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Appeal No.18(K) of 1984, decided on 11th December, 1984.

‑‑‑Qui approbate non reprobate‑‑Estoppel and doctrine of "approbate and reprobate"‑‑No one can be allowed to accept one thing for one purpose and to reject same for another‑‑Appeal against dismissal from service of Sub‑Engineer before Service Tribunal contested as not maintainable on plea that he being on work‑charge establishment was not a civil servant‑‑Contention not supported by any conclusive evidence and conduct of respondent Department contradicting its stand because Sub‑Engineer (appellant) proceeded against and dismissed under Government Servants (Efficiency and Discipline) Rules, 1973 and thus stood admitted that he was a civil servant‑‑Respondent Department, in circumstances, held, could not be allowed to turn round and raise contention that ‑Fe ‑was not a civil servant in view of principle of 'estoppel' and doctrine of "approbate and reprobate"‑‑Service Tribunals Act (LXX of 1973), S.4.

‑‑‑R.8(b)‑‑Exclusion of show‑cause opportunity‑‑Rule 8(b) can be availed of only if it is not reasonably practicable to give accused an opportunity of showing cause‑‑Facts and circumstances found by Service Tribunal that it was well practicable to give accused opportunity of show cause and resort to r.8(b) not justified‑‑Impugned penalty of dismissal from service unheard, in circumstances, held, liable to be struck down‑‑Service Tribunals Act (LXX of 1973), S.4.

Niamatullah Qureshi for Appellant.

Wajihuddin Ahmed for Respondents.

Date of hearing: 1st December, 1984.

‑‑The relevant background giving rise to the present appeal, is that the appellant, then a Foreman, performing the duties of Sub‑Engineer in the Pak. P.W.D., Karachi, during 1978‑79, had submitted complaints to the different agencies and higher authorities levelling allegations of misdeeds and maladministration against various superior officers of the Department. Vide an order dated the 21st of October, 1979, he was placed under suspension and charge‑sheeted on the 23rd of October, 1979. He replied to the charge- sheet denying the charges levelled against him. Mr. S. Kazim Raza, Assistant Engineer, was then appointed as Enquiry Officer. It appears that while the enquiry was in progress, the appellant filed a constitu tional petition before the Sind High Court which was disposed of by a Division Bench of that Court vide its judgment dated 27‑1‑1983 on the basis of a statement of Mr. S.A. Mannan, the counsel for the Respondent Department that the petitioner shall be taken in service and his claim for the difference of salary will be considered in accordance with law. In spite of this, it has been alleged by the appellant that, he was not allowed to resume duty till 3‑2‑1983 when the respondents were forced by the order of the superior authorities and advice of the Law Division to re‑instate him. However, on 15‑10‑1983 respondent No.2 passed an order dismissing the appellant from service. The appellant then submitted a departmental appeal to respondent No.3 on 23‑10‑1983 which was returned to him with an advice to submit the same through proper channel. Though the appellant, at that time, was not in service, nevertheless he submitted an appeal through respondent No.1 who withheld it. The appellant then after the expiry of ninety days statutory waiting period, filed the present appeal.

2. A preliminary objection about the competence of the present appeal was raised on behalf of the respondents that the appellant was under the establishment of work Charged Employees of the Federal Government and as such he was not civil servant within the meaning of section 2(1)(b) of the Civil Servants Act, 1973. However, this contention was not supported by any conclusive evidence and it could not be established that the appellant was employed on 'work charged basis'. On the contrary, the conduct of the respondents itself contradicts this stand in that the appellant was proceeded against and dismissed under the Government Servants (Efficiency and Discipline) Rules, 1973, and thereby it stands admitted by them that he was a civil servant. The respondents, therefore, cannot be allowed now to turn round and say that the appellant was not a civil servant. Needless to say that under the universally accepted principle of 'estoppel' and the docrine of 'approbate and reprobate' enshrined in maxim "qui approbate non reprobate", no one can be allowed to accept one thing for one purpose and to reject the same for another. The position being so clear, the preliminary objection is devoid of any substance and is accordingly overruled and the appeal is held to be competent.

3. The learned counsel for the appellant has assailed the impugned order in various grounds of law and facts. He mainly emphasized that the appellant was dismissed from service without affording any opportunity of showing cause and defend himself in purported exercise of the powers under rule 8(b) of the Government Servants (Efficiency and Discipline) Rules, 1973. The said rule, however, can be availed only if it is not reasonably practicable to give the accused an opportunity of showing cause. We find sufficient force in this contention. Obviously, in the instant case, it was well practicable to give the accused an opportunity of showing cause. We are, therefore, quite clear, in our mind, that there was no occasion or justification whatsoever to resort, to rule 8(b) of the Government Servants (Efficiency and Discipline) Rules, 1973. The appellant thus has been unjustifiably awarded the maximum penalty of dismissal from service and that too by condemning him unheard which is against all canons of law and justice. The impugned order is, therefore, liable to be struck down on this score alone.

4. Apart from the above, a perusal of the record has revealed that the appellant was unjustly suspended from service and in spite of the undertaking given before the Sind High Court, the respondents remained reluctant to re‑instate him. In any case, when, in pursuance of the said undertaking the appellant was taken back in service it would be presumed that the charges against him were dropped and he would be deemed to have been absolved of these charges. For this reason also the disciplinary proceedings against the appellant and the impugned order passed thereon were unwarranted and uncalled for.

5. In the result the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re‑instated into service from the date of his dismissal from service with all consequential benefits. We also endorse the opinion of the Law Division on record that for the suspension period, the appellant would be deemed to have been on duty and payment for that period would be regulated by proviso (a) to F. R.‑51 read with Finance Division O. M., dated 10‑6‑1977. Order accordingly.

6. No order as to costs.

A.E. Appeal accepted.

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