P L D 1996 Supreme Court 592 (PLP)

RAJA AFRASIAB KHAN, J.‑‑In 1952, Syed Nazar Hussain Shah, the appellant was employed as General Clerk in the Cantonment Board, Peshawar There after, he had been serving in different capacities in Cantonment Public High School and Intermediate College. The employees in the said service were ordered to be placed under the direct control of Federal Ministry of Education with effect from 1‑6‑1975. On 31st of May, 1975, the appellant was appointed as Deputy Director in Directorate of Nationalised Cantonment Educational Institution, Islamabad in Grade‑

19. He assumed the charge of his office on 1‑6‑1975. In 1977, he was sent on deputation to serve as Deputy Director Bureau of Curriculum Development and Educational Extension Services, N.W.F'P., Abbottabad in Grade‑

19. He was also given 20% deputation pay. The competent Authority promoted the appellant to Project Director, Third Education Project, vide order, dated 11th of June, 1977 with effect from 1‑6‑1977. Allegations of financial irregularities were levelled against the officers including the appellant who were Working in the aforesaid Project. On 6th of May, 1981, the Governor‑cum‑Martial Law Administrator, N.W.F.P. suspended the appellant. An objection was taken that the appellant was a servant of the Federal Government and as such, he could not be suspended by N.W.F.P. Government. A writ petition was filed by the appellant challenging the validity of the said action. Being annoyed on filing the writ petition, the Governor issued directions to prosecute the appellant alongwith Ghulani Daud Khan, Assistant Engineer, Yousaf Sarwar, Sub‑Engineer, Ramzan Ali Kokab, Sub‑Engineer and SaJjad Ali Shah, Project Accountant. Likewise, several Contractors/suppliers were ordered to be tried by the Military Court. It was alleged that the then Governor had personal grudge against the appellant and such, he had apprehended that he would be sentenced for having committed no offence. He, therefore, did not join the proceedings before the Military Court. The proceedings under MLR 31 were initiated against him. On 30th of June, 1983, the Military Court convicted and sentenced the appellant in absentia suffer fourteen years R.I. plus confiscation of his movable and immovable properties. It may be noted that the co‑accused of the appellant were tried and acquitted of the charge by the Military Court on 4di of April, 1984. On account of conviction, on 3rd of September, 1983, the appellant was dismissed from service under the Government Servants (Efficiency and Discipline) Rules, 1973 with effect from 4th of August, 1983. The dismissal order reads: ‑‑ "The Competent Authority has been pleased to dismiss from service Syed Nazar Hussain Shah, a Grade‑18 Officer of the Directorate of Federal Government Educational Institutions in Cantts and Garrisons (on deputation to Government of N.‑W.F.P.) with effect from 4‑8‑1985 (Forenoon) on account of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973. " On 8th of December, 1988, the Federal Government remitted the sentences of all such persons who were, in absentia, convicted under M. L. R. 3

1. It was directed that said persons would be tried in lieu of substantive offences alleged to have been committed by them. On 29th of January, 1989, the appellant challenged his dismissal from service by filing appeal. It was dismissed by Cabinet Secretary on 27th of December, 1990. On 12th of January, 1991, an appeal was filed before Federal Service Tribunal which was dismissed on 7th of April 1993. On 13‑11‑1993, the impugned order was challenged before this Court. In the leave granting order, it was observed:‑‑ "Learned counsel for the petitioner contended that the petitioner was convicted under M.L.R. 31 for having not appeared before the Special Military Court. The sentences awarded to him stood remitted on 7‑12‑1988. He was not convicted under any other offence, therefore, he is entitled to reinstatement in service. The finding of the learned Service Tribunal that the sentences imposed by the Martial Law Authority under M.L.R. 31 included the charge under section 5(2) of the Act is erroneous because the petitioner was not tried even in absentia on that count." Learned counsel submits that after remission of sentence, the appellant was entitled to be reinstated in service as a matter of right. He argues that under similar circumstances, the co‑accused of the appellant were reinstated in service. By failing to do so, the appellant was surely subjected to discrimination which could not be permitted by law. According to him, only charge against the appellant was that he did not appear before the Military Court to face trial. He states that charge of misappropriation' was baseless 'because there was no evidence to connect him with the alleged financial irregularities. It is added that impugned order of dismissal was passed without collecting any incriminating evidence. Learned Tribunal did not appreciate/assess the material evidence available on record. An. injustice had, therefore, been done to him. The case of learned Deputy Attorney‑General was that remission of sentence would not absolve the appellant of ‑the allegations levelled against him. The departmental authority was, thus, right to take action against the appellant. We have heard the learned counsel for the parties and have gone through the record. We are of the view that the learned Tribunal did not advert to the material points involved in the controversy inasmuch as there was nothing on record to justify the authority to conclude that the appellant was also involved in the commission of the financial malpractices. The authority was undoubtedly, required to look into the evidence about the nature of financial irregularities allegedly committed by the appellant. It appears that the appellant was presumed to be guilty of misappropriation of public money. The impugned order was not passed by Tribunal on the basis of any evidence. The operative part of the. decision is: ‑‑ "We have heard the parties and are in full agreement with the learned counsel for the respondents that the order of the President of Pakistan regarding remission of sentences 'applies only to such cases as were dealt with under M.L.R.31 and this order does not, in any way, interfere with any other order passed by the Military Court under any other Act or Law. The punishment of fourteen years' rigorous imprisonment and forfeiture bf movable and immovable properties of the appellant was awarded to him while simultaneously dealing with the charges of corruption (enumerated at pages 23 to 27 of the file) under section 5(2) of the Prevention of Corruption Act and his conviction led to his dismissal from service in the terms of the provisions of the relevant rules. The argument of the learned counsel for the appellant that the punishment was awarded only under M.L.R. 31 is, therefore, not tenable.? The Tribunal appeared to have been convinced that dismissal of the appellant from service was justified because he was convicted under M.L.R. 31 read with section 5(2) of the Prevention of Corruption Act, 1947. This approach was not in line with the facts of the case and law applicable thereto. There is nothing to indicate that the appellant was also convicted and sentenced under section 5(2) of the Prevention of Corruption Act, 1947. Learned Law Officer admitted that the appellant was not tried for the charge of misappropriation of State money. This material plea was required to be decided on the basis of evidence to meet the ends of justice, Needless to observe that appeal is the continuation of the original proceedings out of which it had arisen. In any case, the appeal had to be decided keeping in view all the points raised and argued before the appellate forum. This has not been done in this case to meet the requirement of law. In such circumstances, this Court has always remanded the matters for their fresh decision to the appellate forum. In order to uphold the plea of the remand, reference be made to ' cases of Muhammad Ibrahim Chiragh Muhammad v. Pakistan 1980 SCMR 388, Sohrab Khan Kalwar v. Secretary to the Government of Sindh PLD 1980 SC 279, Muhammad Khan and others v. Abdul Majid and others 1981 SCMR 923, Meraj Din v. Muhammad Siddique 1981 SCMR 156, Ch. Abdul Majid v. Muhammad Hanif 1982 SGMR 473, Siddique Khan v. Abdul Majid PLD 1984 SC 289 and Muhammad Umar v. Muhammad Qasim 1991 SCMR 1232. In the peculiar background of this case, it is difficult to uphold the judgment of the . learned Tribunal. It is hereby set aside by accepting this appeal. The appeal of the appellant shall be deemed to be still pending adjudication. The learned Tribunal shall decide the appeal afresh after hearing the parties according to law as early as possible. M.B.A./N‑462/S? Appeal allowed