10 of the Punjab Civil Servants Act, 1975, the services of the appellant cannot be terminated unless and until it is ad hoc or temporary post, without notice by the competent authority. Rule 4(b)(iii) provides the scope for removal of civil servant from service and rules 5, 6 and 7 laid down the procedure for the same. The observation of rules 5, 6 and 7 is pre‑condition for taking action under rule 8 after afford ing the employee of an opportunity of being heard in person and pass such order as the competent authority deems fit.
11. In view of the above we are of the considered opinion that the impugned order, dated 7th May, 1981 is an order void ab initio, passed in violation of the mendatory rules so laid down in this behalf, therefore, the same cannot be maintained.
12. With regard to the legal objection taken by the learned District Attorney in connection with the failure of the appellant to exhaust the re medies so available to him with the higher authorities it would be sufficient to say that he did file his appeal to the Secretary, Industries and came to this Tribunal when he did not receive any reply to the same. In this behalf' it would be sufficient to say that a void order loses all its sanctity and is nullity in the eyes of law, therefore, objection of this nature as pointed out by the learned District Attorney, would not in any way confer validity on the impugned order which it so lacks.
13. The result is we accept the appeal and direct that the appellant will be re‑instated in service as if he bas never been removed from the same. However, the parties will be at their own costs.
M. I. Appeal accepted.