NOOR MUHAMMAD Versus AIR CHIEF MARTIAL OF PAKISTAN

SALAHUDDIN CHAURHRI (MEMBER). ‑‑The appellant, a civilian truck driver in the Motor Transport Department of Pakistan Air Force Base Samungli, Quetta, challenges through this appeal orders dated 26‑12‑1985 dismissing him from service with retrospective effect from 27‑11‑1985.

2. The facts are that on 27‑11‑1985 when he was driving a truck to Sukkur in a convoy, he smashed it into a wagon in the same convoy. This incident was taken by the respondents as an evidence of gross negligence and inefficiency. He was served with a show‑cause notice and after some investigations, he was dismissed from service vide orders dated 26‑12‑1985. On 17‑4‑1986 the appellant filed a departmental appeal against this order followed by a reminder dated 26‑6‑1986. The appeal was rejected vide orders dated 10‑9‑1986 received by the appellant on 27‑9‑1986. To contest these orders the appellant came up before this Tribunal in appeal filed on 30‑10‑1986.

3. On behalf of the respondents objection has been raised at the very outset that the appeal is barred by time. The learned counsel appearing for the respondents pointed out that the departmental appeal having been filed on 17‑4‑1986, was barred by time and so was the appeal to this Tribunal which was filed 33 days after the receipt of the appellate order instead of 30 days time limit as prescribed. In reply, the learned counsel for the appellant took the stand that the Respondent‑Department considered the appeal on merits and rejected it vide their orders dated 10‑9‑1986. Obviously, according to him, the delay, if any, had been condoned by the Department. The only delay which had occurred was at the stage of filing appeal to this Tribunal. It was urged that the appellant being a semi‑literate person and not well‑versed in legal procedures, had to do lot of running about to seek advice and arrange finances for filing appeal to this Tribunal. Because of all these factors plus the long distances involved between his village and Quetta just three days delay occurred. For these reasons it was urged that the application for condonation of delay filed with the appeal deserves to be considered sympathetically. We have carefully considered the facts of the case and the arguments advanced from both the sides and have come to the conclusion that a case has been made out for condoning the delay. The delay is accordingly condoned and we proceed to consider the appeal on merits.

4. The first objection raised is that the order of dismissal is void and not sustainable in law inasmuch as full opportunity was not afforded to the appellant to defend himself. It was pointed out that no second show‑cause notice was issued either by the Authorised Officer or by the Authority before passing the impugned order. We find there is substance in the plea taken on behalf of the appellant. The record shows that a show‑cause notice was issued on the 12th of December, 1985. The appellant submitted his reply within seven days, which was considered by the Enquiry Committee which held him guilty of misconduct. Then without issuing any show‑cause notice, the Authority passed the order dated 26‑12‑1985 dismissing the appellant from service. On these facts, the order of dismissal is clearly void.

5. The order suffers from another serious infirmity. Although the order was passed on 26‑12‑1985 yet it was given retrospective effect from 27‑11‑1985. It is well‑settled law that an administrative authority cannot pass order with retrospective effect. It is only the Legislature that can give retrospective effect to what it ordains. In this connection we rely on the judgment of the Supreme Court reported as 1986 S C M R 1917 and the Lahore High Court's judgment reported As P L D 1953 Lah. 295. In the Lahore High Court's judgment the Honourable Court held as under:‑‑

"We have been referring to the order of dismissal passed by the Punjab Government which purports to take effect from a previous date without comment. Let it not be understood that we accept the authority of the Government to pass orders with retrospective effect. It is only the Legislature than can give retrospective effect to what it ordains. The Government have only power to dismiss and a power to dismiss does not imply a power to say "a dismissal shall be deemed to have taken place on such and such a date". At least in the absence of an authority from the Legislature, express or necessarily intended, no such power can exist.

We hold that the respondent being no longer in the service of the defendant, the order of dismissal was void and inoperative:"

6. In view of that we hold that the order passed is void and of no legal effect. The impugned order is, therefore, set aside and the appellant is reinstated in service with immediate effect but he will not be allowed any back benefits.

7. No order as to costs.

8. Parties to be informed accordingly.

A.A./509/Sr. F

Appeal accepted.