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Case No. 40138 of 1983, decided on 14th June, 1983.

‑‑‑R. 9‑‑Dismissal from service on conviction by Court of competent jurisdiction‑‑Interim stay granted on' appeal but order of dismissal restored by successor appellate authority‑‑Held: A person once convicted shall have to be dismissed from service unless main judgment is suspended by appellate Court.

‑‑‑ Review‑‑Question whether Government was competent to grant permission to review order of predecessor authority when matter related to a civil servant under Efficiency and Discipline Rules, decided by Tribunal in affirmative, holding that same could be done by Government in matters of administrative control on its revisional side of jurisdiction.

Syed Jamshed Ali for Appellant.

A.G. Humayun District Attorney for Respondents.

. ‑‑Muhammad Saeed, Stenotypist to Assistant Commissioner Norwal, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Member (Rev.), Board of Revenue, Punjab, Lahore and the Commissioner, Gujranwala Division, Gujranwala, as respondents.

2. By virtue of this appeal he has prayed that the order dated 16‑10‑1982, addressed by respondent No. 1 to respondent No. 2 and order dated .30‑1‑1983, passed by the respondent No. 2, whereby respondent No. 2, was pleased to review and set aside his predecessor's orders dated 15‑12‑1979 and 22‑12‑1977,‑be set aside.

3. Brief facts of the case are that the appellant who was working as Stenotypist was convicted for an offence under section 409, P.P,C. read with section 5 of Act No. 2 of 1947, by the learned Special Judge Anti-Corruption and sentenced to imprisonment till the rising of the Court and a fine of Rs. 500 vide his judgment dated 31‑8‑1977. The appellant filed an appeal before the High Court in Appeal No. 939 of 1977, which has been admitted to regular hearing. On the basis of the said judgment of the learned Special Judge, the learned Deputy Commissioner Sialkot was pleased to dismiss the appellant vide order dated 19‑10‑1977. The appellant filed appeal against the said order before the learned Commissioner, Lahore Division, Lahore, who vide his order dated 22‑12‑1977, stayed the operation of, the said order of the Deputy Commissioner. Similarly when the service appeal of the appellant came for regular hearing before the Commissioner, Lahore Division, Lahore, the said Commissioner was pleased to order in the following terms:

"The proceedings in the instant appeal are, therefore, closed for the present. The Deputy Commissioner, Sialkot will please arrange to pursue the case in the Lahore High Court and get this file restored if the sentence already awarded to the appellant is upheld by the High Court. In the alternative, if the appellant is acquitted by the High Court, he may please allow the official to continue in service by withdrawing his order of dismissal".

The present Commissioner, Gujranwala Division, Gujranwala when came to know that a convicted Government servant is still continuing in service on the order dated 22‑12‑1977 he took up the matter and requested the Government to allow him to review the previous order of his predecessor. The matter was referred to the Board of Revenue in its revisional jurisdiction and the Board of Revenue was pleased to allow ‑the request so made by the Commissioner, Gujranwala Division lifter receiving the said permission the appellant was summoned and was heard in person. Learned Commissioner, upheld the order of the Deputy Commissioner by which he was dismissed from service being a convict. 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. The crux of the lengthy arguments of the learned counsel for the appellant is whether the Board of Revenue could grant permission to the Commissioner to review the order of his predecessor when the matter related to a civil servant under E a D Rules.

6. Learned District Attorney before entering into this proposition has admitted that of course there is an order of Commissioner, Lahore Division, Lahore, dated 22‑12‑1977, by which the operation of the Deputy Commissioner order, was suspended till the decision of the appeal. According to learned District Attorney, the second order of Mr. M. Afzal Kahut, learned Commissioner, Lahore Division, Lahore, has no where said, while disposing of the appeal of the appellant in the terms so mentioned above, in the earlier part of our judgment that the stay order so granted by his predecessor would remain in the field. According to the learned District Attorney, the learned Commissioner, Gujranwala Division, made a futile exercise by asking permission to review the order which in no way had granted immunity to the appellant as it did not extend the earlier interim stay order granted by his predecessor. However, on the legal plane, it has been submitted that the learned Commissioner, Gujranwala Division, has been granted permission to review and the same could be granted on the administrative side by the Government/ Board of Revenue, under its revisional jurisdiction.

7. We have given our anxious thought to the arguments so advanced by the parties and before going through the crucial issue in this case, it would be proper to deal with its past history so as to see how far the learned Commissioner was correct in seeking the permission to review the order of his predecessor.

8. The past history of this case is simple one which discloses that a civil servant /appellant was dismissed after he stood convicted by the Court of competent jurisdiction for an offence relating to moral turpitude. It is a well‑settled principle of law that a person once convicted shall have to be dismissed from service uless and until the main judgment is suspended by the Court of Appeals as mere admission of an appeal to regular hearing does not suspend the judgment automatically. In the present case, the Deputy Commissioner was fully justified to pass the impugned order as he had no alternative but to dismiss the appellant. When the appellant went in appeal before the appellate authority the Commissioner, Lahore Division, Lahore, the same was admitted to regular hearing and the order of the Deputy Commissioner was suspended. If this case would have been decided the same day, the matter would have been different. This appeal came for regular hearing before Mr. M. Afzal Kahut the successor of the learned Commissioner, who had passed the interim suspension order and he was pleased to observe while disposing of the appeal that the Deputy commissioner should pursuse the matter in the High Court to get the case expedited and in case the judgment is upheld, the appellant's dismissal will be fully justified and in case it was set aside the appellant would be restored in service. Learned counsel for the appellant wants us to believe that this order in a way has confirmed the earlier order of the predecessor of Mr. M. Afzal Kahut with regard to the suspension of the judgment passed by the Deputy Commissioner, therefore, the appellant should remain in service till the case was decided by the High Court. We have assessed this argument and are not impressed by the same. In fact the learned Commissioner Mr. M. Afzai Kahut,, should have disposed of the appeal with some final observation and should not have kept the matter in fluid state. This order lacks finality and is capabale of different interpretation suiting to the parties in this case. Learned District Attorney interprets this order has given no relief to the appellant while the learned counsel for the appellant insisted and vehemently contested that this order has kept alive the earlier order by which the impugned judgment was suspended. To our mind this order should have indicated by making it clear that till the decision of the High Court the impugned judgment of the Deputy Commissioner, would remain suspended. The lack of this observation has stored up this controversy which is unfortunate and to our mind, unless and until there is a positive indication by the authority that the earlier interim stay order would continue in the field till the decision of the appeal by the High Court, the presumption would be that the said authority has refused to extend the life of earlier interim stay order.

9. With regard to the legal objection as stated above as to whether the Government was competent to grant permission to the present Commissioner to review the order of his predecessor, we are of the considered opinion that same can be done by the Government in matters of administrative control, on its revisional side of jurisdiction. The Commissioner being subject to the control of Government, the Government was fully justified to permit him to correct the obvious error which has crept in due to faulty order, dated 15‑12‑1979.

10. The result is, we dismiss the appeal as being without any merit, any uphold the order dated 30‑1‑1983, by the Commissioner, Gujranwala Division. There will be no order as to costs.

M. I.

Appeal dismissed.

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