1988 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN);‑‑ Appellant Mahboob Alam was serving as Audit & Accounts Assistant in the Stores Section, Controller of Military Accounts, Lahore. He was charge‑sheeted on 29‑10‑79 for embezzlement of large sums of Government money. During the pendency of departmental proceedings, he was prosecuted for embezzlement of Government money and was tried 'and convicted by the Special Military Court No.32, Lahore, for the offence punishable under section 5 of the Prevention of Corruption Act, 1947 and was sentenced to suffer rigorous imprisonment for three years and also fine of Rs.5,000 or suffer rigorous imprisonment for six months in default, by judgment dated 30‑10‑1980. Consequent to his conviction, as aforesaid, the Military Accountant‑General, by his order dated 22‑8‑1981 thus dismissed the appellant from service with effect from 8‑3‑1981 under the provisions of "Rule 8(a) of the Government Servants (E&D) Rules, 1973". Departmental appeal preferred by the appellant was dismissed as per communication to him under letter dated 24‑1‑1983. He has called in question, by way of this appeal filed on 24‑7‑1983, the action taken against him.

2. The learned counsel for the appellant has contended that the departmental proceedings were initiated against the appellant in the first instance and they were dropped later and the impugned order of dismissal of the appellant from service was passed without giving him a show‑cause notice on the basis of conviction awarded by a Military Court. He has made reference to a case cited as 1986 P L C (CS)

875. He has further contended that conviction by a Military Court did not amount to conviction by a Court of law as to have formed basis for passing the order of dismissal of the appellant from service. In this respect, he has placed reliance on a case cited as Azam Khalil v. Secretary to Government, Punjab, S.G.A. and Information Department reported in 1982 P L C (CS)

140. He has also contended that the penalty could not be imposed retrospectively and the order is void. He has placed reliance on a case reported as 1985 S C M R 1178.

3. On the other hand, the learned counsel for the respondents has urged that the conviction of the appellant by the Military Court is deemed to be a conviction by a competent Court of law in the light of the decision of the Supreme Court in the case of Agha Aqeel Nasir v. Inspector General of Police reported in 1984 S C M R

788. He has next urged that Rule 8 of the Government Servants (E&D) Rules, 1973 does not envisage service of a show‑cause notice before making an order thereunder. He has also advanced the plea that the appeal is time‑barred.

4. The main contention of the learned counsel for the appellant is that the order of dismissal of the appellant from service could not be made in a summary manner on the basis of his conviction by a Military Court and without giving him a show cause notice and during the pendency of the departmental proceedings. The impugned order was passed under the provisions of clause (a) of Rule 8 of the Government Servants (E&D) Rules, 1973, which reads as under:‑ "Nothing in rule 5 shall apply to a case‑ (a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which had led to a sentence of fine or of imprisonment; or (b) xx xx xx xx" Rule 5 referred to in Rule 8 (partly reproduced above) lays down procedure for taking proceedings against a Government servant under the E&D Rules, envisaging issuance of show‑cause notice etc. It is specifically mentioned in Rule 8, referred to above, that the provisions of Rule 5 shall not apply in a case where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence or fine or imprisonment awarded on him. In the instant case, the appellant was tried and convicted for an, offence of corruption and he was awarded sentence of imprisonment and fine. His case, therefore, did fall within the sphere of Rule 8 of the E&D Rules. Accordingly, no show‑cause notice was required to be given to him before imposing on him penalty consequent to his conviction in a criminal offence. There does not seem any bar under the E&D Rules to the taking of action under Rule 8 during the pendency of the proceedings initiated under Rule

5. Rule‑8 provides that action thereunder can be taken if the conduct of the accused has led to a sentence of fine or of imprisonment, and it does not specify the forum for passing such sentence. Of course, sentence awarded by Military Court was not considered to be a sentence by a Court of law by the Punjab Service Tribunal in the case of Azam Khalil v. Secy. Govt. Pb. S.G.A.& Information (1982 P L C (CS) 140; but that view does not hold ground in view of the provisions of Article 270‑A of the Constitution, whereunder all the laws made during the Martial law period between the 5th day of July, 1977 and 30th day of December, 1985 and all orders made, proceedings taken and acts done thereunder by any authority or by any person during that period have been validated under the Constitution. In a case of identical nature, viz. Muhammad Asghar v. Government of Sind (PLD 1977 SC 212), termination of service of a civil servant by the Provincial Government consequent to his conviction ordered by Military Court was upheld by the Supreme Court. That case was referred to by the Supreme Court in a subsequent case of Agha Aqeel Nasir v. Inspector General of Police, Quetta (1984 S C M R 788). Thus, the conviction of the appellant by a Summary Military Court could be the basis for the termination of the service of the appellant under Rule 8 of the E&D Rules, 1973.

5. The second contention of the learned counsel for the appellant is that the punishment could not be awarded with retrospective effect. This question stands settled by the decision of the Supreme Court reported as 1985 S C M R 1178, wherein it was held that the order of punishment could not be made with retrospective effect and it could be given effect to only from the date it has been made; but such order was not held to be void on that ground.

6. For the reasons recorded above, we do not find any force in the contentions raised by the learned counsel for the appellant and there is no flaw in the impugned order as to strike it down.

7. As regards the question of limitation agitated by the learned counsel for the respondents, the relevant events are that the impugned order of dismissal was passed on 22‑8‑1981. The appellant was in jail undergoing sentence awarded on him by the Military Court. There is no evidence on record that the order of dismissal was served on him. It is stated in the memo of appeal that on release from jail, the appellant immediately filed departmental appeal on 10‑1‑1983. This averment has not been controverted. The appellant was informed by letter dated 21‑3‑1983 that the appeal lay to the Additional Secretary, Military Finance, and he preferred it accordingly on 19‑4‑1983 and he was informed by letter dated 25‑6‑1983 that his appeal could not be entertained and he, therefore, filed this appeal on 24‑7‑1983. It appears that the intervening period was condonable in view of the events mentioned above.

8. Consequent to the conclusions arrived at above on merits, we dismiss the appeal with no order as to costs. A.A./391/Sr.F Appeal dismissed.