1988 PLP (C (PLC(CS))

3. We have perused the record. The plain reading of order, dated 2‑3‑1985, whereby the appellant was dismissed, shows that it was not passed as a result of any departmental proceedings; conducted against the appellant. It does not disclose that any show‑cause notice was issued to the appellant, or any enquiry was ever conducted into the guilt or innocence of the appellant. On the other hand, the order dated 2‑3‑1985 shows that the appellant was suspended vide an earlier order, passed on 4‑10‑1980. The appellant had been convicted by Anti -Corruption Judge, Muzaffarabad, vide judgment dated 28‑2‑1985, therefore, in view of the proof of the appellant's guilt, before the Court, he was found unfit, for retention in service, thus, he was accordingly dismissed on 2‑3‑1985. The appellant submitted an application, before the Director Agriculture on 27‑3‑1985, intimating him that appeal before the High Court was lodged by the appellant, against order of conviction, therefore, pending the decision of the High Court, the previous position may be restored. The application of the appellant was rejected, by the Director Agriculture on 30‑4‑1985, mteralia on the ground that there was no order from the High Court, for staying the departmental proceedings, nor the department was summoned, therefore, the order of dismissal could not be recalled. A letter purports to have been written by Deputy Commissioner/Collector Muzaffarabad to Tehsildar, Muzaffarabad directing the latter to proceed for the recovery of Government money, from the appellant, as requested by Director Agriculture, vide his No. 4359‑64/86, dated 31‑5‑1986. Vide copy of the judgment of High Court, dated 8‑2‑1987, it has been proved that the appellant was acquitted by the High Court. The relevant portion of the judgment of the High Court is reproduced below:‑‑ "As he wanted to inform the police, the Drawing and Disbursing Officer told that the amount would be deposited by him, within a day or two, but in the meantime, he himself informed the police. This suggests that the Drawing and Disbursing Officer was responsible for the whole mishap but intelligently enough, he chose to become a witness of the incident by implicating the appellant. The learned Special Judge Anti‑Corruption has rightly pointed out that all officers who were assigned the duties of certifying the correctness of the pay bills, the receipt of the amount and its disbursement, were equally responsible. The senior officers manoeuvred to shift the liability on junior officers. It is also available on record that some amount was deposited in the Government treasury but it is not clear as to how much it was repaid. The testimony of partisan witnesses being tainted one, cannot be accepted as a gospel truth to sustain the liability ascribed to the appellant. This is even held by the trial Court in respect of the other two accused already acquitted.

10. The facts and circumstances listed above are sufficient to reverse the impugned order as regards the conviction of the appellant. The appeal is allowed and the conviction is set aside."

4. The word "he" used in the opening of the reproduced portion of the judgment, refers to the appellant.

5. Perusal of the judgment of the High Court shows that the appellant was' exonerated from the charge of mis‑appropriation/embezzlement.

6. The acquittal is neither on technical ground, nor it resulted as benefit of doubt. According to the counsel for the appellant, after the appellant's acquittal, g by the High Court, there is no room left for believing that he was involved in the misappropriation, therefore, he should be exonerated. The learned counsel cited 1976SCMR79,PLD1977SC182,PLD1987AJ&K1,PLD1982AJ&K 124, 1983 P L C 57, 1982 P L C 770 and 1980 P L C 67.

7. In the circumstances of this case, the question of limitation as well as the competency of appeal are co‑related, therefore, these are being disposed of together. The appellant is a Government servant and subject to the law, relating to the services. He can be dismissed from service, only under the provisions of E&D Rules. There is no other law, authorising the dismissal. In the case of a conviction, the provisions of rule 9, would be applicable, which arc reproduced below:‑‑ "

9. Certain nose not to apply in certain cases.‑‑(1) Where a civil servant is convicted of an offence involving moral turpitude which has led to a sentence of fine or imprisonment, he may, after being given a show cause notice be dismissed, removed from service or reduced in rank without following the procedure laid down in Rules 5, 6, 7, and 8." (2). Where the authority is satisfied, that for reasons to be recorded in writing, it is not reasonably practicable to give the accused Civil Servant an opportunity of showing cause it may impose any of the penalties under these rules without following the procedure laid down in Rules 5, 6,7and

8. The perusal of Rule 9 shows that show‑cause notice is to be issued, even in the case of conviction of a Civil Servant, by the Court, before he is dismissed or removed from the service Rule 9, excludes the compliance of Rules 5, 6, 7 and 8, except the issuance of show‑cause notice. Sub‑rule (2) authorises the taking of action, without issuance of show‑cause notice, where it is not practicable to afford an opportunity of show cause. In the instant case, no reason has been shown in the impugned order as envisaged in Rule 9(2), to indicate that it was not practicable to issue show‑cause notice. The violation of the mandatory provision of sub‑rules (1) and (2) of Rule 9 makes the impugned order, illegal and void abinitio. The Civil servants are not left to the mercy of superior officers Any penalty, authorised by law, can be imposed but with due regard to the provisions of Rues. An arbitrary action taken, by the departmental authority has no legal footing. We have held in a number of cases, following the decisions of Supreme Court of Azad Jammu and Kashmir, that in the case of void orders or the orders, suffering jurisdictional defect, the question of limitation loses all its value. ‑The following decisions support our view, on this point:‑‑ 1980 P L C 789, P L D 1964 S C 97, 1987 P L C

