2005 PLP (C (PLC(CS))

It may be pointed out that the appellant was dismissed from service vide impugned order, dated 9‑10‑2002, only on the ground that, he has been convicted by the Accountability Court. For reference the impugned order is reproduced herein‑below:‑‑ "Government of Balochistan Revenue Department (Admn: Branch) Dated Quetta, the 9th October, 2002. No. 72 A

15. In‑exercise of powers conferred upon him in terms of section 2(a) of the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 read with Notification No.SORI‑3(2)7/S&GAD/1298‑1398, dated 25th October, 2001 and by invoking Rules 9(3) of Balochistan Civil Servants (E&D) Rules, 1992, the Competent Authority is pleased to impose a major penalty of dismissal from service upon Arbab Lal Muhammad Tehsildar Recovery Officer E&T Directorate with effect from 1‑4‑2002 in view of conviction by the Court. (2) Any emolument drawn by him beyond 1‑4‑2002 shall be recovered, as arrears of Land Revenue. Muhammad Sharif Secretary Revenue Department." A perusal of the same would show that the basis of his dismissal from service, was only the impugned order, dated 1‑4‑2002 and no departmental proceedings were initiated against him. Thus the contention of Mr. Ayaz Sawati, learned counsel has substance that, since the appellant has been honourably acquitted of the charge and that being the sole of his dismissal, as such he is entitled to be re‑instated. In view of the acquittal order, passed by the High Court, inference can be drawn that the allegations against the appellant were baseless and he has been honourably acquitted. In this regard reliance is placed on 1998 SCMR.1993 (Dr. Muhammad Aslam v. Government of NWFP through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others) wherein following observations were made:‑‑ "The appellant was acquitted by the trial Judge as already pointed out above. It shall therefore, be presumed that the allegations levelled against him are baseless. In consequence, he' has not been declared guilty. In presence of above meaning of "acquittal" the appellant is held to have committed no offence because the competent criminal Court has freed/cleared him from an accusation or charge of crime. The appellant is, therefore, entitled to the grant of arrears of his pay and allowances in respect of the period he remained under suspension on the basis of registration of murder case against him. This appeal succeeds and is allowed with no orders as to costs." Mr. Inayatullah Kasi, Advocate, also opposed the appeal, on the round of limitation. When confronted with the explanation given by the appellant with regard to delay, he could not rebut the same. Besides an affidavit has also been sworn in support of the application. As pointed out herein‑above that the appellant was dismissed from service on the basis of judgment passed by the Accountability Court and after the said judgment has been set aside by the High Court, there is no other charge against the appellant and the record reveals that no departmental proceedings were initiated against him. It may be pointed out that the basic order which has been set aside by the High Court, does not hold the field and it is a settled principle of law that the subsequent orders, which have been passed on the basis of same, would also be set aside. In this behalf reliance is placed on PLD 1958 Supreme Court 104 (Yousaf Ali v. Muhammad Aslam Zia and two others and Muhammad Aslam Zia and two others v. Yousaf Ali), wherein following observations were made:‑‑ "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non existent." Whereas with regard to re‑instatement of a civil servant in service, on his acquittal, reference is made to 2001 SCMR 269 (Atta‑Ullah Sheikh v. WAPDA and others) wherein following observations were made:‑‑ "(13) It appears that the Tribunal was of the view that since after registration of the case, the appellant was placed under suspension, as such, the penalty imposed by the respondent No 3 was altogether separate than the findings in the criminal case. The record does not show that any different charge was levelied against the appellant in the departmental proceedings. On the contrary, it is evident that subject‑matter was the same and action against appellant was taken on the basis of said criminal proceedings. Where the criminal charges are not established before a Competent Court of Law and the accused is acquitter on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified. Since the appellant was acquitted by the competent Court of law, it shall be deemed that he had not been suspended and would be entitled to all pay and allowances, admissible under the rules, minus the amount which he had already drawn." Thus in view of the above discussion, since the appellant was dismissed only on the basis of conviction by the Accountability Court, which judgment does not hold the field and has been set aside by the, High Court, thus we are inclined to condone the delay and set aside the dismissal order, dated 9‑10‑2002. Consequently, appeal is accepted, impugned order of dismissal from service is set aside and he is directed to be re‑instated in service with all back benefits. No order as, to costs. H.B.T./28/QST Appeal accepted.