1985 PLP 1483 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The appellant, while serving as an Assistant in the Office of Board of Revenue, Government of Punjab, was proceeded against and tried under section 161, P.P.C. read with section 5(2) of the Prevention‑of Corruption Act, in connection with an incident that occurred on 28‑2‑1974: He was convicted by the Special Judge, Anti‑Corruption, Lahore, I, and sentenced to imprisonment till the rising of the Court as well as a fine of Rs. 3,000 or in default to undergo further six months rigorous imprisonment. He appealed against his conviction and sentence before the Lahore High Court. In the meantime, however, he was suspended from service and was served with a show cause notice for dismissal from service. By order dated 19‑4‑1977, the Board of Revenue removed him from service. The finding recorded by the Member, Board of Revenue, was in the following terms:‑

"Although he has filed an appeal against his conviction before the High Court and the outcome of this appeal is not yet known, the departmental action against him does not have to be stayed until the decision on his appeal becomes available. The High Court has not granted any stay order against the execution of the sentence passed by the Special Judge. Anti‑Corruption and there also appears to be no prima facie reason to believe the counter‑allegation made by the accused official against the complainant."

2. Subsequently on 10‑12‑1981, the appeal filed by the appellant against his conviction and sentence was allowed by the High Court and he was acquitted. The reasons for the decision given by the learned Judge in the High Court were summarized in the concluding part of the judgment as under:‑

"For all these reasons, I cannot safely accept the testimony of these witnesses to convict the appellants. May be the appellants are the true persons who set the ball rolling, duped unwary villagers and made some money out of them and are also perhaps directly or indirectly responsible to set in motion the forged letter Exh. PA/1, but the eye witnesses not having come forward at an early date to complain against their misdeeds, but only when an inquiry was initiated to trace out the culprits who had caused the forged letter Exh. PA/1 to issue and legal action was initiated against them makes it very difficult for me to accept their testimony without some reservation. In these circumstances, the appellants are entitled to the benefit of doubt."

3. Having thus obtained his acquittal, since the order of his removal was based on his conviction in the criminal trial the appellant preferred an appeal from his order of removal, but the same was dismissed by the Full Board for reasons which may be re‑produced from the order passed by the Board as under:‑ "It is thus clear that the appellant has not been acquitted honourably. Besides, he has got a very bad service record. A large number of adverse entries have been recorded in his character role by the officers under whom the appellant has worked. His integrity has all along been considered doubtful and there have been serious allegations of corruption against him. This being the position no interference is called for in the findings recorded by the learned Senior Member."

4. Being aggrieved the appellant went up before the Punjab Service Tribunal, which also affirmed the decision of the Full Board an‑d dismissed his appeal. Referring to the judgment of the High Court the learned Tribunal held that as the appellant has not been acquitted honourably and as he had a very bad service record, with a large number of adverse entries in the character‑role of the appellant, there was no ground to interfere in the order of his removal. Reliance was also made on rule 7.3(a) of Civil Service Rules, Volume 1, Part I, applicable to the Punjab Government Employees and it was observed:‑ "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 Tribunal concerned that the allegations were false and merely not proved."

5. Leave was granted by this Court to examine the contention that under rule 9(a) of the Efficiency and Discipline Rules, which seemed to have been invoked in order to lay foundation for the removal order passed against the appellant, was not attracted in the present case, in view of the fact that the conviction and sentence awarded to the appellant were set aside in appeal by the High Court and rule 7.3(a) of the Civil Service Rules Punjab, Volume I, Part I was wholly irrelevant in the circumstances of this case.

6. Learned counsel appearing for the appellant has reiterated these contentions in support of this appeal. On the other hand, the learned counsel for the respondent tried to support the order of the Tribunal in appeal.

