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Case No.99 of 1983. decided on 14th December, 1983.

‑‑‑R.9‑‑Removal from service‑‑Civil servant convicted in murder case‑ Removed from service with retrospective effect after affording opportunity of defence‑‑Order of removal challenged as unlawful‑‑Civil servant being convict in heinous offence like murder, held, not fit to be retained in service from all point of views.

‑‑‑ Retrospective order‑‑No executive order could be passed retros pectively.

P L D 1953 Lah. 295 rel.

Ghulam Hussain Khan for Appellant.

A. G. Humayun, District Attorney for Respondents.

Muhammad Ehsan has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Commissioner, Sargodha Division, Sargodha and the Assistant Commissioner/ Collector, Bhalwal Division, Bhalwal, as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned order dated 19‑9‑1982 of the Assistant Commissioner/ Collector, Bhalwal, District Sargodha and the appellate order dated 15‑1‑1983 of the Commissioner, Sargodha Division, Sargodha be set aside and the appellant be re‑instated in service with back benefits.

3. This appeal is at the stage of preliminary hearing. However, the parawise comments on this appeal were called from the respondents he parawise comments received from the Assistant Commissioner/Collector, Sub‑Division Bhalwal, were supplied .to the learned counsel for the appellant. This case was argued by the parties on 4‑12‑1983 at Sargodha Circuit and was disposed of at the stage of preliminary hearing.

4. Brief facts of the case are that the appellant while posted as Patwari Land Reforms, Bhalwal, was arrested on 4‑4‑1966 in case F.I.R. No.45 dated 3‑4‑1966 under section 302/307/148/149, P.P.C registered against him and was relieved from service by D.C./Collector, Sargodha vide order dated 12‑5‑1966. The appellant was ordered to be placed under suspension vide Commissioner's order dated 24‑1‑1967. Later on, he was sentenced to transportation of life vide Additional Sessions Judge, Sargodha's order dated 1‑1‑1967. On appeal, the appellant was acquitted by the Lahore High Court, was released from Multan Jail on 28‑5‑1968 and was re‑instated in service by the D. C . /Collector vide order dated 29‑10‑1968. On an appeal, filed by the complainant party, the order of the Lahore High Court acquitting the appellant, was set aside by the Hon'ble Supreme Court of Pakistan vide judgment dated 8‑5‑1974 and the appellant was again arrested on 1‑9‑1974. He was consequently again placed under suspension vide order dated 3‑9‑1974. He was finally released from Jail on 4‑5‑1980. The appellant applied for his reinstatement in service. However, a show‑cause notice was served by the A.C./Collector, Bhalwal as to why he should not be dismissed from service with effect from 1‑9‑1974, the date of his arrest after conviction by the Hon'ble Supreme Court of Pakistan. The appellant submitted reply which was considered by the A.C./Collector, Bhalwal. The A. C. also heard him in person and removed the appellant from service vide impugned order dated 19‑9‑1982 by A.C./Collector, Bhalwal w.e.f. 1‑9‑1974. the appellant made an appeal to the Commissioner, Sargodha Division, Sargodha which was also rejected vide his order, dated 15‑1‑1983. Hence this appeal.