313. The relevant portion from the last authority is reproduced below:‑‑ 1987 P L C page 320. "Whenever, any action is sought to be taken, against any Government official, it is a legal right of the official that he should be heard in defence and in the case of non‑fulfilment of this requirement, it renders the entire proceedings against the official as null and void. We may quote here that in P L D 1964 S C 97 it was held by Supreme Court of Pakistan that a Court was not competent to hear a case on a date which was not fixed for hearing and any degree or order, passed on this basis of proceedings held on such a date was a nullity in the eyes of law." 1987 P L C page 321. "

11. In view of the legal position, illustrated by the authorities of Supreme Court of Azad Jammu and Kashmir and others from Pakistan jurisdiction, described here in before, we are constrained to hold that the order of Superintendent of Police, dated 12‑6‑1979 was nullity in the eyes of law and that no limitation runs in respect of remedy to be sought against such an order, which is void ab initio." The second question, concerns the competence of appeal. In absence I a recourse to the departmental proceedings, as required by the rules, the impugned order is void ab initio. In the light of the decision of Supreme Court of Azad Jammu and Kashmir, reported in, 1980 C L C 789, it is to be ignored, wherever pressed into service. No departmental appeal is required to be filed, against an order, which is not passed under any law. Therefore, it will be deemed that the appeal against such an order, for putting an end to its operation, is competent, m the circumstances of this case. Another factor is also important that the dismissal of the appellant was the result of the judgment of Special Judge, Anti‑Corruption, Muzaffarabad dated 28‑2‑1985. This judgment has been set aside by the High Court and the appellant stands acquitted. As earlier observed, there had been no departmental proceedings, against the appellant, before taking the action, complained of. In this respect, 1984 P L C 1354 can be perused the relevant portion of the judgment, at pages 1355 and 1356 is reproduced below:‑‑ "

6. I have given my anxious thought to the arguments of the parties and have consulted the record of this case very carefully. This is a similar case involving the similar facts and point of law as decided earlier by this Tribunal in case of Aziz‑ur‑Rehman Khan v. D.I.‑G. Police, Lahore and others Appeal No. 729/763 of 1980 announced on 8th July, 1981. The operative portion of the judgment is reproduced below:‑‑ In view of the fact that the basis on which the appellant was dismissed from service has fallen to the ground by the detailed and well‑reasoned judgment of the Court of competent jurisdiction, which still holds the field, and m the absence of a regular enquiry, which was a must in this case, the impugned order cannot be sustained. The result is that we accept the appeal and set aside the impugned order as being of no legal effect and direct that the appellant be reinstated in service from the date of his suspension in the office he was holding at the relevant time, as if he had not been removed from the service at all, with all the back benefits:" The action of the Director of Agriculture taken, on the basis of decision of Anti‑Corruption Judge, Muzaffarabad, falls flat to the ground, after the acquittal of appellant, by the High Court. There is no other reason, to keep him out of service. Ordinarily, it would have been desirable to remand the case, for departmental proceedings but on the face of the judgment of High Court, the matter has become complicated, as to whether it is proper for us to make such an order at this stage. However, our judgment will not bar a departmental proceeding, against the appellant, if such action is permissible, after the verdict of the High Court, in its judgment, dated 8‑2‑1987. The action of dismissal of appellant, by the Director Agriculture, without a show‑cause notice, within two days of the decision of Anti‑Corruption Judge, is too hasty and ' seems to be actuated by other elements, than the interest of administration. It is expected that such haste resulting in violation of law, will be avoided in future, so that the Government is not involved in unnecessary litigation and burdened with expenditure. The letter of the Deputy Commissioner/Collector directing the' recovery of the Government money, from the appellant is a consequence of the order of Director Agriculture. Since the order of Director Agriculture is not lawful, all actions taken against the appellant, in consequences of the order or letter of the Director shall be stopped, forthwith and no proceeding for recovery on the basis of any earlier order shall be taken up, against the appellant, by any authority. As upshot of the above discussion, the orders of Director Agriculture, under appeal are set aside. The appellant is reinstated to service, with all back benefits and it shall be deemed that he has been in service, throughout. In view of the circumstances of this case, the appellant shall be entitled to the cost of this appeal. A.A./65/Sr.A Appeal accepted.