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Case No. 403/452 of 1983.

‑‑ R. 9 and Punjab Civil Service Rules, Vol. 1, Part I, r. 7.5‑Con viction by criminal Court‑Departmental action ensuing there from- Conviction‑Mere admission of appeal by higher appellate Court and grant of bail‑Will not entitle civil servant to be treated as a person without conviction‑Conviction unless set aside or impugned judg ment suspended by higher appellate Court will remain in field‑Civil servant convicted by Court of competent jurisdiction‑Remains a convict and not entitled to continue in service.

Muhammad Ibrahim v. Commissioner Lahore Division 1975 P L C (C. S. T.) 93 ; Muhammad Tufail Shah v. Assistant Commissioner, Nankana 1981 P L C (C. S. T.) 234 and Hafiz Fazal Ilahi v. S. P., Rahim Jar Khan 1984 P L C (C.S.)1314) ref.

Muhammad Awais Shahed for Appellant.

A. G. Humayun, District Attorney for Respondents.

. ‑‑Muhammad Rafiq has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Member, Board of Revenue, Commissioner, Lahore Division, Lahore and Assistant Commissioner, Kasur, as res pondents.

2. By virtue of this appeal he has prayed that the impugned orders, dated 1st November, 1981 and 8th December, 1981 be set aside as being without lawful authority and the appellant be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant who was serving as Patwari was challaned by the Anti‑Corruption Judge for certain allegations of criminal nature and ultimately was convicted by the said Judge to 15 months' R.I. and confiscation of property involved in the said case. After the said conviction, the competent authority, without issuing any show‑cause notice, dismissed the appellant from service vide two impugned orders already mentioned in the earlier part of our judgment. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that in view of Muhammad Ibrahim v. Commissioner, Lahore Division (1975 P L C (C. S. T.) 93), in which it was held that the appeal against conviction was inherent right of a civil servant and the original conviction was not enough for proceeding of dismissal ex parte against the said civil servant. Learned counsel has also relied on Muhammad Tufail Shah v. Assistant Commissioner, Nankana (1981 P L C (C. S. T.) 234) in which a similar view has been taken by this Tribunal. Learned counsel for the appellant has relied his case on rule 7.5 of C.S.R. Vol. I, Part I, in which while giving the explanation of the said rule, it has been observed that the word Government would include the first right of appeal. Relying on these two authorities as well as on C.S.R. Vol, I, Part I, learned counsel for the appellant has submitted that the appellant, remedy was yet pending before the High Court, which had suspended the sentence of the appellant, there fore, the action taken by the respondent was without lawful authority. While relying on the said authorities C.S.R. learned counsel has further relied on our judgment in case of Azam Khalil v. Government of Punjab, in which we have decided that rule 9, under which action of dismissal was taken against the said Azam Khalil was not enabling rule but was disabling rule. While arguing his case, learned counsel for the appellant has further submitted that Government accepted this interpretation of the Tribunal and amended the Rule later on, in which it has been laid down that even under rule 9 a show‑cause notice was a must. Learned counsel for the appellant has also relied on in case of Hafiz Fazal Ilahi v. .S. P. Rahimyar Khan (1984 P L C (C. S.) 1314) where learned Judge of the High Court (Single Bench) held that even if there is no specific provision for issuing a notice to the person but law of fundamental requires that notice must be given to the person before action is taken against him.

6. On the other hand learned District Attorney has relied on the ins tructions of the Services, General Administration and Information Depart ment issued vide Letter No. S.O.R.I. (S & G A D) 1‑71/74, dated 26th June, 1975 in which this sort of issue has been discussed in detail and also rule 7.5 of the C.S.R. Pb. Vol. I, Part I, has also been considered. According to the District Attorney these instructions clearly laid down that there was no necessity to issue any show‑cause notice to the accused person who has been convicted and sentenced to imprisonment or fine in a criminal case by a competent Court of jurisdiction. However, in the concluding paragraph of these instructions; it has been stated that amendment of the rules in view of the above discussions, is being taken in hand. With regard to the principle of audi alteram partem, as held by the learned Judge of the Lahore High Court, in his judgment so referred above, the learned District Attorney has submitted that their Lordships of the Supreme. Court of Pakistan vide judgment 1971 S C M R ( ) have taken this point into consideration and their Lordships were pleased to hold that if a civil servant is heard on a later stage in such appeal or revision, he would have deemed to be heard in the said case. However, learned District Attorney has conceded that no civil servant can be dismissed with retrospective effect. So far as the case of Azam Khalil is concerned, learned District Attorney has submitted that he has taken no notice of the said case.

7. We have given our anxious thought to the arguments advanced by the parties and find that a civil servant, if he is convicted by a Court of competent jurisdiction, will remain a convict and will not be entitled to con tinue in service. For this we rely on our judgment in case of Muhammad Saeed v. Commissioner Gujranwala etc. No. as well as in case of Muhammad Ashraf and Abdul Rehman. We are of the considered opinion unless and until the said conviction is set aside by the higher appellate authority, the same will remain in the field unless and until it is found that the appellate authority was pleased to suspend the judgment itself. Mere admission of appeal and grant of bail, will not entitle a civil servant to be treated as a person without conviction.

8. The result is we dismiss the appeal as being without any force. There will be no order as to costs. Judgment be communicated to the parties.

M. Y. M, Appeal dismissed.

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