P L D 1976 Supreme Court 202 (PLP)

No. E‑1/122‑S. O. lI(E)/62, Mian Muhammad Hayat, P. S. E. I. having not been honourably acquitted, the Governor of West Pakistan is pleased to order under rule 7.3(b) of the C. S. R. (Pb.) Vol. I Part I that the period of suspension of Mian Muhammad Hayat, P. S. E. I., from 8‑4‑1963 to 5‑3‑1964 shall not be treated as period spent on duty and that he should be allowed the subsistence allowance and compensatory allowances already drawn by him for the period according to the instructions contained in this Department order of even No. dated 28‑3‑1963. By Order of the Governor of West Pakistan. (Sd.) A. Rashid Kazi, Secretary to Government of West Pakistan, Irrigation and Power Department." The legality of this order was challenged by the respondent in the then High Court of West Pakistan, Lahore Seat, in his Writ Petition No. 2081 of 1964. On behalf of the respondent it was contended before the High Court that the dropping of the inquiry against him amounted to an honour able acquittal of the respondent and. therefore,. rule 7.3(a) of the Civil Services Rules (Punjab), Vol. I (hereinafter called the Rules) applied and he should have been given full pay for the period he remained under suspension. The learned Judges of the High Court did not agree with the contention. But upon a concession made by the learned Advocate‑General that on a proper interpretation of Annexure `B' whereby the respondent was re‑instated in service he could not be said to have committed any misconduct and was to be deemed to have been honourably acquitted for the purposes of the aforesaid Rule, the learned Judges ordered that the period of suspension of the respondent should be treated as period spent on duty and he should be allowed full pay for the period. Mr. Muhammad Shafi, learned counsel appearing on behalf of the respondent, has by way of a preliminary point, questioned the condonation of delay in the filing of the petition for special leave to appeal as ordered by this Court while granting leave to appeal on the 10th of October 1967. It appears that this Court had condoned the delay after having heard Mr Muhammad Shafi who appeared on behalf of the respondent before the Court at the time of the hearing of the petition for special leave to appeal. In these circumstances it is no longer open to the respondent to challenge the order of condonation. Mr. Riaz Ahmad, learned Assistant Advocate‑General appearing on behalf of the appellant Government, has contended that the onus was upon the respondent to show that he had been honourably acquitted as contem plated under rule 7.3(a) of the Rules. It has been argued that the respondent has failed to discharge this onus. In reply, Mr. Muhammad Shafi has contended that the aforesaid inquiry having been dropped the respondent must be deemed to have been honourably acquitted and, as such, it clearly attracted the operation of rule 7.3(a) of the Rules. The relevant Rule which requires consideration for the purpose of determining the dispute between the parties is as follows :‑ "7.3. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable ; or When a Government servant who has been dismissed, removed, or suspended is re‑instated, the revising or appellate authority may grant to him for the period of his absence from duty‑ (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed. removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension ; or (i) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs." Before I proceed to consider this question it is of advantage to advert to certain facts that appear on record. It appears that there was a criminal proceeding connected with the misconduct of the respondent against him and some other person in course of which the respondent had made a confessional statement under section 164 of the Code of Criminal Procedure before a First Class Magistrate. The respondent turned an approver and he was granted pardon. The respondent's statement and his evidence were relied on for the purpose of convicting the respondent's co‑accused and this was the reason that the inquiry against the respondent was dropped, but it was ordered that a suitable entry be made in his character roll. As a result of the dropping of the inquiry against the respondent the allegations of misconduct against him were not inquired into and deter mined on merits. This cannot possibly be regarded as amounting to a consideration of the allegations of misconduct against the respondent on merits and a finding that they were either false or not proved. The very word "acquittal" implies that there must have been a trial of the case on merits followed by acquittal of the accused. Under rule 7.3(a) of the Rules the acquittal should be an `honourable' one which implied, in my opinion,! that the acquittal must follow a finding of the 17ribunal concerned that the) allegations were false and not merely not proved. The view which I have taken receives support from the following observations of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, in the case of Sardar Ali Bhatti v. Pakistan (P L D 1961 Lah. 664), which I reproduce with approval :‑ "The expression 'honourably acquitted' is not defined in the rules or anywhere else. We shall, therefore, give the same meaning to it as it conveys in its ordinary and natural sense. Its ordinary meaning is that it has been found that the person concerned had been accused of the offence maliciously and falsely, and that after his acquittal no blemish whatsoever attaches to him. In cases where the benefit of the doubt is given to him or where he is acquitted because the parties have compromised or because the parties on account of some extraneous influence have resiled from their statements, then we think that in spite of the acquittal the person concerned cannot be deemed to have been 'honourably acquitted'. This expression is not recognised in the Code of Criminal Procedure. There only the word 'acquittal' is used. It is, therefore, obvious that it is not the function of the criminal Court to declare that the person concerned has been honourably acquitted or not. Having regard to the scope and mean ing of the aforesaid