1996 PLP 1243 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The appellants, with the leave of this Court,. have called in question the order of High Court of Balochistan, dated 8-7-1991 allowing 'Constitution Petition No.89/91 .filed by respondent and directing his reinstatement in service with full back benefits. Leave was granted in the case, as follows:-- "The petitioners seek leave to appeal against the judgment of the High Court dated 8-7-1991 whereby it accepted the Constitution petition of the respondent.

2. The respondent was proceeded against under Balochistan Development Authority (Efficiency and Discipline) Rules, 1987. He was found guilty of misconduct and his services were terminated. He challenged the order in a writ petition before the High Court. The High Court accepted tile writ petition on the ground that proper inquiry was not conducted by the petitioner.

3. Learned counsel for the petitioner has submitted that the respondent was handed over the amount of Rs.59,495.84 in 1985 and he kept the said amount in his custody for about two years and thereafter deposited the same. The respondent admitted that the amount was lying in the office. The learned counsel stated that the respondent took three contradictory stands but ultimately he deposited the amount. The respondent is present in person. He has not cited any provision of law under which lie could retain the amount. He has not been represented and he wants to engage a counsel to meet the objection raised by the petitioner against the judgment of the High Court. Leave to appeal is granted to examine the validity of the impugned judgment." The facts to be noted in the case are that the respondent while working as Deputy Manager, Accounts, with the appellants, was suspended by the Chairman of the appellants on 16-12-1987 on the allegation that he had unauthorizedly kept with him a sum of Rs.59,495.84 relating to Gaddani Water Supply Scheme. A formal departmental inquiry in the case had taken place and in consequence thereof, the appellants terminated the services of respondent on 16-12-1989. The respondent challenged the order of his termination from service before the Board of Directors of the appellants but his appeal failed when it was dismissed on 19-11-1990. The respondent then filed a Constitution Petition No.89/91 which was accepted by the learned Judges of High Court of Balochistan by the impugned judgment, against which leave was granted by this Court, as' aforesaid. It is not disputed before us that the Efficiency and Discipline Rules, 1987 framed by the Authority under a statutory provision were applicable in the case. It is also not disputed before us that the inquiry held against the respondent was not strictly in accordance with E & D Rules of 1987. The learned counsel for the appellants, however, contended before us that after reinstatement of the respondent, in service as a consequence of the impugned order of the High Court a fresh charge-sheet was served on the respondent in respect of another amount of Rs.20,000 which he allegedly misappropriated and as a result thereof he was dismissed from service on 6-1-1992. The respondent preferred an appeal before Board of Directors against his dismissal from service and it appears that the Board of Directors in its meeting held on 8-6-1992 and 2-8-1992 reached the conclusion that the order dismissing the respondent from service, was very harsh one and accordingly directed the Chairman of the appellants to verify all the records and if the statement made by the respondent found to be correct, reinstate him in service without back benefits. It, however, appears that in consequence of the above decision, respondent was offered a fresh appointment on 6-12-1992 which according to the appellants he accepted but according to respondent he had appealed against the validity of this appointment before the departmental authority. The fact, however, remains that in spite of the charges of misappropriation levelled against the respondent on two different occasions he has been re-employed by the appellants in service. The learned counsel for the appellants contends that the subsequent re employment of the respondent with appellants was the result of the decision of the Board of Directors of the appellants on the appeal of respondent and as such this could not be treated as a continuation of his previous service so as to entitle him to claim back benefits. It is not necessary to examine here the effect of the subsequent employment of the respondent by the appellants as this matter is sub judice before the departmental authorities. Suffice it to say here that the previous termination of the services of the respondent was held to be without lawful authority and jurisdiction by the High Court on the ground that it had taken place contrary to the provisions of Efficiency and Discipline Rules, 1987 which were applicable to the case. The grievance of the appellants, however, is that the High Court while ordering reinstatement of respondent in service left it open for the appellants to initiate a fresh departmental inquiry against the respondent in accordance with the Efficiency and Discipline Rules, 1987 but at the same time directed that the respondent be paid all the back benefits. The contention of the learned counsel for the appellants is that since it was left open for the appellants to proceed against the respondent in the departmental inquiry in accordance with the Rules, the grant or refusal of the back benefits should have been determined in accordance with the result of the said departmental inquiry. To this extent, the contention of the learned counsel for the appellants appears to be not without justification. We, accordingly, partly allow the appeal and modify the order of the High Court in the case to the extent that in case the appellants elect to proceed against the respondent in a fresh inquiry in pursuance of the impugned E order dated 8-7-1991, the question of payment of back benefits to the respondent will depend on the result of departmental inquiry. With this modification, the appeal is disposed of but in the circumstances of the case, we will make no order as to costs. A.A./B-271/S Appeal partly accepted