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Case No. 928/1129 of 1984, decided on 29th October, 1985.

‑‑‑R. 9(a) [prior to amendment, vide Notification No. SOR I (S&GAD) 1‑55/81, dated 1‑4‑1982]‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Conviction by Summary Military Court on Charge under, S. 5, Prevention of Corruption Act, 1947‑‑Dismissal from service due to conviction‑‑Rule 9, of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, prior to amendment, dated 1‑4‑1982 contained no enabling power to impose punishment‑‑Patwari convicted by Summary Military Court‑‑Dismissal order passed by Assistant Commissioner‑ set side in appeal by Divisional Commissioner remanding case for fresh decision‑ Assistant Commissioner in compliance with remand order serving charge- sheet anti after departmental enquiry resulting in exoneration of Patwari from alleged charge re‑instating him in service‑‑Subsequently on a complaint that Patwari having been convicted could not be retained in service, Member, Board of Revenue/ Secretary to Government Punjab, Revenue Department setting aside re‑instatement order and ordering fresh proceedings‑‑Assistant Commissioner in pursuance of such order issuing show‑cause notice under amended r. 9 ibid and passing fresh dismissal order‑‑Earlier order passed by Assistant Commissioner on basis of findings of enquiry, in circumstances, held, proper, just and liable to be maintained and subsequent order o Member, Board of Revenue and resultant order of Assistant Commissioner, held, legally not maintainable.

1982 P L C 140 and 1984 P L C (C.S.) 654 rel.

‑‑‑S. 4‑‑Exhausting departmental remedy‑‑Appeal filed through punishing authority not forwarded to appellate authority‑‑Appellant, in circumstances, held, had no other choice but to avail of his legal right of filing appeal more Tribunal after waiting for, 90 days plus 30 days.

Riaz Anwar Asadi for Appellant.

Malik Muhammad Sadiq, Deputy District Attorney for Respondents.

Hamid Ali ex‑Patwari has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Assistant Commissioner/ Collector, Kabirwala, District Multan, the Commissioner, Multan Division, Multan and the Secretary to Government of the Punjab, Revenue Department/ Member, Board of Revenue, Punjab, Lahore as respondents.

2. By virtue of this appeal he has prayed that the appeal be accepted and impugned orders, dated 14‑3‑1984 and 8‑7‑1984, be set aside and appellant be re‑instated in service with all back benefits.

3. Brief facts of the case are that the appellant while working as Patwari in Salarwahin Kohna, Tehsil Kabirwala, was challaned under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act. 1947, and was convicted by Summary Military Court on 24‑7‑1980, for 3 months Rigorous Imprisonment. The Collector, Kabirwala vide his order, dated 16‑10‑1980, dismissed him from service. He filed appeal before the Commissioner, Multan Division, Multan, which was accepted by him and remanded the case to Assistant Commissioner/ Collector, for fresh decision. The Assistant Commissioner/ Collector Kabirwala, issued him a charge‑sheet on 24‑1‑1982, on the basis of original allegations which has resulted in his conviction. He also held inquiry in this case and exonerated him, vide his order, dated 31‑7‑1982, and re‑instated him in service. After a lapse of 11 years an application was submitted by M/s. Abdul Ghafoor and Haji Munir Ahmad, to the Commissioner. Multan Division, Multan, in which they made a complaint that A.C., Kabirwala, Mr. Bashir Ahmad had accepted illegal gratification and re‑instated the appellant, although he stood convicted by the Martial Law Authority. The Commissioner, Multan Division, Multan, after considering the said application made certain recommendations to the Secretary to Government of the Punjab, Revenue, Department/ Member, Board of Revenue, to set aside the order of re‑instatement of the appellant and proceedings should be initiated against the Patwari. The Secretary/ Member, Board of Revenue vide his order, dated 14‑3‑1984, accepted the recommendations of the Commissioner and set aside the order and directed the Assistant Commissioner, Kabirwala, for fresh inquiry, by remanding the order, dated 14‑9‑1981, strictly in accordance with the rules. Mr. Imdad Ali, Assistant Commissioner, Kabirwala, issued him a show‑cause notice under rule 9(a) and dismissed him from service, by his order, dated 8‑7‑1984. The appellant filed appeal before the Commissioner, Multan Division on 6‑8‑1984, but as the same remained undecided the appellant has come before this Tribunal after waiting for 90 + 30 days of the said appeal.

