1990 PLP 5 (SCMR)

Nemo for Respondents. Date of hearing: 17th June, 1989. SHAFIUR RAHMAN, J.‑‑The petitioner, a civil servant, seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Service Tribunal dated 14‑9‑1988.

2. The petitioner was charge‑sheeted and an Order of his dismissal from service was passed on 29‑11‑1981. He appealed to the Service Tribunal which set aside the dismissal order by observing as hereunder:‑ "It has been noticed that the show‑cause notice was not sent on the proper address. The appellant was, therefore, not given an opportunity to defend himself. He was also not given a personal hearing by the authorised officer as required under the rules. The procedure laid down in the efficiency and discipline rules was therefore not followed. In these circumstances the appeal is partly accepted and it is directed that the appellant should be reinstated in service. Back benefits will, however, not be allowed to him. As the appeal has been partly accepted on technical grounds the department will be at liberty to hold a fresh enquiry against the appellant." The petitioner feels aggrieved by that part of the order which denies him the back benefits.

3. Shah Abdur Rashid, Advocate, the learned counsel for the petitioner has taken us through the history of the law on the subject of remuneration with a view to establish that the Service Tribunal could not have denied the remuneration in its entirety while reinstating the petitioner. It could do so only partially and that too for good reason.

4. After hearing the learned counsel for the petitioner we find that the rules to which reference has been made relate to a final order when a civil servant is reinstated in service at the conclusion of the enquiry, where his misconduct if any, the extent and nature of it is finally determined. In the case before us, the dismissal order has been set aside but the charges levelled against the petitioner have not been quashed. Therefore, while reinstating, the Tribunal could have deferred regulating the remuneration to final disposal of the matter. It is for the competent authority when it finally deals with the charges either by dropping them or by otherwise concluding them that a situation would arise where the rules will get attracted. It will then be for the competent authority to decide whether and to what extent the rule with regard to remuneration has the application.

5. The learned counsel brought to our notice the subsequent order passed by the authority whereby it decided not to proceed with the charges and to end the matter. That order is subsequent to the order of the Tribunal, and independently creates an entitlement for the plaintiff to seek redress against that order like any other departmental order. This petition cannot take into consideration subsequent orders passed by the competent authority for reopening the order competently passed by the Service Tribunal. Section 9 of the Civil Servants Act justifies and the existence of charges protects the order of the Service Tribunal denying the remuneration for the interregnum when there was no legal decision of the competent authority available on the charges. No question of law of public importance arises in the case and leave to appeal is refused: M.A.K./M‑996/S Leave refused.