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Civil Petition for Special Leave to Appeal No. K‑234 of 1982, decided on 22nd November, 1984

(Appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 6th June. 19521.

‑‑‑Art. 212(3)‑‑Civil service‑‑Removal from service‑‑Failure to comply with transfer order‑‑Petitioner not released by superior officer‑‑Leave granted to examine pleas that petitioner remained on duty under lawful orders and was victim of rivalry between officials of Department.

Faizuddin Advocate, Supreme Court with Faizanul Haq, Advocate -on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd November, 1984.

‑‑While petitioner was posted as a Chowkidar at the Hamilton Hangar, Karachi he was transferred under the order, dated 30‑7‑1979 passed by the Deputy Director (Administration) Department of Plant Protection, Karachi and was posted at Plant Quarantine, Sea Port, Karachi. He was further directed to report to the Entomologist, Plant Quarantine, Sea Port, Karachi on 31st July, 1979. The Security Officer under whom petitioner was working was simultaneously instructed to relieve him from the duty immediately so that he may join duty at Plant Quarantine, Sea Port, on the following day.

The Security Officer instead protested against petitioner's transfer and also that of another Chowkidar Muhammad Shafi, made jointly for the reasons which need not be stated as these are not necessary for the purpose of this order, suffice to say that the Security Officer refused to relieve the petitioner from duty for joining the post to which he was transferred. It appears that controversy over the transfer of petitioner's services arose between the Security Officer and the senior officers of the Department of Plant Protection. In this behalf, the following portion of Memorandum, dated 18‑8‑1979 issued by the Security Officer may be usefully reproduced:

"I am unable to relieve Muhammad Shafi unless a Chowkidar is posted in his place who can accept full responsibility. If still department wants me to relieve Muhammad Shafi Chowkidar from Hangar and accept a person in his place who is totally unfit for security duty, I shall have no objection to do so, but I shall not be held responsible for any mishap/security lapse occurring at this key point due to the above arrangement being made by you."

It appears that the higher officer of the Plant Protection took serious view of the attitude adopted by the Security Officer in not relieving the petitioner from duty, and the Charter of his duties as Security Officer was modified to the extent that the Chowkidars posted at Hamilton Hangar were placed under the administrative control of the Chief Engineer. By this time however petitioner was suspended from service and finally was removed from service after departmental proceedings on 1‑6‑1980. His departmental appeal was rejected and the Federal Service Tribunal also dismissed his appeal by the impugned judgment.

In support of this petition for special leave to appeal from the judgment of the Federal Service Tribunal, Mr. Faizuddin, learned counsel for the petitioner submits that on the admitted facts that petitioner's immediate superior officer refused to release the petitioner for joining the duty at the new post, he cannot be held guilty of disobedience of the order of transfer. In this behalf, learned counsel pointed out that it is the case of the Department itself that under the Charter of Duties of the Security Officer issued under memorandum, dated 17th March, 1976 all Chowkidars posted at Hamilton Hangar were under his control for the purpose of duty and administration, and it was as late as the 5th November 1979 that the aforesaid Charter of Duties was modified to the extent that the said Chowkidars were placed under the administrative control of the Chief Engineer. Learned counsel, therefore, submitted that petitioner having remained on duty in compliance of the lawful orders passed by the Security Officer cannot be held guilty for disobedience of the order of his transfer.

Learned counsel further submitted that this is a clear case where petitioner has been the victim of a rivalry between the officials of the Department.

After having gone through the record of the case we feel that the submissions advanced in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow this petition.

M. I. Leave granted.

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