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Petition for Special Leave to Appeal No. 55-P of 1978, decided on 12th June 1979.

----Ss. 4 & 7-Appeal-Dismissal on technical ground-Service Tribunal accepting appeal on a technical ground (violation of rules relating to inquiry) but expressing no opinion on merits of case Service Tribunal, in circumstances, held, could while setting aside order, indicate Department being not precluded from taking action against official concerned by following correct procedure-Order of Tribunal, held further, did not amount to an order of remand.

- Ss. 4 & 7-Appeal-Re-instatement-Appeal accepted on technical ground without expressing opinion on merits-No material on record to show petitioner having not been under suspension during continuance of inquiry-Petitioner in circumstances not entitled to be re-instated into service automatically on acceptance of appeal particularly when specific prayer as to award of all benefits made in petition for appeal not considered by Tribunal-Close reading of order however not indicating Department having been debarred from re-instating petitioner and paying arrears of salary and such aspect of case being left to be considered by Department, matter left for Depart ment concerned to be dealt with.

Rial Ahrnad Pirzada, Advocate Supreme Court instructed by M. Qasim Imam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 12th June 1979.

.-This is a petition under Article 212 (3) of the Constitution of the Islamic Republic of Pakistan for leave to appeal against the judgment of Service Tribunal, Peshawar, dated the 16th April, 1978 in Appeal No. 25 of 1975.

2. The petitioner Habibullah who was working as a Senior Clerk in the office of the Agency South Waziristan, Wans, was charge-sheeted under the N.W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973 by the Agency Surgeon, Wana and was ultimately dismissed from service vide his order dated 18-12-74, after inquiry and issuance of show-cause notice. The petitioner's Departmental appeal addressed to the Director, Health Services, N: W. F. P. Peshawar, was dismissed on 8-12-1975. Consequently he filed a service appeal before the N: W. F. P. Service Tribunal, Peshawar. The Tribunal found that the inquiry against the petitioner was conducted in violation of the mandatory provisions of the Rules and, therefore, the order of the Department could not be maintained. The conclusion, however, was expressed in the following terms :-

"In the result we accept the appeal, set aside the impugned orders and direct the respondents that a fresh inquiry against the appellant be held in accordance with the provisions of the Rules. In view of the fact that the appellant has not been discreet in his conduct and adopted an attitude of confrontation and non-co-operation during the Departmental proceedings initiated against him, we decline to pass an order of his re-instatement to service at this stage. The question of his re-instatement to service from a particular date, or otherwise, and his entitlement, to emoluments, etc. since his dismissal from service onward, would also be determined by the competent authority alongwith the question of his guilt or otherwise at the time of conclusion of the fresh inquiry now directed by us."

The order of the Tribunal was passed on 16-4-1978 and the petitioner feels aggrieved by its concluding portion which has been reproduced above. Hence this petition.

3. Mr. Riaz Ahmed Pirzada counsel for the petitioner has contended before us that the above observations are in excess of the jurisdiction of the Tribunal because the Tribunal could either accept the appeal or reject it. The Tribunal, however, while accepting the appeal of the petitioner had set aside the order of the Agency Surgeon, Wana, dated 18-12-1974 but at the same time it has put the petitioner in the agony of suspense by further directing the authority concerned to withhold the petitioner's emolument still the conclusion .of the fresh Departmental inquiry which might again culminate in an appeal to the N.-W. F. P. Service Tribunal. The submission is that the Service Tribunal is inherently contradictory as it has accepted the appeal, but at the same time nullified its effects by not restoring the petitioner to service. Furthermore, the Tribunal had acted in violation of the provision of section 7 (1) of the N: W. F. P. Service Tribunals Act, 1974 whereunder the Tribunal had no jurisdiction to issue directions in the nature of a remand order to remand the case. Hence impugned part of the order is liable to be set aside.

4. We find that Service Tribunal had accepted the appeal of the petitioner on a technical ground, a violation of the inquiry proceedings and had expressed no opinion on the merits of the case so far as the correctness or otherwise of the charges levelled against him were concerned. Consequent it could, while setting aside the order, indicate that the Department was not precluded from taking action against the petitioner by following the correct procedure. The order of the Tribunal does not, therefore, amours to an order of remand as has been canvassed by the learned counsel for the petitioner.

5. As for the other ground that the petitioner stood automatically restored to service on the acceptance of the appeal, therefore, the direction issued by the Tribunal that he should not be reinstated into service and not paid salary is without jurisdiction also does not appear to be well-founded. There is no material before us to show that the petitioner was not under suspension during the continuance of the inquiry. If that were the position he did not on acceptance of his appeal automatically become entitled to be re-instated into service. Moreover, we find that there were specific prayers in the appeal filed before the Service Tribunal that the petitioner was entitled to all benefits full pay, increments and facilities from 18-12-1974 onwards, and, therefore he wanted the Tribunal to pass specific orders, with respect to this prayer. The Tribunal was not inclined to consider this part of his prayer favourably and accordingly passed the order now impugned before us. But a close reading of the orders does not indicate that the Department has been debarred from re-instating the petitioner and paying the arrears of salary because this aspect has been left to be considered by the Department. We have no doubt that it shall proceed to do this in accordance with the relevant rules and pass appropriate orders. With this clarification this petition stands dismissed.

Petition dismissed.

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