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

5. Learned counsel for the appellant has submitted as under:‑

(a) Rule 9 of the E & D Rules, which has been invoked against the appellant in 1980, has been struck down by this Tribunal in case of Azam Khalil reported as 1982 P L C 140, as a disabling rule and not enabling rule, therefore, any punishment under the said rule would be void and for this he has relied on the case of Abdul Hafeez reported as 1984 P L C (C. S.) 654.

(b) He has challenged the order of the Secretary/ Member, Board of Revenue, by submitting that actually the said order was misconceived because the learned Assistant Commissioner, Mr. Bashir Ahmad Khan, had strictly acted in accordance with the direction given by the learned Commissioner in his order, dated 14‑9‑1981, which required him to proceed afresh with the said case.

(c) The application of Abdul Ghafoor and Munir Ahmad has proved to be fictitious, baseless because both the persons appeared before the Assistant Commissioner and disowned the same. Their affidavit is also on record.

(d) The impugned order of Assistant Commissioner, Mr. Imdad Ali, suffers from inherent flaw that it pertains to the incident which occurred in the year 1980, when the amended rule 9(a) was not in existence.

(e) The very order of the Secretary, being based on misconception, all other orders would be of no consequence.

(f) Lot of controversy with regard to the filing of appeal by the appellant before the Commissioner, was made and this Tribunal came to the positive conclusion that the appeal was filed to the Collector for forwarding the same to the Commissioner, either it did not reach to the Commissioner or it remained undecided, therefore, this Tribunal can easily overlook the ingredient so laid under section 4 of the Punjab Service Tribunals Act, 1974, with regard to the imperative conditions.

6. On the other hand learned Deputy District Attorney has adopted the comments of the Department and opposed all the contentions of the appellant with all vehemence at his command and has submitted that whatever a verdict in Azam Khalil's case, the fact remained that the appellant has been dismissed under rule 9(a), which enables the Government to dismiss a person after giving him show‑cause notice when it has been so found that officer/ official has been a convict. According to the learned Deputy District Attorney a person who is basically a convict, is hardly a fit person to be retained in service.

7. I have given my anxious thought to the arguments advanced by the parties and find that the appellant was convicted by the Summary Military Court in the year 1980 and was dismissed from service under rule 9 of the Punjab Civil Servants (E & D) Rules, 1975, without any show‑cause notice. There is no dispute about the fact that this very issue came before this Tribunal in the case of Azam Khalil and this Tribunal was pleased to decide that the said rule 9 as it was, was disabling rule and no enabling rule. It will be useful to reproduce rule 9 at this stage:

"Rule 9. Nothing in these rules shall apply to a case:‑

(a) Where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment; or

(b) Where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."

In the Punjab Civil Servants (E & D) Rules, 1975, rule 9 finds its place under Chapter III which lays down procedure for inquiry and imposition of penalties. Rules 5,6 and 7 relate to the proceedings and rule 8 relates to the action to be taken by the authority after affording the accused officer an opportunity in person by the authority. It is interesting to observe that while framing rule 9 the framers of 1975 Rules have intended to omit the application of rules 5,6 and 7 to a case of the present nature before us. Instead of doing so they used the words 'nothing in these Rules shall apply'. This is the omission which, inter alia, goes directly to the root of the present case. Rules 5,6 and 7 are the only enabling rules which bestow powers and by saying that nothing in these rules shall apply to a case of the present nature, the framers of rules instead of bestowing the powers have withdrawn the same. While reading the West Pakistan (E & D) Rules, 1960, we find that this power is very much there. So, in view of this defective phraseology, we have no alternative but to hold that rule 9 did not bestow any power on respondent No.2 to take any action against the appellant." After this observation made by this Tribunal in the case of Azam Khalil v. Secretary S a GAID, the Government was pleased to accept the same and amended rule 9 in order to bestow the enabling power on it and further added that a show‑cause notice was a must before any action was taken under the said rule. In this situation the argument of the learned counsel for the appellant prevailes that as the case of the appellant was identical to the case of Azam Khalil, any action taken against him, under the said rule 9, which now stands amended, would be infructuous.