5. I have heard the parties. It has been argued by the learned counsel for the appellant that the learned A.C./Collector, Sub‑Division Bhalwal misread the provisions of Rules 9(i) of the Punjab Civil Servants (E & D) Rules, 1975 and removed the appellant from the service which is contrary to the provision of the ibid rules. Under the said rules the A.C. could remove the appellant from the service if the appellant was convicted of an offence of moral turpitude. It was pointed out by the learned counsel for the appellant that "Moral turpitude means anything which is done contrary to the good principle, morality i.e. anything that injures the moral fibre of a person and lowers him down in moral values." In the case of the appellant, he was convicted of the offences of murder or attempt to murder punishable under section 302/307, P.P. C. These offences do not constitute an offence of moral turpitude. Thus, the appellant was incorrectly punished by the A.C./Collector, Sub -Division Bhalwal and penalty imposed upon the appellant by him is thus, without legal force and is unlawful. It has been also submitted by the learned counsel for the appellant that the impugned order dated 19‑9‑1982 of respondent No.2 shows that the appellant was removed from service w.e.f. 1‑9‑1974 i.e. with retrospective effect. But according to the Ruling reported in P L D 1953 Lah. 295 and the instructions contained S G A & I D Memo. No. S.O.RVIII‑2‑22/60, dated 13‑8‑1960, such an order cannot be passed with retrospective effect, the same shall have to take effect from the date of the order and not from the date of verdict given by the Court. Thus the impugned order of respondent No.2 on this score alone is nulity in the eyes of law as well as contrary to the instructions issued by the Government.

6. On the other hand, the learned District Attorney has submitted that the appellant is a convict who was sentenced to transportation for life under section 302130711481149, P.P.C. as is clear from the judgment of the supreme Court of Pakistan. Thus, he was not a fit person to be retained in service and was correctly removed from service by the competent authority. A person who is a convict in a heinous offence like murder is not a fit person to be retained in service from all point of views.

7. As per objection of the appellant's counsel that the appellant cannot be removed from service retrospectively, it has been pointed out by the learned District Attorney that the appellant was arrested on 1‑9‑1974 and was placed under suspension w.e.f. 2‑9‑1974. The appellant remained in the jail as a convict and was released from jail on 4‑5‑1980. Thus, the appellant remained continuously out of service from 1‑9‑1974 onward till the date of his removal from service and was not entitled to any type of benefits. Thus, the order of his removal from service w.e.f. 1‑9‑1974 has been correctly and validly passed by the respondent No.2.

8. I have given my anxious thought to the arguments of the parties and have consulted the record of this case very carefully. The appellant was convicted and sentenced to transportation for life by the Additional District and Sessions Judge, Sargodha, vide his order dated 1‑11‑1967 which conviction was set aside by the Hon'ble Lahore High Court. When the appeal came up before the Hon'ble Supreme Court of Pakistan, the order of the Lahore High Court was set aside and the conviction/ sentence awarded by the trial Court was upheld vide Hon'ble Supreme Court's order dated 8‑5‑1974. Thus, I agree with the stand taken by the respondents and the learned District Attorney that appellant being a convict in a heinous offence like murder is not fit to be retained in service from all point of views. I also find that the legal formality as required under the Rule 9(i) of the Punjab Civil Servants (E & D) Rules, 1975 has also been complied with by the competent authority i.e. Assistant Commissioner/ Collector, Bhalwal Sub-Division, Bhalwal, before removing the appellant from service by issuance of a show‑cause notice and by affording the opportunity to the appellant to defend himself. Thus, the impugned order dated 19‑9‑1982 of respondent No.2 is a valid and legal order upto the extent of removal of the appellant from service. As far as the objection of learned counsel for the appellant that the respondent No.2 could not remove the appellant retrospectively, the arguments advanced by the learned District Attorney are not convincing, as per settled law, no executive order can be passed retrospectively. The appellant should have been removed from service w.e.f. 19‑9‑1982, the date on which the order of removal from service was passed by the A.C./Collector, Sub‑Division, Bhalwal.

9. The upshot of the above analysis is that the order of removal of the appellant from service of Assistant Commissioner/ Collector, Sub -Division, Bhalwal and order of the Commissioner, Sargodha Division, Sargotha are valid orders. As far as removal from service is concerned, the order cannot be passed retrospectively as per settled principle of law. Thus, the date of removal from service of the appellant is modified w.e.f, 19‑9‑1982, the date of passing the order of the A.C./Collector, Sub‑Division, Bhalwal and not w.e.f. 1‑9‑1974 (retrospectively). With the above modification, the appeal is dismissed.

There will be no order as to costs.

M.I.

Appeal dismissed.

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