1985 PLP 1038 (PLC)

Hafiz Abdul Latif, ex‑Naib‑Tehsildar Cholistan Development Autho rity. Bahawalpur has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against the order, dated 3rd March, 1985 passed by respondent No. 1 and dated 26th August, 1984 passed by respondent No. 2, whereby the appellant has been dismissed from service.

2. By virtue of this appeal he has prayed that the impugned orders be set aside and he be reinstated in service with all consequential benefits.

3. Brief facts of the case are as under :‑ Some serious allegations of corruption were levelled against the appellant during his posting as Naib‑Tehsildar, Cholistan Development Authority, Bahawalpur. Consequent of an enquiry a case was registered against him. The case was put up before the Summary Military Court No. 16, Bahawalpur. After hearing the case Summary Military Court held the appellant guilty, convicted and sentenced him under, sections 471, P. P. C. and 5(2)47, P. C. A. to undergo six months' R. I. and a fine of Rs. one lac and in default further imprisonment for six months. However, subsequently the Martial Law Administrator, Sector 4 remitted Rs. 75,000 out of one lac imposed as fine by the Summary Military Court. The appellant underwent imprisonment and paid Rs. 25,000 as fine. On his conviction the Commissioner, Bahawalpur Division dismissed him from service, w.e.f. 21st May, 1983. He preferred an appeal before the Member (Revenue), Board of Revenue, Punjab, Lahore, who accepted the appeal, set aside the order of dismissal and remanded the case to the Commissioner, Bahawalpur Division with the observation that he should pass a fresh order after observing the procedure laid down under rule 9 of the Punjab Civil Servants (E & D) Rules, 1975, as amended. In view of the said Judgment of Member (Revenue) Board of Revenue, Punjab, Lahore, Mr. Ali Zulqarnain Commissioner, Bahawalpur Division issued the appellant a show‑cause notice, dated 15th August, 1984 and summoned him for 26th August, 1984 to show cause why he should not be dismissed from service. In response to the show‑cause notice the appellant appeared in person and was beard at length. However, Commissioner, Bahawalpur Division, Bahawalpur vide his order, dated 26th August, 1984 dismissed the appellant on the ground that he was convicted by the Summary Military Court, therefore, he could not be retained in service. Aggrieved by this order, the appellant filed an appeal before the Member (Revenue), Board of Revenue, Punjab, Lahore who vide his order, dated 3rd March, 1985 up held the order of the learned Commissioner with the modification that the appellant would be treated to have been dismissed from service with effect from 26th August, 1984, the date of announcement of the impugned order instead of w.e.f. 21st May, 1983. For the period from 21st May, 1983 to 25th August, 1984, it was observed by the learned Member (Revenue), Board of Revenue that the appellant would be treated to have remained under suspension. Hence this appeal.

4. I have heard the learned counsel for the appellant at this prelimi nary stage of hearing at length. The main grievance of the appellant in this case is that he has been condemned without being heard and no oppor tunity was provided to him when Commissioner, Bahawalpur Division called upon him to defend himself.

5. I have perused the impugned order of learned Commissioner, Bahawalpur Division, dated 26th August, 1984 and find that the grievance so made before this Tribunal is absolutely unfounded. The contents of the judgment reveals that the appellant was beard at length and his two contentions i.e. provision of rule 9 of Punjab Civil Servants (E & D) Rules, 1975 was amended in April, 1982, while proceedings against him were initiated on 30th November, 1981 on which date the amended Rule was not in existence, and that the Summary Military Court could not be treated as Court of Law. The learned Commissioner revealed both these contentions as under : ‑ "In fact what the accused refers the order of his suspension which was passed in the year, 1981. Moreover, during the hearing of appeal before the learned Member (Revenue), Board of Revenue, the counsel for the accused officer had contended that it was necessary to issue show‑cause notice to the appellant under rule 9 of Punjab Civil Servants (E & D) Rules, 1975 as amended by Notification O.S.O.R.I (S&GAD) 1‑55/81 dated the Ist April, 1982 by the Government of the Punjab, Services, General Administration and Information Department. The appeal was accepted on this very ground. It was not proper for the accused officer to back out from the earlier stand and say that rule 9 ibid is not applicable to his case. As he has been heard today when rule 9 as amended is in force, it is very much applicable in his case. It is a matter of common knowledge that the country is being run under Provisional Constitutional Order, 1981. All Courts are functioning under P. C. O.. 1981. Hence the Summary Military Courts stood duly constituted under the Law of Land and conviction awarded by it cannot be termed as unlawful or without jurisdiction. For the above foregoing reasons, I am of the opinion that in view of the serious nature of allegations against the accused officer culminating in his conviction by the Summary Military Court, his retention in service is not desirable. I, therefore, dismiss him from service, w.e.f. 21st May, 1983 i.e. the date of his conviction by the Summary Military Court." While going through the judgment of the learned Member (Revenue) Board of Revenue, Punjab, Lahore, the learned Member has reiterated the same point in para. 4 of his judgment as under :‑ "In the earlier appeal filed by the appellant, the counsel for the appellant had contended before me that the appellant on conviction could not be dismissed by the Commissioner, Bahawalpur Division, without issuing the show‑cause notice to him under rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, as amended by Notification No. S.O.R.I. (S&GAD)1‑55/81, dated the Ist April, 1982. The appeal was accepted on this very ground and the case was remanded to the Commissioner for fresh order after observing the laid down procedure. It need be mentioned that rule 9 stood amended at the time of hearing of the earlier appeal of the appellant. There is therefore, no force in contentions of the counsel that the amended rule 9 cannot take retrospective effect in the case of the appellant."

6. In view of the above I agree with the views of the learned Commissioner as well as the learned Member (Revenue) Board of Revenue, Punjab, Lahore given on the issues so argued before them on behalf of the appellant and therefore, the appeal is dismissed in limine as being without any merit. A. E. Appeal dismissed.