8. Beside this legal aspect of this case, what I further find is that the learned Member, Board of Revenue, also fell into error when it remanded the case to the Assistant Commissioner, Kabirwala with the observation that the earlier order passed by the A.C./Collector, Kabirwala was not in accordance with the remand order, dated 14‑9‑1981. In this respect I have minutely perused the order of learned Commissioner, Mr. H.R. Pasha, dated 26‑9‑1981, which is as under:‑

"I have examined the record of the case. Without going into the merits of the appeal, there is amply evidence to show that the procedure laid down in the Punjab Civil Servants (E & D) Rules has not been followed. The order of the learned Collector is, therefore, not maintainable in law. I, therefore, set aside the impugned order and remand the case to the learned Collector, Kabirwala Sub‑Division for fresh decision in accordance with the rules laid down in Punjab Civil Servants (E & D) Rules."

After receiving the said remand order the learned A. C. /Collector, Kabirwala, Mr. Bashir Ahmad Khan, started a fresh inquiry under the. Efficiency and Discipline Rules and going into the merits of this case, accepted the appeal and re‑instated the appellant provisionally in order to clothe him with the status of a civil servant and went into the entire record of this case, served a charge‑sheet upon the appellant to which he submitted reply and came to the conclusion that the appellant fell to his own relative prey when‑ knowing it that the complainant was annoyed because the appellant did not incorporate wrong Khasra number in the register at his dictum. He considered the plea of the appellant more plausible than the contention put forward by the complainant. After discussing the entire pros and cons of this case he came to the conclusion that the appellant was not guilty of the offence for which he has been so punished. The said order of the learned A.C./Collector obviously does not suffer with any patent error/legal defect, as well as it is a sound order keeping in view the merits of this case. In these circumstances the learned Member, Board of Revenue, has no justification to say that the order of Mr. Bashir Ahmad Khan, A. C. / Collector, Kabirwala, was not in accordance with the remand order passed by the learned Commissioner Mr. H.R. Pasha, therefore, an further action passed on such order, would also fall to the ground.

9. It will be useful to mention here that even Mr. Bashir Ahmad Khan, A.C./Collector, Kabirwala, came under clouds, and an inquiry was started against him to prove that by re‑instating the appellant he had erred in law as well had some ulterior motives to do so. This inquiry was conducted at the behest of learned Commissioner, Multan Sh. Farid‑ud‑Din Ahmad, but ultimately it ended into exoneration of said Bashir Ahmad Khan. This further strengthens the plea of the learned counsel for the appellant that all what happened against the appellant, after he was so re‑instated by Mr. Bashir Ahmad Khan, A.C./Collector, Kabirwala, was result of some misunderstanding/confusion which was initiated at the complaint of certain persons who later on disowned the same.

10. With regard to the plea of the learned Deputy District Attorney that the appellant has not exhausted the remedy which was available to him against the impugned order of Mr. Imdad Ali, A.C., Kabirwala, it would be sufficient to say that a complete probe was made by this Tribunal and it was found, established on record, that the appellant did file appeal within time with the A.C./Collector, Kabirwala for being forwarded to the learned Commissioner, Multan, but the same was either misplaced or unattended or purposely withheld and was not sent to the right forum i.e. the learned Commissioner Multan. In this manner the appellant had no other choice but to avail of its legal right of filing appeal before this Tribunal after waiting for 90 days plus 30 days of the said event. In view of this matter, it would be an exercise in futility to remand the case on this issue as the appellant cannot be made to suffer for the fault of those who did not perform their duty which was so enjoined upon them.

11. In view of the above analysis of the entire case this Tribunal is of the considered opinion that the order of Mr. Bashir Ahmad Khan, dated 31‑7‑1982, by which the appellant was re‑instated in service was a proper and justified order and is liable to be maintained, whereas order of the learned Member, Board of Revenue, as well as present impugned order of Mr. Imdad Ali, A.C./Collector, Kabirwala, dated 8‑7‑1984 suffer from legal inherent defects and cannot be maintained.

12. Resultantly I accept the appeal, set aside the impugned order of learned Member, Board of Revenue, dated 14‑3‑1984 and consequential order of learned A . C . /Collector, Kabirwala, dated 8‑7‑1984, and restore the order of Commissioner, dated 14‑9‑1981‑and'of A.C./Collector, dated 31‑7‑1982. The appellant is re‑instated in service from the date he was so restored by Kabirwala Assistant Commissioner/ Collector, vide order, dated 31‑7‑1982, and will also be entitled to the back benefits, of pay/service, etc. There will be no order as to costs.

A.E.

Appeal accepted.

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