1985 PLP (C (PLC)

Aga Asif Jafery for Appellant. A. G. Humayun District Attorney for Respondents. Qaiser Mahmood Khan, ex‑Junior Clerk, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Director of Education Schools, Dera Ghazi Khan Division Dera Ghazi Khan, Director, Public Instruction (Schools) Punjab, Lahore and Secretary, Education, Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned order dated 25th February, 1984 passed by respondent No. 1, whereby he was dismissed from service, be set aside as being without lawful authority, and he be reinstated in service with all back benefits.

3. Brief facts of the case are that the appellant was convicted by the Summary Military Court to an imprisonment of 6 months and a fine of Rs. 10,000 on the charge of moral turpitude. However his sentence was remitted and he was let off. Similarly he did not pay any fine. After coming out of Jail, no action was taken against him and ultimately on 25th February. 1984, he was dismissed from service on account of conviction by the Summary Military Court and retrospectively too. He filed appeal before the next higher authority, which has not been disposed of so far, therefore, he has come before this Tribunal after the expiry of 90 days plus 30 days. Hence this appeal.

4. I have heard the learned counsel for the appellant as well as learned District Attorney assisted by the Directorate representative Mr. Muhammad Ishaq Saqi, Assistant Director Education, D. G. Khan, and have perused the entire record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the case suffers from Inches on the part of the respondents on the ground that it was within their knowledge that the appellant has been convicted on 1st September, 1981, but they did not proceed against him under the rules. It was only in the year 1984, that on one fine morning the respondents woke up and dismissed him from service under the Punjab Civil Servants (E&D) Rules, 1975, by order, dated 25th February, 1984, w.e.f. 1st October, 1981. According to the learned counsel for the appellant this very fact goes to the root of the case, as the Department had no business to keep quiet for a period of 3 years thus creating a hope/right in favour of the appellant that he had not been proceeded against under Rule 9 which was in the field at the proper time. It has been further submitted that under the Mandatory provisions of Rule 9 which stood amended by this time by the Government, the appellant had to be served with a show‑cause notice and without observation of this procedure, the order otherwise would become ineffective, illegal. Lastly it has been argued that no order of dismissal could be passed retrospectively as the same would be effective from the date it had been so passed. Reliance has been placed on 1983 P L C (C S) 1260 and 1983 C L C 1678.

6. On the other hand learned District Attorney assisted by the Assistant Director Education, D. G. Khan, representing the respondents, has submitted that actually this delay occurred due to the fact that the Department was bifurcated into Divisions and the case of the appellant fell to the lot of D. G. Khan in 1982, therefore, the Department at D. G. Khan did not know what had happened earlier at Multan. According to the Assistant Director the appellant himself came‑forward in November, 1983, after a lapse of 2 years 1 month that he should be given his job which he occupied earlier before his conviction. It has been further pointed out that he was asked to provide certain documents and after completion of the case, impugned order was passed.

7. With regard to the show‑cause notice it has been submitted that actually reliance was placed on sub‑rule (2) of rule 9 which empowers the Authority to give reasons in writing when it was not possible to give notice to the accused person. With regard to the argument in connection with retrospective dismissal, it has been submitted that the appellant himself has wanted more than 2 years, therefore, the Authority had to take initial date of conviction, applicable to his dismissal.

8. I have given my anxious thought to the arguments so advanced by the parties and find that the point of laches raised by the learned counsel for the appellant has hardly any force, as the appellant kept silent over a period of more than 2 years and due to bifurcation of Directorate it was not possible for the Department itself to find out what happened to the case of the appellant, even otherwise the factum of conviction remains and mere delay in taking action against the same cannot remove the stigma which he had incurred in the past.

9. With regard to the argument of the learned counsel for the appel lant that the respondents have failed to comply with the mandatory provisions of Rule 9 by not giving a show‑cause notice to the appellant, I have no hesitation to accept this argument as rule 9 is very clear on this point. Under this rule a Government servant whether he is convict or not is entitled to a show‑cause notice and action under the Efficiency and Discipline Rules could be taken against him after he is informed about the action through the said show‑cause notice. The pro vision on which respondents have relied only provides that in case where it is not possible/practicable to serve a notice on a civil servant, then the Authority will record reason and dispense with the same. In the present case no such eventuality has been cited, therefore, the order is liable to be set aside on the ground that it is in clear violation of mandatory provision of rule 9.

10. With regard to the dismissal from retrospective effect law on this point is very clear, which this Tribunal as well as Lahore High Court has settled so far i. e. dismissal always taken effect prospectively and not retrospectively.

11. The result is I accept the appeal, set aside the impugned order and direct that the appellant be restored in service with all back benefits. The respondents are fully within their right to proceed against him a, provided under rule 9 by giving him a show‑cause notice. However there will be no order as to costs. A. E