1988 PLC(CS) 568
1. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).‑‑ Appellant has challenged the impugned order dated 9‑9‑1987 through the present appeal vide which he was removed from service. According to him he was taken as Cleaner in the office of respondent No.4 in the year, 1980. During 1985 he suffered from a disease "Schezo" and on 7‑4‑1985 applied for 5 days leave followed with application for extension of leave uptil 21‑10‑1985 on medical ground. It so happened that the matter was not decided and the appellant was referred to the Medical Board who opined that the appellant was suffering from "Schezo" but fit to perform his duties if properly treated. Respondent No.4 decided the case on 18‑6‑1986, however again on 29‑7‑1987 the appellant received severe attack of "Schezo" and was taken to Psychiatrist Khyber Hospital, Peshawar where he remained under his treatment upto 12‑8‑1987. On 9‑9‑1987 his services were terminated without following the procedural requirement and his representation to respondent No.3 being dishonoured on 12‑12‑1987, he has approached this Tribunal through the present appeal treating the said order as illegal, ultra vires, without jurisdiction and not binding upon him.
2. Claim of the appellant was vehemently resisted by the respondents who submitted the written statement and it was alleged by them that due to the circumstances of the case, no enquiry was conducted, the termination from service is not punishment and the order was legal.
3. We have given our patient hearing to the arguments advanced by the learned counsel for the parties. It was argued by the learned counsel for the appellant that the disease of the appellant was such that it was practically impossible for him to intimate the respondents about it well in time. He was an old patient of the said disease and prior to the last attack, he suffered from it in the year 1985, and was exonerated of the charge of absence from duty by the respondents. If the respondents treat it as misconduct, then it was incumbent upon them to initiate formal enquiry against the appellant. They cannot of their sweet and free will dispense away with the requirement of conducting the enquiry. Besides, this termination of Service has deprived the appellant from the salary and other benefits and it tantamounts to dismissal from service.
4. On the other hand learned Special Government Pleader argued that the appellant was guilty of a long and wilful absence, he was rightly and legally terminated from service. He was an unwilling worker and his presence in the department would encourage the other colleagues to resort to such like activities.
5. It is an established principle of law that punishment awarded to an official cannot be ambiguous and indefinite. It must be known that on account of his omission /commission, he will have to undergo certain punishment which can either be dismissal, removal from service or compulsory retirement. The authorities while issuing show‑cause, notice do not observe the exact criteria and often they would issue the notice containing the warning that the official shall suffer any of the major penalties embodied in the N.‑W.F.P. Efficiency & Discipline Rules, 1973. Besides this no inquiry was conducted by the department against the appellant, although he was charged for misconduct, in relation to his wilful absence from duty. The appellant averred that, he was suffering from severe disease and, therefore, was unable to attend the office.
6. The contention of the Government Pleader that since the appellant was purely temporary and could be terminated without assigning any reason or notice .is without any force, because respondents cannot be given such an unlimited power to dispense away with the service of an official who remained in continuous service for more than 6 years. It was the responsibility of the department concerned to regularize the service of the appellant, after he completed the period of probation. In the instant case the appointment order would show that no period of probation was prescribed in the appointment order, copy Annexure 2, dated 14‑10‑1980.
7. We are constrained to hold that the impugned orders were illegal and ultra vires of the Rules, therefore, the same are set aside. He is entitled to all back benefits. Parties are left to bear their own cost. File be consigned to the record room.
8. S.Q/81/Sr.N Appeal allowed.