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Case No. 523 of 1984, decided on 18th July, 1984.

‑‑Dismissal from service‑Cannot be made retrospective‑Appellant dismissed from service consequent to conviction by Summary Military Court on charge of corruption‑Service Tribunal accepting against dismissal order with direction that appellant be served show‑cause notice‑ Show‑cause notice served and second order of dismissal passed by competent authority effective retrospectively from date appellant was initially arrested by Anti‑Corruption Police -Second order, in circumstances, held, could be effective only from date it was passed and not retrospectively and appellant, held, entitl ed to subsistence allowance for entire period‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Punjab Service Tribunals Act (IX of 1974), S. 4.

‑‑S. 9 (1) ‑ Conviction by Summary Military Court ‑ Held rightly made a ground for dismissal from service.

Haji Mushtaq Ahmad Aqil for Appellant,

Muhammad Bashir has filed this appeal under section 4 of the P. S. T. Act, 1974, which is still 'at the stage of preliminary hearing. This appeal is directed against the order of Senior Civil Judge, dated 28th February, 1984 and District Judge dated 4th June, 1984.

2. Brief facts of the case are that the appellant was convicted by the Summary Military Court on 26th October, 1979, when he was raided by the Anti‑Corruption Team headed by Military Officer. This conviction was for a period of six months with a fine of Rs. 3,000. The appellant was suspended immediately and later on dismissed from service when he was convicted by the Military Court. The said Process Server was released from New Central Jail on 30th June, 1980. Without bringing this matter of his release from Central Jail to the notice of Authority he filed appeal before the Punjab Service Tribunal on 23rd June, 1982 which was accepted on 7th November, 1983, with the direction that he would be served with a show‑cause notice. He was served with a show‑cause notice under orders of this Tribunal and has been dismissed from service by the learned Senior Civil Judge on 28th February, 1984, with retrospective effect i. e. 26th October, 1979, the date on which he was so arrested. He filed appeal before the District and Sessions Judge Vehari, who maintained the same.

3. I have heard the learned counsel for the appellant at length and have perused the record of this case carefully.

4. Learned counsel for the appellant has submitted that there was no provision under the E & D Rules to dismiss a civil servant with retros pective effect. For this he has relied on 1974 P L C (C. S. T.) 289. It has been further submitted that the appellant has been attending the office during the period of suspension and at one stage when he applied in the year 1980, the Senior Civil Judge allowed him his subsistence allowance as well as his pay for October, 1979 on 26th October, 1979.

5. I have taken into account the entire facts of this case and have attended the arguments of the learned counsel for the appellant. As far as the question of retrospective dismissal is concerned, the law on this point is very clear that no civil servant can be dismissed with retrospective effect. The orders of dismissal will always be effective from the date on which these have been issued. In view of this I have no hesitation to set aside the order to this extent by modifying the same that the appellant stands dismissed from the date of effective order so passed by the compe tent authority on 28th February, 1984.

6. With regard to the dismissal of the appellant, it has been rightly made on the ground that a convict official cannot be allowed to remain in service and the word used in rule 9 (1) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, is that of only conviction of a civil servant, without any specific mention of any Court. This order is fully maintained.

7. As regards the claim of the appellant that the learned Senior Civil Judge and learned District and Sessions Judge cannot deprive him of the Subsistence allowance during the suspension period, I have no hesitation to hold that this is a justified claim. Firstly a civil servant cannot be suspended for an indefinite period and it is obligatory on the part of the respondent to either proceed against him under the E & D Rules or to reinstate him in service. If a civil servant is kept under suspension for an indefinite period it would be the choice of the respondent itself which does not provide support of any mandatory provision of law. In these circumstances, I am of the considered opinion that the appellant will be entitled to the subsistence allowance for the suspension period and would stand dismissed when the effective order was so passed.

The appeal 'is disposed of accordingly.

A. E.

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