1979 PLP 504 (SCMR)

NASIM HASAN SHAH, J.‑This is a petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan for leave to appeal against the Judgment of Service Tribunal, Peshawar, dated the 16th April, 1978 in Appeal No. 25 of 1975. The petitioner Habibullah who was working as a Senior Clerk in the office of the Agency Surgeon, Sloth Waziristan, Wana, was charge‑sheeted under the N.‑W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973 by the Agency Surgeon, Wana, and was ultimately dismissed from service vide his order dated 18‑12‑74, after inquiry and issuance of show‑cause notice. The petitioner's departmental appeal addressed to the Director, Health Services, N.‑W. F. P. Peshawar, was dismissed on 8‑12‑

75. Con sequently he filed a service appeal before the N.‑W. F. P. Service Tribunal, Peshawar. The Tribunal found that the inquiry against the petitioner was conducted in violation of the mandatory provisions of the Rules and, therefore, the order of the Department could not be maintained. The conclusion, however, was expressed in the following terms "In the result we accept the appeal, set aside the impugned orders and direct the respondents that a fresh inquiry against the appellant be held in accordance with the provisions of the Rules. In view of the fact that the appellant has not been discreet in his conduct and adopted an attitude of confrontation and non‑co‑operation during the departmental proceedings initiated against him, we decline to pass an order of his re‑instatement to s9rvice at this stage. The question of his re‑instatement to service from a particular date, or otherwise; and his entitlement to emoluments, etc. since his dismissal from service onward, would also be determined by the competent authority alongwith the question of his guilt or otherwise at the time of conclusion of the fresh inquiry now directed by us." This order of the Tribunal was passed on 16‑4‑78 and the petitioner feels aggrieved by its concluding portion which has been reproduced above. Hence this petition. Mr. Riaz Ahmad Pirzada counsel for the petitioner has contended before us that the above observations are in excess of the jurisdiction of the Tribunal because the Tribunal could either accept the appeal or reject it, The Tribunal, however, while accepting the appeal of the petitioner had set aside the order of the Agency Surgeon, Wana, dated 18‑12‑74 but at the same time it has put the petitioner in the agony of suspense by further directing the authority concerned to withhold the petitioner's emolument still the conclusion of the fresh departmental inquiry which might again culminate in an appeal to the N.‑W. F. P. Service Tribunal. The submission is that the Service Tribunal is inherently contradictory as it has accepted the appeal, but at the same time nullified its effect by not restoring the petitioner to service. Furthermore, the Tribunal had acted in violation of the provisions of section 7(1) of the N.‑W. F. P. Service Tribunal Act, 1974 where under the Tribunal had no jurisdiction to issue directions in the nature of a remand order to remand the case. Hence impugned part of the order is liable to be set aside. We find that Service Tribunal had accepted the appeal of the petitioner, on a technical ground, namely, a violation of the inquiry proceedings and bad expressed no opinion on the merits of the case so far as the correctness or other wises of the charges leveled against him were concerned. Consequently it could, while setting aside the order of the Tribunal indicate that the department was not precluded from taking action against the petitioner by following the correct procedure. The order of the Tribunal does not, therefore, amount to an order of remand as has been canvassed by the learned counsel for the petitioner. As for the other ground that the petitioner stood automatically restored to service on the acceptance of the appeal, therefore, the direction issued by the Tribunal that he should not be re‑instated into service and not paid salary is without jurisdiction also does not appear :o be well‑founded. There is no material before us to show that the petitioner was not under suspension during the continuance of the inquiry. If that were the position he did not on acceptance of his appeal automatically become entitled to be reinstated into service. Moreover, we find that there were specific prayers in the appeal filed before the Service Tribunal that the petitioner was entitled to all benefits full pay, increments and facilities from 18‑12‑74 onwards, and, therefore he wanted the Tribunal to pass specific orders with respect to this prayer the Tribunal was‑ not inclined to consider this part of his prayer favourably and accordingly passed the order now impugned before us. But a close reading of the order does not indicate that the Department has been debarred from re‑instating the petitioner and paying, the arrears of salary because this aspect has been left to be considered by the Department. We have no doubt that it shall proceed to do this in accordance with the relevant rules and pass appropriate orders. With this clarification this petition stands dismissed. Petition dismissed.