BASHIR AHMED vs GOVERNMENT OF SINDH through Secretary, Home

ORDER

1. ' WAHID BUX BROHI, J.---The petitioner. Was serving as OGWarder in District Jail Jacobabad and was posted in Division No,2 of the said jail. A prisoner made his escape good from,Division No,1, as a result, actions are taken against others and show-cause notice was issued to the petitioner also for the act of negligence and carelessness in performing duties. He submitted his reply and he was heard in person also, whereafter Inspector General Prisons, Sindh by order dated 27-3-2000 held that the reply of petitioner was unsatisfactory and dismissed him from Government service with immediate affect under rule 4(b)(v) of Sindh Prisons Department (Efficiency and Discipline) Rules 1999. Against this order, the petitioner preferred an appeal but he was informed through letter dated 20-1.2001 that Secretary to Government of Sindh has rejected his appeal. He has challenged both the orders, through this petition, inter alia, on the ground that neither reasons have been recorded nor a speaking order has been passed by the authorities concerned.

2. ' We have heard learned counsel for the petitioner and learned Additional Advocate-General. And perused the material placed on record.

3. ' The basic contention of the petitioner is that in view of the law laid down by the Honourable Supreme Court in &slam Warraich v. Secretary, Planning and Development Division (1991 SCM R 2330) the order dated 27-3-2000 passed by the Inspector General Prisons Sindh dismissing him from service is liable to be set aside on the ground that reasons have not been recorded by him.

4. We have perused the aforesaid order which for the sake of convenience is reproduced hereinklow: "Whereas Mr. Basheer Ahmed O.G. Warder of District Jail Jacobabad was served with show-cause notice vide this office Ends: No:EE-1/14408 dated: 4-11-1999 on account of negligence and carelessness in performing duties resultantly one UTP Baloch Khan s/o Rahim, involved in case under section 6/9 Narcotic Act made his good escape from inside District Jail Jacobabad on 21-9- 1997.

5. ' And whereas his reply to the show-cause notice received through Superintendent District Jail Jacobabad vide his Letter No: UTB/4917 dated 29-11-1999 which was considered and found unsatisfactory as such lie was served with final show-cause notice vide this office Letter NO:EE- 3/1106 dated 31-1-2000 and reply thereto was received through the Superintendent District Jail Jacobabad Letter No:SAS/506 dated 19-2-2000.

6. ' He was also heard in person on 7-3-2000. The replies written as well as oral were found unsatisfactory. Hence the defaulter in question is hereby dismissed from Government service with immediate effect under rule 4(b)(v) of Sindh Prisons Department (Efficiency and Discipline) Rules 1999."

7. ' It is evident from the above order that simply the replies have been treated as unsatisfactory, but no reason has been recorded to justify that opinion. The Honourable Supreme Court in the cited case in similar situation made the following observations: "..But in many other cases we have been seen that the rejection is a simple ritulalistic rejection.

8. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons; at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law.

9. ' In the light of the foregoing discussion we accept these appeals and remand the cases to the departmental concerned for consideration of the representations submitted from the respondent's side on merits and to decide the same by reasoned orders. And with the further directions that the reasons should also be conveyed to the respondents."

10. ' Learned Addl.A.G. Is not able to explain if actually reasons were recorded or conveyed to the petitioner. We have further noted that even the order dated 22-12-2000 of Secretary to Government of Sindh Home Department referred to in the letter dated 20-1-2001, has not been conveyed to the petitioner. It is a qustion apart that in both these orders reasons have not been recorded and no speaking order has apparently been passed. The above observations of the Honourable Supreme Court fully apply to the instant case.

11. ' It may also be pointed out that the above order was passed before insertion of section 24-A in the General Clause Act, 1997. Now after introduction of the aforesaid provision of law recording of reasons has turned to be a statutory requirement. The said section reads as under: "24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2) The authority, office or persons making any order of issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, given reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."

12. ' It was a declared law as observed by the Honourable Supreme Court and now there is statutory requirement calling for recording of reasons but the same have been ignored. We are constrained to observe that the legal provisions have been violated. Both these orders therefore, cannot be sustained on account of this legal infirmity and are hereby set aside. The matter is remanded to Inspector General Prisons Sindh to pass fresh order strictly in accordance with law. Petition is disposed in above terms.