ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-294 of 2008.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

02.03.2010.

1. For orders on office objections.

2. For Katcha Peshi.

Mr. Abdul Rahman Bhutto, advocate for the petitioner, alongwith petitioner.

Mr. Azizul Haque Solangi, Assts. A. G.

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It is contended in the petition that petitioner joined employment as Primary School Teacher (PST-09) on 30.11.1990 in Education Department. The petitioner performed duty in various schools and was transferred from one school to another school. It is further stated that salary of the petitioner was being paid to him through bank account and petitioner was issued identity card No.10206935. Petitioner applied for various loans to the bank and in this regard documents were issued to the petitioner. On 31.8.2007, the petitioner was issued a letter of suspension, which letter stated as under :-

“Under the letter No.CO/ACE/1934, dated 16.6.07 and letter No.CO/ACE/2284, dated 24.7.2007 of Circle Officer, Anticorruption, and letter No.DAOL/DAD-I, dated 24.7.2007 of District Accounts Officer, Larkana, you are under enquiry, therefore, you are suspended from 9.8.2007 and till completion of enquiry your salary is withheld and during suspension you are posted in the office of undersigned.”

This constitutional petition has been filed with the following prayers:-

(a) That this Hon'ble Court may be pleased to declare the action of withholding the monthly salaries of petitioner from May, 2007 up-till now of respondent No.3 as illegal, arbitrary, without lawful justification and with malafide intention.

(b) That this Hon'ble Court may further be pleased to direct the respondents to release the monthly salaries of petitioner from May 2007 to up-till now.

(c) That this Hon'ble Court may further be pleased to direct the respondents No.3 & 4 to return the original documents including service book to the petitioner, which have been kept by them with malafide intention and ulterior motives.

(d) Any other relief which this Hon'ble Court may deem fit and proper in above circumstances, may kindly be awarded to the petitioner.

Learned Counsel for the petitioner submitted that no departmental enquiry has been held against the petitioner, no show-cause notice has been issued to him and no opportunity of personal hearing has been given to him. He submitted that no termination/dismissal letter has been issued to the petitioner and petitioner is not being paid his salaries.

Comments were filed by the department and in the comments it was stated that one application was received by Assistant District Education Officer (Male), Larkana, for enquiry against five persons including the petitioner and during enquiry service record of the petitioner was not found with the office and, therefore, salary of the petitioner was withheld. It was further stated that in the enquiry it was established that appointment of the petitioner was found false and fabricated and, therefore, his salary was ordered to be stopped.

Learned Asst. A. G., submitted that during suspension the petitioner is not entitled to his fully salary. He further submitted that the petitioner has been proved guilty in an enquiry.

We have considered the submissions made by learned Counsel.

As far as suspension is concerned, the law is well-settled for almost last 20 years that during suspension a civil servant is entitled to his full emoluments. Even under Labour Laws, where originally Standing Order 15(5) of the Industrial and Commercial Employment Standing Orders, 1968 provided that if a workman is suspended he shall be paid 60% of his wages, through amendment brought in 2008 (through Finance Act, 2008) it has now been provided that during suspension a workman is to be paid his full salary. Therefore, during suspension the petitioner is entitled to his all salary and allowances.

Mr. Solangi’s contention is that it has been found in the enquiry that appointment of the petitioner was false/forged and based on fabricated documents. Mr. Bhutto denies such position and he states that no such enquiry has been held. The question whether enquiry has or has not been held and the question whether, if the enquiry was held, it was held after show-cause notice and other codal formalities need not detain us any more because at the end of an enquiry a delinquent employee can be punished with act of the punishment provided under Sindh Civil Servants (Efficiency & Discipline) Rules, 1973. Stoppage of salary is not one of the prescribed punishments, therefore, even if the petitioner has been proved guilty in an enquiry, though it is available to the competent authority to punish him as long as he is employee of the department and as long as he is under suspension, he is entitled to the salary. Admittedly, no termination order or other penalty order has been issued.

Consequently, this constitutional petition is allowed. The respondents are directed to ensure that salary and allowances of the petitioner are released to him within 30 days of the date of this order and compliance report is submitted to this Court. Needless to observe that it is available to the competent authority to punish the petitioner for any misconduct that petitioner might have committed till obtaining the employment or during the employment, but such punishment can only be imposed after following the due process of the law and in accordance with the law.

This constitutional petition is disposed of in the above terms.

JUDGE