MUHAMMAD TUFAIL SHAH Versus

ORDER

1. M. SALEEM CHUDHRY (CHAIRMAN).‑ In this appeal the appellant, a Patwari, was entrapped in a raid conducted by the Anti‑Corruption Depart ment in the year 1973 as a result of which he was convicted by the Special Judge, Anti‑Corruption, Lahore on the allegation that he has accepted a sum of Rs. 500 as illegal gratification as a motive or reward for entering certain mutation. He was convicted and sentenced to undergo one year's im prisonment. He challenged his conviction in appeal before the Lahore High Court which has since been admitted and the sentence has been stayed. But in the meantime the Collector, Sheikhupura vide his order, dated 13‑6‑1964 dismissed the appellant from service. The appeal filed before the Commis sioner Lahore Division, Lahore also failed on the 5th of August, 1974 ; Hence this appeal.

2. The appellant relied upon the instructions contained in Letter No. SO‑R‑I (S & GAD)‑l‑105/69, dated 9‑6‑1973 and contended that the competent Authority should have waited for the result of the appeal before the High Court before passing the dismissal order. According to the appellant he has a very good case and he was likely to succeed before the High Court. He also produced before us a copy of the decision, dated 7‑7‑1971 in Appeal No. 171 in case of Muhammad Shafi son of H. Karim Bakhsh in which the appeal was allowed by the Additional Commissioner, Lahore and the dismissal order was quashed relying upon the instructions contained in the aforesaid letter. Reliance was also placed upon the decision of the Tribunal reported as 1975 P L C (C. S. T.) 93 in which the observations were also to the similar effect, although the appeal was dismissed under the circumstances of the case. With these submissions the appellant contended that the Appeal may be allowed and the appellant may be re‑instated.

3. The learned ('government Pleader on the other hand pressed for main taining the order on the ground that the conviction of the appellant has not so far been set aside.

4. After hearing both the parties, we find that there is nothing in the judgment of the Commissioner, Lahore Division to show that the issue raised before us has been either raised before him or the Departmental Appellate Authority had the occasion to consider the same. The learned counsel for the appellant however stated that the issue was raised but no finding was given. In our opinion initially it did require a decision one way or the other by the Departmental Authorities, more particularly when an appeal had been accepted by the Additional Commissioner on the same issue.

5. In the circumstances we accept this appeal and remand this case to the Commissioner with the direction that he should decide the appeal afresh after hearing the appellant and taking into consideration the above conten tions of the appellant. Consequently the same is remanded to the Commis sioner with the directions above. There will be no order as to the costs.

6. Appeal dismissed.