2015 PLP (C (PLC(CS))

AMIR HANI MUSLIM, J.

This appeal by leave of the Court is directed against the judgment dated 5-4-2011, passed by the learned Islamabad High Court, Islamabad, whereby the Writ Petition filed by the appellant was dismissed.

2. The material facts for the disposal of the present Appeal are that on 7-7-2001, the appellant was issued a Show Cause Notice under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as the Ordinance, 2000) on the charge of manoeuvering his promotion from BS-18 to M-III, through political influence and absence from duty from 18-6-1998 to 7-7-2001. By order dated 19-8-2002, the appellant was dismissed from service on the charge of un-authorized absence from duty. On 4-9-2002, the appellant preferred Departmental Appeal before the Competent Authority (The President/Chief Executive), which remained undecided. Therefore, the appellant filed Service Appeal before the Federal Service Tribunal (hereinafter referred to as the Tribunal), which was allowed vide judgment dated 2-3-2003. The Printing Corporation of Pakistan filed Petition for Leave to Appeal challenging the judgment of the Federal Service Tribunal before this Court. This Court by its judgment dated 15-10-2003 allowed the Appeal reversing the judgment of the Tribunal. The appellant filed Civil Review Petition No.140 of 2003 against judgment dated 15-10-2003 of this Court, which too was dismissed on 19-4-2006.

3. In the years 2003 and 2004, three References were filed by the NAB Authorities against the appellant. The appellant was convicted in two References. In Reference No.85 of 2003, the appellant was convicted and sentenced to 7 years' R.I with fine of Rs.l0 Millions, vide judgment dated 8-9-2004 of the Accountability Court, Islamabad. In Reference No.84/2003 he was convicted and sentenced to 4 years' R.I. with fine of Rs.10,00,000 vide judgment dated 4-6-2005, passed by the Accountability Court No.II, Rawalpindi/Islamabad. On 14-6-2005, the appellant filed two Appeals Nos.84 of 2003 and 85 of 2003, before the Lahore High Court, Rawalpindi Bench challenging his aforesaid convictions. The appellant along with the appeals also filed bail application before the Lahore High Court for his release, which application was dismissed, vide order dated 11-10-2005, against which the appellant approached this Court. This Court enlarged the appellant on bail vide its order dated 13-3-2006 without suspending the sentence awarded to the appellant by the Accountability Court.

4. On 20-3-2008, the appellant filed Appeal/Review before the President (competent authority) of Pakistan against the Notification dated 19-8-2002 by which he was dismissed from service. The said Appeal/Review was forwarded by the Prime Minister to the President of Pakistan who turned it down on 18-7-2008 holding therein that the penalty imposed by the Authority is upheld by this Court.

5. On 28-8-2008, the then Prime Minister of Pakistan again forwarded the Appeal/Review of the appellant to the President of Pakistan in terms of section 23 of the Civil Servants Act advising him to reconsider reinstatement of the appellant on the ground of hardship. The then President vide U.O. dated 30-8-2008 approved the reinstatement of the appellant. The appellant was re-instated in service as Executive Director (Production) in the Printing Corporation of Pakistan, in terms of 'Proviso' under clause 1 of Article 48 of the Constitution of the Islamic Republic of Pakistan and section 23 of the Civil Servants Act, 1973, vide Notification dated 4-9-2008, issued by the Government of Pakistan, Cabinet Secretariat, Cabinet Division, Islamabad.

6. During the pendency of the NAB Appeals against convictions and sentences of the appellant under the NAB Ordinance before the Lahore High Court, Rawalpindi Bench, National Reconciliation Ordinance (NRO), 2007, was promulgated. The appellant filed application under section 33-F of National Reconciliation Ordinance in the pending NAB Appeals before the Islamabad High Court, Islamabad, which Applications were allowed by the learned Islamabad High Court, vide its order dated 2-2-2009 and terminated the pending proceedings against the appellant.

7. Pursuant to the judgment of this Court reported as Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 265) the NAB Appeals of the appellant which were withdrawn/terminated, stood revived and are still pending adjudication before the learned High Court. On 5-10-2010, the Cabinet Secretariat, Cabinet Division, floated a summary to the then Prime Minster of Pakistan with the recommendation that the services of the appellant be terminated w.e.f. 8-9-2004, the date of his first conviction in NAB Reference No.85 of 2003. On 12-10-2010, the then Prime Minister approved the above recommendations made in the summary. Consequently, the appellant was dismissed from service vide Notification dated 13-10-2010. The appellant filed Writ Petition before the Islamabad High Court challenging his dismissal from service which Petition was dismissed vide impugned judgment dated 5-4-2011. Hence this appeal with the leave of the Court.

8. It is contended by the learned Counsel for the appellant that the order of the learned High Court is erroneous as it has failed to take notice of the fact that during pendency of the NAB Appeal filed against his conviction by the Accountability Court dated 4-6-2005. The appellant approached this Court in Civil Petition No.2658 of 2005 and this Court, by its judgment dated 13-3-2008, suspended the sentence of the appellant while releasing him on bail.

9. The learned Counsel for the appellant next contended that findings maintaining the penalty of the appellant were appealed against by the appellant on 20-3-2008 in terms of section 23 of the Civil Servants Act, 1973 (hereinafter referred to as the Act) and the appellant was ordered to be reinstated in service. He submitted that the Notification dated 4-9-2008 reinstating the appellant was not challenged by the department. It is contended by the learned Counsel for the appellant that the Prime Minister, in law, had no authority to approve the summary floated by the Secretary, Cabinet Division, recommending dismissal of the appellant from service, inter alia, on the ground that he was a convict. He contended that the learned High Court has lost sight of the aforesaid facts as a result of which the appellant has suffered a lot and the order of the Competent Authority for the reinstatement of the appellant in service on the ground of hardship was justifiable.