7. Rules 7.3(a) of the Civil Service Rules which has been relied upon by the Tribunal is in the following terms:‑ "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 (b) 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. Note. 1 ... ... ... ... ... . .. Note. 2 ... ... ... ... ... ... A plain reading of this rule makes it abundantly clear that the rule deals with the question of the pay and allowances to which a civil servant would be entitled in case his suspension is subsequently held to have been unjustifiable or not wholly justifiable, or when a civil servant is re‑instated after dismissal by the revising or appellate authority. It is with reference to the extent of the pay 'and allowances to which a civil servant would be entitled in such situation with which the rule clearly deals. It is not a rule dealing with the substantive ground on which a civil servant would be liable to be removed from service. Apparently, therefore, this rule could not be lifted out of context for the purpose of making it the basis of the penalty inflicted on a civil servant. The Tribunal was not dealing with the question of determining the pay and allowances to which the appellant was entitled but was considering the correctness of the order of removal from service.

8. It is common ground that no disciplinary proceedings were held against the appellant. The proceedings culminating in the order of removal were stated with the show‑cause notice dated 4‑1‑1977, which reads as under:‑ "No. 7798‑76/2‑Adm/Part II, dated the 4th January, 1977. Whereas you Mr. Muhammad Sardar Khan, Officiating Assistant, were prosecuted under section 161, P.P.C. and under section 5(2) of the P.C.A. in the Court of Special Judge, Anti Corruption, Lahore, I, for charges set forth in the charge sheet bearing No. 6511‑74/848 Adm/Part II, dated 9‑3‑1974. And whereas as a result of the prosecution you have been held guilty and convicted under section 161, P.P.C. and 5(2) of the Prevention of Corruption Act II of 1947, and have been sentenced to pay fine of Rs. 3,000 (three thousand) and imprisonment till rising of the Court, in default of which payment you were to suffer R.I. for six months. Now, therefore, you are required to show cause in writing as to why you should not be dismissed from service. You should submit your written explanation within 14 days of the receipt of this notice, failing which it shall be presumed that you have no explanation to offer. You should also state in writing within the said period of 14 days as to whether you wish to be heard in person. (Sd.). (Zahur Azar), Member (Establishment), Board of Revenue, Punjab. Mr. Muhammad Sardar Khan, Officiating Assistant, Board of Revenue, Punjab." The order for removal of the appellant from service was then passed on 19‑4‑1977, by the Senior Member, Board of Revenue, Punjab, mainly, on the basis of the judgment passed by the Special Judge Anti Corruption. The powers of the relevant authority to inflict penalty on accused civil servant in disciplinary proceedings and the procedure therefore are provided for in the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Under rule.5 the competent authority could initiate proceedings against a civil servant if in his opinion sufficient ground exists for doing so. The authorised officer is then required to proceed against such civil servant. It is then within the discretion of the authorised officer to decide whether the case calls for a formal inquiry to be conducted or to proceed against him without such a formal inquiry by adopting the procedure laid down under rule 6(3). The procedure for an Inquiry Officer or inquiry committee is laid down in rule

7. Rule 9 then authorises the competent authority to dismiss or remove an accused civil servant, without following the procedure laid down in the rules, in case the ground for his removal is the conduct" which has led to a sentence of fine or of imprisonment." Admittedly in the present case the order of removal, as the show‑cause notice clearly reveals, proceeds upon the basis of rule 9 of the Efficiency and Discipline Rules. However, it does not require any elaborate argument to show that in case the sentence is set aside and the accused officer is acquitted, the very basis on which such order of removal from service stands, would disappear. The result of such an event would be that the order of removal itself will render ineffective and liable to set aside. Such being the legal consequence a void order of removal could not have been propped up by any additional ground, as done by the learned Service Tribunal, for the simple reason that such additional grounds found in support of the removal order would violate the rule of natural justice, besides being violative of the mandatory requirements of the Efficiency and Discipline Rules. We are, therefore, of the view that the concept of honourable acquittal was unjustifiably imported by the learned Tribunal in determining the question of the validity of the appellant's removal from service. The reliance on this Courts' judgment in Government of West Pakistan v. (Mian) Muhammad Hayat, P L D, 1976 S C 202, in so far as it related only to the question of pay during period of suspension, was inapt and irrelevant. For the foregoing reasons, this appeal is allowed with costs and the impugned order of appellant removal from service dated 19‑4‑1977, shall be set aside, with the result that the appellant shall be re‑instated in service with effect from the date the said order took effect. M. I. Appeal allowed.