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Writ Petition No.168‑S of 1982, decided on 19th April, 1983.

‑‑‑Art. 9‑‑Civil service‑‑Dismissal‑‑Authority dismissing employee participating in appeal as member of Board authorized to hear appeal against dismissal‑‑Constituion of Board by including Punishing Authority to complete quorum, held, was illegal and arbitrary‑‑Mere fact that Punishing Authority did nothing would not validate constitution of Appellate Authority‑‑Case was sent back to Authority for rehearing of appeal according to law by setting aside order of Appellate Authority.

Malik Muhammad Asghar for Petitioner.

Asmat Ullah for Respondent.

Date of hearing: 19th April, 1983.

This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Muhammad Ashfaq Bhutta petitioner wants this Court to declare the order, dated 19‑5‑1980 passed by the Managing Director, Punjab Agricultural Development and Supplies Corporation, Lahore, respondent No. 2 and order, dated 21‑12‑1981 passed by the Chairman and Board of Member, Punjab Agricultural Development and Supplies Corporation, Lahore, respondent No. 3, to be without lawful authority and of no legal effect.

2. The facts leading up to this petition in brief are that the petitioner was appointed as Procurement Officer in Punjab Agricultural Development and Supplies Corporation, Lahore. He was dismissed on 16‑10‑1979 on the charge of absence from duty. He challenged this order before the Punjab Labour Court No. 9, Multan. The order of his dismissal was, however, withdrawn on 24‑10‑1979 without prejudice to the further proceedings. Thereafter fresh show‑cause notice was issued to him. He submitted his reply refuting the allegations but he was again dismissed on 19‑5‑1980. Feeling aggrieved he filed appeal before the Board of Members, Punjab Agricultural Development and Supplies Corporation, Lahore, i.e. the Appellate Authority. Since there was an inordinate delay in the disposal of appeal, the petitioner moved Writ Petition No. 148 of 1981 challenging the order of his dismissal. On 23‑2‑1981, the writ petition was disposed of with the observation that:

"Respondent No. 1 is directed to dispose of the appeal if filed by the petitioner and pending before him within 2 months without fail. "

Thereafter, the petitioner moved another Writ Petition No. 453‑S of 1981 on the ground that despite the direction of this Court, the Appellate Authority had not decided his appeal. On 25‑10‑1981, this Court directed the appellate authority to comply with the direction given by this Court on 23‑2‑1981 as early as possible preferably within one month. Thereafter, respondent No. 3 dismissed the appeal of the petitioner on 21‑12‑1981. Hence this writ petition.

3. The learned counsel submits that the Managing Director, Punjab Agricultural Development and Supplies Corporation, Lahore, respondent No. 2, the punishing authority, against whose order the appeal was filed before the Board of Members participated in the hearing of appeal as a member of the Board and as such the order, dated 21‑12‑1981 is illegal and without lawful authority.

As against this; the learned counsel for the respondents has not been able to controvert this factual aspect of the contention raised by the learned counsel for the petitioner.

4. After hearing the learned counsel and going through the record I find that respondent No. 2 had dismissed the petitioner; that on appeal he sat as a member of the Board, i.e. the appellate authority; that the quorum of the Board for the hearing of appeal is four; that the appeal of the petitioner was heard by four members including the punishing authority and as such the constitution of the Board was illegal. It would be interesting to quote para. No. 6 of the impugned order:

"As the Managing Director of the PAD&SC was the Punishing Authority he was not called upon to express any opinion regarding the disposal of the Appeal being the Punishing Authority. However, in order to complete the quorum of the Board of four Members he was present. This presence of the Punishing Authority has not in any way influenced the decision of the Board or caused any prejudice to the Appellant."

To my mind, since the very constitution of the Board by including Punishing Authority to complete the quorum was illegal and arbitrary, therefore, the mere fact that the Punishing Authority did nothing would not validate the constitution of Appellate Authority.

5. For what has been stated above, the order, dated 21‑12‑1981 is hereby, declared to have been passed without lawful authority, the same is, hereby set aside and the case is sent back to respondent No. 3 for rehearing of appeal according to law.

A.A.

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