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Civil Petitions for Special Leave to Appeal Nos. 270 and 2 of 1981, decided on 22nd March, 1981.

(On appeal from the judgment of the Lahore High Court dated 4-10-1980 in C. R. No. 232/76).

-- R. 6-A (3)-Civil Judge holding petitioner's dismissal from service to be illegal and finding inquiry held against petitioner to be defective Civil Judge, however, in concluding judgment observing that defendants (Department concerned) shall be at liberty to hold fresh inquiry by following procedure laid down by r. 6-A (3) of Government Servants (Efficiency and Discipline) Rules, 1960 in case they considered it ex pedient and necessary-Order of trial Court allowing Department to hold fresh inquiry by following relevant procedure-Held, correctly interprets and applies law-As long as allegation of misconduct not competently looked into and proceedings concluded, no question of exposing petitioner to double jeopardy, held further, would arise. [Civil services].

-- S. 8-Impugned order passed by civil Court before prescribed date-Matter, held, competently dealt with by civil Court and proceed ings did not abate.-[Abatement-Civil services].

Khan Faizullah Khan v. Government of Pakistan P L D 1974 S C 291 and Islamic Republic of Pakistan v. Amjad All Mirza P L D 1977 S C 182 ref.

C. P. S. L. A. No. 270 of 1981

Shuja-ud-Din Qureshi, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate-on-Record for Petitioners.

Namo for Respondent.

C. P. S. L. A. No. 2 of 1981

Sh. Munir Ahmad, Advocate with Sh. Masud Akhtar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 23rd March, 1981.

-This order disposes of two petitions for leave to appeal against the judgment of the Lahore High Court dated 4-10-1980.

2. Elahi Bakhsh was a Patwari serving in the Western Bar Division Multan under the Executive Engineer. He was proceeded against depart- mentally and dismissed from service on 8-2-1968. His appeal to the Superin tending Engineer was dismissed on 3i-10-1968. He thereupon instituted a civil suit challenging his dismissal. The learned Civil Judge upheld his claim, found that the inquiry was defective in many respects and granted the usual declaration that his dismissal was against law and inoperative. In concluding the judgment, however, the learned Civil Judge observed that:-

"The defendants shall be at liberty to hold fresh enquiry by following the procedure laid down by subsection (3), rule 6-A, Government Servants (Efficiency and Discipline) Rules, 1960 in case they considered it expedient and necessary."

3. The Province and its Officers who were the defendants the suit filed an appeal against the decision in so far as the civil Court had declared the dismissal to be against law. The Patwari filed cross-objections in so far as the learned Civil Judge had kept open the chances of afresh enquiry against him. The Additional District Judge by his judgment dated 26-11-1975 dismissed the appeal of the Department and upheld the cross-objection of the patwari.

4. The Department next filed a revision petition and it succeeded only to this extent that the acceptance of the cross-objections of the Patwari was set aside and the observations made by the learned trial Court with regard to fresh enquiry into the matter was allowed to stand.

5. Elahi Bakhsh Patwari by his petition challenges the decision in revision on the ground that the entire enquiry against him stood vitiated on account of lack of approval of the competent authority and that fresh enquiry in the circumstances of the case would amount to clear abuse and expose him to double jeopardy.

6. In the other petition filed by the Province of Punjab and the Officers of the Department the main ground taken up is that in view of section 8 of the Punjab Administrative Tribunals Act, 1974 the pending proceedings stood abated and that the assumption of the jurisdiction in view of such a clear provision was without jurisdiction.

7. So far as Elahi Bakhsh's appeal is concerned suffice it to say that as long as the allegation of misconduct is not competently looked into and the proceedings concluded, there would be no question of exposing him double jeopardy. He cannot have it both ways, that is, that the inquiry A being not in conformity with law should be ignored altogether and the result avoided and yet it should bar any enquiry in accordance with law. The order of the trial Judge as restored by the High Court correctly interprets and applies the law.

8. As regards the Department's petition the jurisdictional -defect alleged has already been dealt with by this Court in two cases Khan Faizullah Khan v. Government of Pakistan (1) and Islamic Republic of Pakistan v. Amjad Ali Mirza (2). As the impugned order in the case was passed before the t prescribed date the matter could be dealt with by the civil Court and did not abate.

9. Both the petitions are, therefore, without merit and dismissed.

Petition dismissed.

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