rule. we think that it is for the revising or appellate authority to form its opinion on the material placed before it, whether such a person has been honourably acquitted or not, It is left to the absolute subjective discretion of the authority. If the authority takes the decision by using its discretion and judgment, that the person concerned has not been honourably acquitted, then in exercise of writ jurisdiction this Court cannot convert itself into a Court of appeal and substitute its opinion for the opinion of the competent authority. But in the circumstances of the present case, and in the light of what has been stated above as to the meaning of the expression 'honourably acquitted' it is difficult to hold, even if we had the power to substitute our opinion, that the decision of the competent authority is wrong." The observations were made while considering rule 2044 of the Pakistan Railway Establishment Code, Vol. Il, which is similar to rule 7.3 of the Rules. Further support is lent by the following observations of this Court in the case of Divisional Superintendent, P. W: R. v. Bashir Ahmad (P L D 1973 S C 589) in respect of rule 7.3(a) :‑ "It is not controverted that the respondents secured declarations in their favour not because the charges of misconduct against them were false or unfounded but because their removal from service was summary or perhaps arbitrary and therefore violative of Constitutional guarantee, which requires the affording of reasonable opportunity to show cause against a proposed major penalty. It was perfectly open to the Railway Administration to draw fresh proceedings against the respondents even after the declaratory decrees in their favour and remove them from service after compliance with the above requirement of the Constitution. Therefore these cases cannot be treated as cases of honourable acquittal within the meaning of clause (a) above." it was, thus, entirely within the competence of the Governor to decide whether the respondent was 'honourably acquitted' so as to attract the provisions of rule 7.3(a). The Governor having decided the matter against the respondent it could not be challenged on a Constitution petition before the High Court. It has further been contended on behalf of the respondent that inasmuch as the learned Advocate‑General had conceded on the interpretation of the aforesaid Annexure 'B' and said that the respondent was to be deemed to have been honourably acquitted for the purposes of rule 7.3(a), the High Court could do nothing but to accept the concession and pass order accordingly. I am unable to accept this contention, for, the question involving interpretation of rule 7.3(a) of the Rules fell within the duty and function of the High Court, and it was for the Court to say whether the particular rule applied to the respondent irrespective of the concession made by the learned Advocate‑General. Such a concession is not contemplated under the law, nor does it, in any way, bind the particular party or the Court, and prevent the Court from doing its duty according to law. This view is consistent with the following observations of this Court in the case of Government of West Pakistan v. Nasir Ahmad Khan (PLD 1965 SC 106) "It has been sought to be explained that the admission in the High Court was made by the learned counsel for the appellants on a misapprehension of the correct position and that any concession on a point of law made by counsel could not bind the party he represent ed. The written reply filed in the High Court was also said to have been sent by mistake to the Court instead of an amended draft which was intended to have been forwarded to that Court. We, therefore, allowed the interpretation of the relevant rules to be canvassed before us on the merits." The following observations of Sajjad Ahmad Jan, J: (as he then was) in the case of Sharif Sultan v. Sher Muhammad Jan (P L D 1963 Lah. 606) also lend support to the view :‑ "Further, the admission that the gift in favour of the defendant was valid, being clearly wrong in its legal effect, can have no significance in supporting the defendant's title. There can be no estoppel against law nor can the admission of a party validate a transaction which is otherwise legally invalid. The admission on the part of Shahzadi Asafia Sultan Begum, even if it were admissible and binding, cannot validate the gift in favour of the defendant which was otherwise invalid. An erroneous admission does not bind the person making such admission. See Mangru Rai v. Shivanand Lal and another." Similarly, in S. K. M. Sivasubramania Nadar v. S. S. K. Subramania Nadar (A I R 1932 Mad. 409) it has been observed :‑ " . . . . the question is whether any admission or concession on the part of a pleader on a pure question of law, would estop the party from questioning it in appeal or revision. The trend of the authorities is against any such estoppel." Again, in Allahabad Bank Ltd. v. Punjab National Bank Ltd. (A I R 1939 Lah. 303) it has been observed "In any case, even if an erroneous statement was made by counsel in the course of arguments, I do not think that the Punjab National Bank can be held to be estopped from taking the correct legal position afterwards . . . . ." Furthermore. Annexure `B' upon which the learned Advocate‑General made the so‑called concession does not show at all that the respondent was honourably acquitted. The Annexure runs thus "Reference this Department order of even No. dated the 28th August 1963. The departmental inquiry against Mian Muhammad Hayat P. S. E. I. officiating Superintending Engineer having been dropped. the Governor of West Pakistan is pleased to re‑instate him in service and report him to the Water and Power Development Authority where he was serving prior to his suspension." I, accordingly, think that the appeal should be allowed and the impugned .order of the High Court set aside. The result is that the order dated the '7th of September 1964, passed by order of the Governor of West Pakistan shall remain in the field. In the peculiar facts of this case there should be no order as to costs. MUHAMMAD YAQUB ALI, C. J.‑I agree. MUHAMMAD GUL, J.‑I agree. ‑S. A. H. Appeal allowed.