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Case No. 41811536 of 1981, decided on 9th May, 1982.

‑‑‑S. 12(ii)‑‑Civil servant retired from service by competent authority on completion of 25years‑‑Chequered service record‑‑No malice alleged‑‑Appeal before Tribunal, in circumstances, would not succeed.

Shabih‑ul‑Raza v. I.‑G. Police Case No. 384/677 of 1980 rel:

Appellant in person.

Haroonur Rashid Cheema, District Attorney for Respondents.

Abdul Nawaz has filed this appeal under section 4 of the Punjab Service Tribunal Act of 1974 in which he has impleaded Political Assistant/ Commandant, B.M.P., D.G. Khan, Deputy Commissioner, D.G. Khan, Commissioner Multan Division, Multan, and Pervaiz Iqbal, Daffadar B.M.P., resident of Lalgarh, Tehsil Jampur, District D.G. Khan.

2. By virtue of this appeal he has prayed that the appeal be accepted and the order dated 7‑1‑1980 passed by respondent No.l and all subsequent orders be set aside and in consequence the appellant be re‑instated in service.

3. Brief facts of the case are that the appellant Abdul Nawaz, Daffadar B.M.P. Post Nili Lakri was placed under suspension on 21‑12‑1979 on account of negligence and carelessness, as a result of which a dacoity took place in the area of his jurisdiction. While he was under suspension an enquiry was conducted against him. The cases of all B.M.P. Personnel who had completed 25 years of service were serutinized in the month of January, 1980. The appellant was retired from service under section 12(ii) of the Punjab Civil Services Act, 1974, vide Commandant's order dated 7‑1‑1980. The appellant filed an appeal before the Deputy Commissioner. D.G. Khan who vide his order, dated 1‑9‑1980 accepted the plea of the appellant that he could not be removed from service while he was under suspension and set aside the order of suspension, withdraw the enquiry so pending against him and directed that he should be considered to be re‑instated in service from the date of his suspension i.e. 21‑12‑1979. However, he endorsed the earlier order of his retirement from service under section 12( i) so made by the Commandant. Aggrieved against this order the appellant filed an appeal before the learned Commissioner Multan Division who vide his order, dated 30‑3‑1981 dismissed his appeal as incompetent. It was held that the only remedy available with the appellant against the order of retirement was a representation under section 21 of the Punjab Civil Servants Act, 1974 which he had availed, therefore, the appeal was not maintainable before him.

I have heard the appellant's counsel at length and have perused the record of this case carefully with his assistance. He has argued that as the order of retirement could not be passed while he was under suspension, therefore, the said order should be declared as void and the directions of the Deputy Commissioner in his order dated 1‑9‑1980 should be struck down as uncalled for and without jurisdiction, by which he set aside the suspension order, whithrew the enquiry and endorsed the earlier order by holding that the technical defects of the said order had been removed by him.

4. I have given my anxious thought to the arguments so raised before me and have carefully perused the para-wise comments as well as the impugned order, order of the Deputy Commissioner and that of the Commissioner Multan Division, in this behalf.

5. I would have certainly taken an exception to the order of the Deputy Commissioner, dated i‑9‑1980 if, as alleged by the appellant, he had set aside the original order and had passed the retirement order himself which he was not competent to do so but reading of the Deputy Commissioner's order, dated 1‑9‑1980 only reveals that he did not pass the retirement order but only withdrew the suspension order as well as the enquiry as the same could not stand in field viz‑a‑viz the impugned order of retirement. What he has removed is the technical defect and nothing else.

6. The competent authority in the case of the appellant was the Commandant B.M.P. who retired him from service under section 12( ) of the Punjab Civil Servants Act of 1974 which he was competent to do so. The law in this regard has been settled. A number of decisions by this Tribunal particularly Shabih‑ul‑Raza v. I.‑G. Police can be conveniently quoted (Case No. 384/677 of 1980 decided on 17‑5‑1981). which it was held that appeal .would only succeed with this Tribunal against an order of retirement under section 12(ii) of the Punjab Civil Servants Act of 1974 when it was found that the person so retired had not completed 25 years of service or was retired by incompetent authority or the retirement was due to an act of malice. In the present case I find that the appellant has completed 25 years of service and was retired by a competent authority and no malice of any sort has been alleged by the appellant against the authority so retiring him. His case before the Review Committee was fully considered and it was found that due to his chequered record of service he was not a fit person to be continued in service. This Committee was consisted of Principal, Government Degree College, D.G_ Khan, Assistant Commissioner, D.G. Khan and presided by Deputy Commissioner, D.G. Khan.

7. In view of the above I do not find any merits in this appeal, which is dismissed accordingly. However, the parties will bear their own costs. ,

A. E. Appeal dismissed.

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