1994 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑The petitioner was removed from service by order dated 5‑9‑1992 in consequence of disciplinary proceedings. On appeal punishment of removal from service was converted into compulsory retirement by the Tribunal in its judgment of 28‑4‑1993.

2. However, during the pendency of his appeal before the Tribunal, the petitioner was reinstated in service by notification dated 9‑5‑1993 issued by the Collector concerned in pursuance of Central Board .of Revenue's Letter C.No.16/46/92‑ACE.II(Pt.), dated 12‑4‑1993 whereafter he joined his office on 9‑5‑1993 at Customs House, Lahore and submitted joining report on the same date.

3. It may be mentioned as an important circumstance that although Notification regarding reinstatement was issued on 9‑5‑1993, order to that effect had already been passed by the competent authority on 12‑4‑1993, a few days before the Tribunal's judgment dated 28‑4‑1993, converting the punishment of removal from service into compulsory retirement; which means that the impugned order was no longer in existence at the time of the Tribunal's judgment.

4. Anyway; in view of this development the petitioner made an application to the Tribunal on 12‑5‑1993 for reconsideration of the matter and modification of the Tribunal's judgment dated 28‑4‑1993 ordering his compulsory retirement from service. This was followed by another petition on 15‑5‑1993 based on similar grounds and with the same request. Yet another application was made on 15‑5‑1993 by him to achieve the same end; which was followed by application dated 22‑5‑1993 where it was prayed that the petitioner may be allowed to withdraw his appeal and the Tribunals' order for his compulsory retirement may be modified. In the wake of these petitions he filed a statement on 10‑6‑1993.

5. When the matter came up before us for hearing on 27‑6‑1993, we observed that certain questions had arisen for determination which were vital not only for this case but also for others which may in future come before the Tribunal for disposal. It was, therefore, proposed that the petition may be placed before a larger Bench which was ‑to be inclusive of the learned Members who decided the petitioner's appeal.

6. When the matter came up for consideration before the learned Chairman on 18‑3‑1993, he expressed the view that once an appeal had, been decided on merits and finally disposed of, it could not be withdrawn. It was further observed by him that he was not inclined to re‑open the appeal and constitute a larger Bench as there is no provision in the Act or other Rules. Another observation was that the application may be disposed of by the Bench according to law.

7. What we understand from the learned Chairman's Order is that although he was not inclined to constitute a larger Bench for consideration of the matter, he still appears to have been of the opinion that the application may be disposed of in accordance with law.

8. One of the questions involved for determination is as to what is the effect of the acceptance of the petitioner's departmental appeal and his reinstatement in service by notification dated 9‑5‑1993. Another such question is whether the department was legally bound to withdraw earlier notification dated 9‑5‑1993 regarding petitioner's reinstatement in service in compliance with the Tribunal's Order for his compulsory retirement pass‑d on his appeal.

9. We have noticed in the background of facts that an order for the petitioner's reinstatement in service had already been passed on 12‑4‑1993 by the competent authority in acceptance of his departmental appeal when the Tribunal's judgment converting the punishment of removal from service into compulsory retirement was delivered on 28‑4‑1993. Therefore, it is an admitted position that the impugned order of removal from service dated 5‑9‑1992 was no longer in existence at the time of Tribunal's judgment dated 28‑4‑1993.

10. As we see from the record, it was not brought to the Tribunal's notice on the date of hearing that the order of removal from service has been set aside by the competent authority in acceptance of his departmental appeal. Had it been so brought to its notice, the appeal would have been disposed of as having become infructuous. It was on account of want of information regarding the factual position obtaining at that time that the Tribunal dealt with the appeal on merits and decided it in accordance with law. In partial acceptance of the appeal, the penalty of removal from service was converted into compulsory retirement; which order has attained finality in view of the departmnent's failure to challenge its validity in an appeal before the Supreme Court.

11. Regardless of the factual position, however, we are of the view that the competent authority was not legally bound to withdraw its earlier notification of 9‑5‑1993, irrespective of the Tribunal's order for the petitioner's compulsory retirement. In actual fact, it should not have been taken, as the department appears to have done, as a positive order for compulsory retirement; for it was only a case of conversion of a graver punishment to a lesser one, obviously in a lenient view of the matter. Therefore, the Tribunal's judgment should not have been taken by the competent authority as having amounted to a positive order of compulsory retirement, placing it under any legal obligation to withdraw its earlier order dated 12‑4‑1993 whereby order of removal from service was set aside in acceptance of the departmental appeal. It may be pointed out that there is no doubt about the fact that the factual position was not brought to the Tribunal's notice and the judgment of 28‑4‑1993 was passed on the supposition and rightly so, that the impugned order of removal from service was still in existence. Anyway, we are of the considered opinion that the Tribunal's judgment should not have been taken by the department to have carried the effect of cancelling the departmental authority s latest order of 12‑4‑1993 and the resulting notification of 9‑5‑1993.

12. We hold the view that the departmental appellate authority was within its legal powers to decide the departmental appeal regardless of the Tribunal's judgment. The statutory rules of discipline and other relevant laws on service matters provide the departmental authorities with a legal infrastructure for the decision of departmental appeals and this structure is not in any manner adversely affected by the powers conferred upon the Tribunal, either under the Service Tribunals Act, 1973 or any other law.

13. In this view of the matter, we hold that the departmental appellate authority is still within its legal powers to withdraw or set aside its latest order of 10‑6‑19913 on review of the matter and reinstate the petitioner in service subject to just exceptions, which may include any action proposed to be taken against him. It will be in place to say that we feel that any such order passed by the competent authority in the fight of our observations will rather promote the ends of justice.

14. The petition accordingly stands disposed of with these observations. No order as to costs. AA./912/Sr.F Order accordingly.