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Cases Nos. 493/1915 and 450/2025 of 1982, decided on 29th October, 1983.

‑---‑ R. 9 [as prior to amendment, dated 1st April, 1982]‑Dismissal, removal from service or reduction in rank on grounds of conviction and sentence of fine or imprisonment‑Rule 9 did not bestow any power on competent authority‑Appellants dismissed from service on grounds of conviction by Summary Military Court for alleged fraudulent payments made by them‑Impugned order purportedly passed in exercise of powers under r. 9, held. without jurisdiction and set aside by Service Tribunal ‑Punjab Service Tribunals Act (IX of 1974), S. 4.

1982 P L C (C S) 140 rel.

Masud Ahmad Riaz and Mian Mahmood Hussain for Appellants.

A. G. Humayun, District Attorney for Respondent.

‑Abdul Hafeez and Saleem Khan ex‑Sub‑Engineer and Sub‑Divisional Officer, respectively have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Secretary, Government of the Punjab, Communi cation and Works Department and the Chief Secretary, Government of the Punjab, Punjab Secretariat, Lahore, as respondents.

2. By virtue of these appeals they have prayed that the Notification, dated 15th February, 1982, whereby they have been dismissed from service w. e. f. 1st December, 1981, as a result of their conviction by the Summary Military Court No. 70 in the cases of fraudulent payment etc., detected in Road Construction Division; Shahdara, be set aside. As the same Notifi cation is impugned and same question of law is involved in both the cases, these‑are disposed of by one judgment.

3. The learned counsel for the appellants have argued that the said order of their dismissal from service has been passed by the Government in purported exercise of power under rule 9 of Punjab Civil Servants (Efficiency and Discipline). Rules, 1975 though on the face of it. Rule 9 as it existed up to 31st March, 1983, did not confer any power upon the Authorities rather it took way the power of passing any order under Effi ciency and Discipline Rules, 1975. The learned counsel for the appellants have relied upon our earlier judgment on this point in case of Azanl Khalil reported as 1982 P L C (C S) 140. It has been argued that since the scope and meaning of Rule 9 of Efficiency and Discipline Rules has fully been discussed in that case, the counsel rely upon that ruling.

4. On the other hand the learned District Attorney has controverted the arguments of the learned counsel for the appellants and has submitted that in view of the allegations as well as the conviction of the two appel lants there is no justification for interference with the impugned order of the Government. He could not however, distinguish Mr. Azam Khalil's case.

5. We have given our anxious thought to the contention of both the parties. We are inclined to accept the contention of the appellants that in these cases Rule 9 ousted the jurisdiction of the departmental authorities in such cases. This point has fully been examined and settled by us in the aforesaid case of Azam Khalil and relevant portion of the said judgment is quoted below :‑----

We have given our anxious thought to all the points raised by both the parties and would first of all reproduce rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which is the bone of contention before us :‑

"9. Rules not to apply in certain cases. ‑Nothing in these rules shall apply to a case‑‑

(a) where the accused is dismissed or removed from service or reduced m rank, on the ground of conduct which has led to a sentence of fine or of imprisonment ; or

(b) where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an oppor tunity of showing cause."

In the Punjab Civil Servants (E and D) Rules. 1975, rule 9 finds into place under Chapter III which lays down procedure for enquiry and imposition of penalties. Rules 5, 6 and 7 relate to the proceedings and rule 8 relates to the action to be taken by the authority after affording the accused officer an opportunity in person by the authori ty. It is interesting to observe that while framing rule 9 the framers of 1975 Rules have intended to omit the application of rules 5, 6 and 7 to a case of the present nature before us. Instead of doing so they used the words nothing in these rules shall apply'. This is the omission which, inter alia, goes directly to the root of the present case. Rules 5, 6 and 7 are the only enabling rules which bestow powers and by saying that nothing in these rules shall apply to a case of the present nature, the framers of these rules instead of bestowing the powers have withdrawn the same. While reading the West Pakistan (E & D) Rules, 1960 we find that this power is very much 'there. So in view of this defective pharaseology, we have no alternative but to hold that rule 9 did not bestow any power on respondent No. 2 to take any action against the appellant. It would be for the Government to amend the rule if it so desires." '

6. In view of the above discussion, we reiterate and reaffirm on above‑quoted previous view on this point and hold that the order passed by the Government in purported [letter] exercise of Rule 9 was totally without jurisdiction. We may point here that in paragraph 4 of the para wise comments, the Government has confirmed that the order was passed under Rule 9 ibid.

7. It is also brought on the record that our view in Azam Khalil case was duly accepted and implemented by Government by amending Rule 9 of the Efficiency and Discipline Rules, 1975 w. e. f. 1st April, 1982. However, the said amendment is not applicable in the present cases as these were decided, on 15th February, 1982. The amended rule is also reproduced below :‑---

"9. Certain rules not to apply in certain cases‑---

(1) Where a civil servant is convicted of an offence involving moral turpitude which has led to a sentence of fine or imprisonment, he may, after being given a show‑cause notice‑be dismissed, removed from service or reduced in rank without following the procedure laid down in rules 5, 6, 7 and 8

(2) Where the authority is satisfied that for reason to be recorded in writing, it is not reasonably practicable to give the accused civil servant an opportunity of showing cause it may impose any of the penalties under these rules without following the procedure laid down in rules 5, 6, 7 and 8."

8. We therefore accept the appeals, set aside the Notification, dated 15th February, 1982 and re‑instate the appellants as Sub‑Engineer and S. D. O. respectively. The Government is however, at liberty to proceed against them in accordance with the rules and law then applicable to the appellants.

There will be no order as to costs.

A. E. Appeals accepted.

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