IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Constitutional Petition No. D- 205 of 2021.

Present:

                                                            Mr. Justice Muhammad Saleem Jessar.

                                                            Mr. Justice Khadim Hussain Soomro.

Muhammad Nawaz & 2 others.                                          …………….Petitioners.

Versus

Province of Sindh

& others.                                                                                …..…..….Respondents.

            Mr. Wakeel Ali Shaikh, Advocate for petitioners.

Mr. Muhammad Ashique Dhamraho, Advocate for respondent No.2 along with Mr. Muhammad Nawaz Rahpoto CMO K.N. Shah.

Mr. Abdul Hamid Bhurgri, Additional Advocate General.

Date of hearing:        06.12.2023.

Date of Judgment:    06.12.2023.

Judgment

Muhammad Saleem Jessar, J-. The petitioner named above, though this petition has prayed as under:

(a) To declare that termination of the petitioners from their services is illegal, ultra vires, unconstitutional and is agaisnt the principles of natural justice, equity, fair play, and without any justification and against relevant rules.

(b) To call upon respondents and direct them to re-instate the petitioner in service along with back benefits.

            2.         The case of the petitioner is that, the petitioners were appointed as Junior Clerk and Sanitary worker/ cum work helper respectively, in the year 2012, and they were posted in Municipal Committee Khairpur Nathan Shah and all of sudden in the month of July, 2019, since their salaries were stopped by the respondent No.2 without any reason, the petitioners filed Constt. Petition No. D- 207 of 2020 before this Court and pursuant to notice issued by this Court in the aforesaid petition the respondents filed their comments dated 21.7.2020, mentioning therein that they have terminated the services of the petitioners vide Order Nos. 410, 412 dated 21.11.2019 and Order No.414, dated 22.11.2019 respectively, therefore, question of release of their salaries does not arise. It is further case of the petitioners in view of the comments filed by the respondents, the aforesaid petition was withdrawn and it was disposed as not pressed leaving the petitioners at liberty to pursue any legal option available to them under the law.

            3.         Learned counsel for the petitioners contended that, services of the petitioners were terminated without any show-cause-notice or conducting of any regular departmental enquiry, as such their termination is illegal, null and void. Per learned counsel the services of petitioners have been terminated without providing any chance of hearing to them, which is against the natural justice. Learned counsel further contended that petitioners have been condemned un-heard, therefore, termination of the petitioners from their services without assigning any reason is illegal, ultra vires, unconstitutional and is against the principles of natural justice, equity, fair play and without any justification; and prima-facie it amounts to deprivation of right of life guaranteed by Article-9 of the Constitution. Learned counsel further contended that the respondent No.2 was not competent to terminate services of the petitioners, but by exposing himself to be competent authority he has passed the impugned orders, though he was not the competent authority or authorized officer. As such, the learned counsel prayed for setting aside of the impugned order. Learned counsel in support of his contentions relied upon 1994 SCMR 2232; 2005 PLC (C.S) 256 [Sindh Service Tribunal]; 2007 PLC (C.S) 467 [Sindh Service Tribunal] and 2023 SCMR 603.

            4.         Conversely, learned counsel for respondent No.2, opposed the instant petition by submitting that the petitioners were charged with misconduct as well as non performance of their duties, hence their services were rightly terminated. He further added that the respondents issued shown cause notices to the petitioners, which were served upon them through courier service. However, learned counsel has not been able to pinpoint mode of service of notice and also admitted that the notices were not published in any newspaper.  Learned counsel for respondent No.2 is also not in a position to justify his arguments regarding misuse of the powers exercised by the respondent No.2 being incompetent.

            5.         Learned Addl. A.G. submitted that it will be appropriate for both the parties that the case of the petitioners may be re-considered and revisited after providing them an opportunity of hearing and after conducting regular enquiry into the allegations.

            6.         We have heard learned counsel for the respective parties and gone through the material made available on the record.

            7.         Prima-facie, it appears from the record that, before termination of services of the petitioners by the respondents/ department, they were not properly served with show-cause-notices; neither any regular departmental enquiry was initiated, nor they were provided any chance of hearing. In view of all this, the impugned orders of termination of services of petitioners appear to be illegal, ultra vires and against the principles of natural justice and fair play. Consequently, the termination orders of the petitioners are hereby set-aside and they are directed to be re-instated in service with effect from the date of their termination with all back benefits.  However, the respondents/ department would be at liberty to initiate fresh proceedings against the petitioners in accordance with the law. 

Judge

                                  Judge

Ansari