1990 PLP 1683 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Service Tribunal had not by its impugned judgment departed from its earlier view taken in an identical case in Daud Ahmad Malik and 4 others v. Governor of the Punjab through Secretary to Government of Punjab, Labour Department and another 1984 PLC (C.S.) 50.

2. The appellant was appointed on ad hoc basis as Assistant Director, Labour Welfare, on 14th of November, 1974. He was regularized by the Governor by a Notification dated 11th October, 1975 w.e.f. 29th September, 1975. In 1977, Martial Law Instruction No. 21 was issued whereby appointments in the nature of that of the appellant were declared to be ad hoc appointments notwithstanding their earlier regularization and were ordered to be reviewed. The case of the appellant, as well as of Daud Ahmed Malik and others similarly affected were all reviewed and in accordance with the recommendation made by the Public Service Commission under Martial Law Instruction No. 21, the Governor regularized the appointment of the appellant from 3‑9‑1977.

3. By Punjab Civil Servants (Amendment) Ordinance IX of 1978, section 11‑A, was introduced in the Punjab Civil Servants Act, 1974, which read as hereunder:‑‑ "11‑A, Certain persons to be liable to removal or reversion.‑ Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from the first day of January. 1972 to the fifth day of July, 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by the Governor of the Punjab or a person authorised by him in this behalf on such date as the Governor of the Punjab or, as the case may be, the person so authorised may, in the public interest, direct"

4. The appointment of the appellant was also sought to be reviewed and that of his other colleagues and a removal Order was passed by the Governor.

5. Section 11‑A of the Punjab Civil Servants Act being penal in nature, has to be given a strict interpretation and though it starts with a non‑abstante clause the fact that the appointment of the appellant had been reviewed for the same reasons and at the apex by the same Authority and his re‑appointment was subsequent to the prescribed period, distinguishes the case from all others not so' dealt with. There is nothing in the language of the law to necessarily extend its effect to such cases which have been reviewed and in which orders of regularization have been passed taking effect after the specified date. Therefore, in order to maintain the consistency and also to give a fair and liberal interpretation to the penal law, the regularization of the appellant by subsequent order had to be protected as Service Tribunal protected such orders passed in respect of Daud Ahmed Malik and others. Hence, the appeal is allowed, the judgment of the Service Tribunal is set aside and the appeal filed by the appellant before the Service Tribunal is allowed and the order of removal impugned before the Service Tribunal is set aside. H.B.T./S‑576/S Appeal allowed.