10. The learned Counsel further contended that the President of Pakistan has ample powers to order reinstatement of a Civil Servant in exercise of powers vested in him under Proviso to the Article 48(1) and section 23 of the Act in hardship cases.

11. As against this, the learned DAG has submitted that the impugned judgment of the learned High Court is based on correct appreciation of law and has supported the same.

12. We have heard the learned Counsel for the appellant, the learned Law Officer and have perused the record. In the first place, we may observe that the judgment dated 13-3-2006 of this Court passed in Civil Petition No.2658 of 2005 preferred by the appellant for his release on bail, during pendency of the NAB Appeals before the Lahore High Court against his conviction and sentence by the Accountability Court, Islamabad on 4-6-2005, this Court had granted bail on the ground of his ailment, considering the fact that he had served a substantive portion of his sentence. The judgment did not mention the suspension of the sentence, as contended by the learned Counsel. The NAB Appeal of the appellant is still pending before the learned High Court after its revival pursuant to the judgment of this Court in, the case of Dr. Mobashir Hassan (supra). The NAB proceedings initiated against the appellant in the years 2003-04 through NAB References have no nexus with the issue of dismissal of the appellant. The appellant was dismissed from service through Notification dated 19-8-2002 on the charge of unauthorized absence from duty with effect from 18-6-1999 to 7-7-2001. This dismissal order was challenged by the appellant before the Competent Authority and then before the Tribunal, which had allowed the Appeal of the appellant against which the respondent in these proceedings had impugned the judgment of the Tribunal before this Court and this Court by its judgment dated 15-10-2003 had maintained the penalty of dismissal of the appellant and reversed the findings of the Tribunal. The appellant also preferred Civil Review Petition against the judgment of this Court dated 15-10-2003, which was dismissed on 19-4-2006, therefore, the judgment of this Court attained finality.

13. It appears that after the judgment of this Court attained finality, the appellant preferred second Appeal/Review invoking the provisions of section 23 of the Civil Servants Act, 1973, to the Competent Authority (The President). Initially the Appeal/Review of the appellant was turned down by the Competent Authority whereafter the Prime Minister advised the President to reconsider the Appeal/Review of the appellant. The Competent Authority (President) on advice of the Prime Minister had allowed the Appeal/Review of the appellant and ordered his reinstatement which order per se is violative of the judgment dated 15-10-2003, of this Court given under Article 212(3) whereby the penalty of dismissal from service was maintained. Such an order of the Competent Authority offends Article 190 of the Constitution which mandates that all the executive and judicial authorities shall act in aid of the Supreme Court.

14. We have examined the provisions of section 23 of the Act and have noticed that the appellant has already availed the right of Appeal against his dismissal from service, in terms of Rule 5 of the Civil Servants (Appeal) Rules, 1977, which provides 30 days to prefer Appeal against the order of the department. The appellant having exhausted this remedy of Appeal in the original proceedings could not, in law, file a second Appeal and or Review under section 23 of the Act. Such an appeal of the appellant offends the provisions of Articles 212(3) of the Constitution. The findings recorded by this Court against the appellant cannot be appealed against by resorting to section 23 of the Act before the President. The Article 190 of the Constitution confers an obligation upon the executive and the judicial authorities throughout Pakistan to act in aid of this Court. The Prime Minster or the President are under a Constitutional obligation to ensure that the judgments of this Court are implemented in its letter and spirit, whereas in the case in hand the President (Competent Authority) had nullified the findings of this Court against the appellant.

15. We may further observe that scope of section 23 is very limited. This section empowers the Competent Authority (President) to deal with the case of a Civil Servant in such a manner as may appear to him to be 'just' and 'equitable', but such powers are not unbridled. In the case in hand, the appellant could not have preferred the Appeal/ Review in terms of section 23 of the Act, as he was not a Civil Servant on 20-3-2008 when he filed such Appeal/Review. Section 23 contemplates that the Competent Authority (President) can deal with the case of a 'Civil Servant', it does not empower him to pass orders of reinstatement of the appellant who was dismissed from service, pursuant to the findings recorded by this Court which have attained finality.

16. We have also examined the provisions of Articles 48(1), 212(3), 189 and 190 of the Constitution and we are inclined to hold that if there is no ambiguity in the findings recorded by this Court, the President in defiance of such findings is neither bound to act upon the advice of the Prime Minster in terms of proviso to the Article 148(1) of the Constitution, nor the Prime Minister has the authority to advise the President to order reinstatement of the appellant on the ground of hardship, who had exhausted all the remedies under the law up to this Court on the issue of his dismissal from service. The order of reinstatement of the appellant on Appeal/Review on the ground of hardship is manifestly violative of Articles 212(3), 189 and 190 of the Constitution besides the issue of dismissal of the appellant had attained finality in consequence to the judicial proceedings could, be reversed by the executive authority either in exercise of powers under section 23 of the Act or under proviso to the Article 148(1) of the Constitution, as the executive authorities are duty bound under Article 190 of the Constitution to act in aid of the Supreme Court.

17. For the aforesaid reasons, the conclusion reached by the learned High Court is unexceptionable and does not warrant interference by this Court. This appeal is, therefore, dismissed. Parties are left to bear their own costs. MWA/M-26/SC Appeal dismissed.