DIRECTOR-GENERAL, SOIL SURVEY OF PAKISTAN vs MUHAMMAD YASIN
This matter concerns a petition for leave to appeal against a judgment of the Federal Service Tribunal, which had directed that a 570-day service interruption of the respondent, a former Khalasi in the Soil Survey of Pakistan, be treated as extraordinary leave without pay. The respondent’s services were terminated in 1973 for alleged misconduct without a hearing, and he was subsequently re-appointed in 1974. The core legal question was whether the Tribunal erred in granting relief regarding the service gap, given the significant delay in filing the appeal and the applicability of disciplinary rules. The Supreme Court observed that the termination, being based on allegations of misconduct, required an opportunity of hearing, which was not provided. The Court noted that the Finance Division had itself advised reinstatement rather than re-appointment. Finding that the respondent had since retired and that no question of public importance remained, the Court upheld the Tribunal's decision. The judgment reaffirms the principle that even where specific disciplinary rules may not strictly apply, the principles of natural justice require an opportunity of hearing before termination for misconduct.
- Is it mandatory to provide an opportunity of hearing before terminating an employee for misconduct, even if specific disciplinary rules are not applicable?
- Can a service interruption period be regularized as extraordinary leave when the initial termination was procedurally flawed?
- Does the re-appointment of an employee following a termination for misconduct preclude the regularization of the intervening service gap?
- Section 25-A, Industrial Relations Ordinance 1969
- Efficiency and Discipline Rules 1973
- Fundamental Rule 54, Fundamental Rules
ORDER
' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 17-8-1998 of the Federal Service Tribunal whereby the interruption period of 570 days from 10-5-1973 to 4-12-1975 was directed to be treated as an extraordinary leave (without pay).
2. Facts briefly are that the respondent Muhammad Yasin was appointed as Khalasi in the Soil Survey of Department, Government of Pakistan on 7-4-1971. His services were terminated with effect from 10-5-1973 on the charge of misconduct. Thereupon, he approached Junior Labour Court, Lahore where his petition under section 25-A of the Industrial Relation Ordinance, 1969 was dismissed vide judgment dated 7-6-1974 on the ground that the Efficiency and Discipline Rules were applicable to the department as such neither the Industrial Relations Ordinance, 1969 nor Standing Orders Ordinance, 1968 would be attracted.
3. The respondent filed an appeal against this dismissal order before the Senior Labour Court, Lahore. However, during this period the petitioner department re-appointed the respondent with effect from 15-12-1974. Since there was break of 570 days in the service, the respondent made numerous representations before the competent authority for the condonation of the same. As reflected from the documents appended by the petitioner, his case was referred to the Ministry where it was also examined by the Finance Division (Regulations Wing).
4. Having received no response to his representations, he approached the Federal Service Tribunal, Lahore on 3-12-1997 praying that his period of interruption from 10-5-1973 to 15-12-1974 be condoned. The Tribunal vide judgment dated 17-8-1998 accepted the appeal and made a direction that this period be treated as extraordinary leave (without pay).
5. Argument has been advanced that the respondent's appeal was time-barred as the same was filed after a period of 24 years. A further argument has been advanced that the Federal Service Tribunal wrongly held that the Efficiency and Discipline Rules, 1973 were applicable. Learned counsel has pointed out that the respondent's services were terminated on 10-5-1973 while the aforesaid rules were enforced 3 months thereafter on 18-8-1973. He has also stated that respondent's services were terminated according to his appointment letter which provided that the same could be terminated at any time without assigning any reason.
6. Caveator has argued that since the termination was on the ground of misconduct, as such, show-cause notice was essential. However, the impugned termination was ordered without providing any opportunity of hearing to the respondent.
7. We have considered the contention and have gone through the documents appended with his petition. We have been informed that the respondent had already retired on 1st of September, 2000. We have also noticed that his termination was not simplicitier as it was tainted with the allegations of misconduct. Even if Efficiency and Discipline Rules were not applicable to the respondent even then in view of the allegations it was incumbent upon the petitioner department to provide him opportunity of haring to controvert the allegations (1994 SCM R 2232 Mrs. Anisa Rehman v. P.I.A.C. And another). No such opportunity admittedly was provided to him. The Finance Division who examined the case of the respondent advised for his reinstatement. The Federal Service Tribunal has mentioned the report of the Finance of Division which is in the following terms:-- "28 As Mr. Muhammad Yasin, Khallasi has been taken back in service in consideration of the fact that requirements of E&D Rules, 1973 were not properly observed while taking disciplinary action against him, the official, in such a situation could have been reinstated in service and not re- appointed which terminology means fresh appointment without consequential benefits.
"29 The competent authority may consider and decide to reinstate the official, and regularize the period of his absence for 570 days under the provisions of F.R.54 as notified vide Finance Division's ' Notification No,F.I.(6)R-4/93; dated 2-8-1993 Photocopies of personal File No,F2-235/78-A (Part-I) and (Part-II) are returned herewith."
8. Even otherwise in the facts of the present case after the retirement of the respondent no question of public importance is involved. Resultantly, finding no force the petition is dismissed and leave is refused.