1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑By this appeal the appellant Lutf Ali Talpur has impugned the original order of Secretary to Government of Sind, Labour and Cooperation Department, dated 26th February, 1986 and the appellate order of the Chief Secretary, dated 6‑11‑1986. Briefly stated the facts leading to this appeal are that appellant who was Assistant Registrar, Cooperative Societies, was served with a show‑cause notice dated 6‑10‑1981 when he was on deputation with the Sind Provincial cooperative Bank. After considering his reply dated 22‑10‑1981 a major penalty was imposed upon the appellant reverting him from the post of Assistant Registrar to that of Inspector for a period of two years vide order of the Secretary, Cooperation Department dated 29th December, 1981. The appellant preferred departmental appeal against his reversion as a result of which the reversion order was set aside by the Chief Secretary on the ground that the appellant was not afforded opportunity of personal hearing before the said order was passed against him. Thus the case came back to the Secretary, Labour and Cooperation Department obviously for doing the needful. However, by his order dated 19‑2‑1983, the Secretary withdrew the Notification No.S.O.(C I)7(2)78(POI), dated 29th December, 1981 from the date it was issued. In confirmation of the Secretary's above order, the Registrar Cooperative Societies, Sind also issued a notification dated 8‑8‑1985 not only withdrawing the show‑cause notice served on the appellant but also exonerating him from all the charges. Meanwhile the appellant was given posting order and he resumed his duties as Assistant Registrar w.e.f. 2‑6‑1984. Subsequently by his order elated 26th February, 1986, the Secretary, Cooperation Department treated the period between 1‑9‑1982 and 2‑6‑1984 during which the appellant had not joined his duties as Cooperative Inspector as leave due under the Rules as to be certified by the Accountant‑General. Dissatisfied with this order the appellant once again resorted to departmental appeal which was filed before the Chief Secretary. However, the said appeal was rejected vide order dated 6‑11‑1986. We have heard the arguments of the learned counsel for the appellant as well as learned Government Counsel (Mr. Imdad Hussain) and have also gone through the record. The impugned order dated 26th February, 1986 reads as under:‑ "No. SO (C‑11) 1‑28/78:‑ The period from 1‑1‑1982 to 2‑6‑1984 during which Mr. Lutf Ali Talpur, Assistant Registrar, Cooperative Societies did not join his duties as Cooperative Inspector in pursuance of Labour and Cooperation Department's Notification No. SO (S‑1) 7(2)/78‑I, dated 29‑12‑1981 will be treated as leave due under the rules to be certified by Accountant‑General, Sind." The learned counsel for the appellant attached the above order, contending that since the reversion order was withdrawn from the date on which it was issued, the appellant was entitled to full emoluments, as if the reversion order never existed. On the other hand, our attention has been drawn to second proviso to section 18, Sind Civil Servants Act, 1973, with the argument that it gives discretion to the authority setting aside the order of reversion etc. to determine the arrears payable to the accused official for the disputed period, as such authority may deem fit. Accordingly it is submitted that the impugned order made by the Secretary in exercise of his discretion is perfectly correct. In order to understand the implications of the above proviso, it would be useful to reproduce it as under:‑ "Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine." We have considered the arguments of both the learned counsel in the light of the requirements of the above proviso. No doubt the proviso referred to above confers a discretion on the authority setting aside the order of reduction in rank etc. to also determine the arrears payable to the official concerned. We are however, of the view that the instant case does not fall within the mischief of the proviso. The order of the appellant's reversion has been withdrawn rather than has been set aside. In our opinion there is a difference between the two situations The setting aside of the order involves appreciation of the case on merits. But that is not so when the order is withdrawn. 1n latter situation, the order absolutely evaporates as if it was never in existence. In such a case the position ante reverts and the official concerned would not be allowed to suffer in any manner. He would rather enjoy all monetary benefits right from the date of issuance of the impugned order as if the said order was never passed. It may however be pointed out here that the Secretary's order dated 19‑2‑1983 by which the appellant's reversion order was withdrawn is rather confusing. On one hand it shows that the appellant's reversion had already been set aside by the appellate authority (Chief Secretary) on the ground that personal hearing was not given to him before ordering his reversion while on the other hand that very notification by which appellant was reverted was withdrawn. Obviously the appellant's reversion having been set aside in appeal by the Chief Secretary, was not in existence when the Secretary became seized of the case and passed the said order. Thus the question of withdrawing of the appellant's reversion order at that stage did not arise. We are inclined to the view that after the case came back to the Secretary obviously for giving personal hearing to the appellant, he seemed to have realised after hearing the appellant and after going through the whole record of the case, that the show‑cause notice given to the appellant was uncalled for and without justification. Consequently he meant to withdraw the show‑cause notice and drop further proceedings but instead through oversight he with drawn the reversion order which, as stated above, was not in existence. This view is also fortified by the fact that after the appellant resumed his duties in 1984 and the question of determining his arrears for the period he had not performed his duties posed a problem, the Registrar, Cooperative Societies had to issue a fresh Notification dated 8‑8‑1985 whereby not only show‑cause notice served on the appellant was withdrawn but also the appellant was exonerated from all the charges levelled against him. Thus the Registrar paved the way for the Secretary to pass the impugned order as to determination of the arrears payable to the appellant for the disputed period. From the above discussion, it is crystal clear that all the charges made against the appellant by serving a show‑cause notice on him were subsequently withdrawn. After withdrawal of the charges nothing remained against the appellant to justify depriving him of any monetary benefit. The appellant's failure to join the lower post of Inspector would not provide valid reason to deny him the benefit of full emoluments of the post of Assistant Registrar. It is an admitted position that he had entered Government service directly as Assistant Registrar. Therefore, his reversion to lower post of Inspector was even debatable. We arc, 1 therefore, convinced that since appellant's reversion was set aside by the departmental appellate authority and subsequently the very charges on which the reversion order was based were also withdrawn, the appellant was entitled to all the benefits of the post of Assistant Registrar right from the date, he was deprived of the same. Consequently the impugned order which has the effect of curtailing the appellant's emoluments for the disputed period cannot be sustained. Therefore, appeal is accepted and the impugned order is set aside with no orders as to costs. S.S.Q./167/Sr.S Appeal accepted.