1988 PLC(CS) 511
IHSANUL HAQ CHAUDHRY (CHAIRMAN) .‑‑The relevant facts for the decision of the present appeal are that the appellant was serving as Junior Clerk‑cum‑Revenue Ahlmad to Assistant Commissioner, Ferozewala when a case under sections 420/468/471, P.P.C. and 5(2)47 of Prevention of Corruption Act was registered against him with the Anti‑Corruption Establishment, Sheikhupura. The case was tried by the Special Military Court No.46, Lahore. The appellant was found guilty under section 5(2)47 of Prevention of Corruption Act and was sentenced to 5 years R.I. vide judgment dated 9‑5‑1983. The appellant submitted mercy petition to Martial Law Administrator Zone 'A', Lahore, who suspended the‑sentence vide order dated 25‑5‑1983. The Respondent No.l, on the other hand, decided to initiate disciplinary proceedings against the appellant under Rule 9 of the Punjab Civil Servants (E&D) Rules, 1975, and accordingly served him show‑cause notice dated 7‑8‑1983. The accusation part of the show‑cause notice reads as under:‑
"While working as Revenue Ahlmad to Assistant Commissioner Ferozewala, a case under sections 420, 468, 471, P.P.C., and 5(2) 47, PCA was regisrtered against you with the Anti Corruption Establishment Sheikhupura for fraudulent allotment of State land.
The case was tried by the Special Military Court No.46, Lahore, who awarded you sentence for 5 years.
That you filed an appeal against the said order of Special Military Court in the C.M.L.A. but he suspended the order of Special Military Court and you were bailed out. The case has not so far been finally disposed of.
And whereas the undersigned has decided that it is not necessary to have an inquiry conducted in proof thereof and whereas it is proposed to proceed against you under Rule 9 of the Punjab Civil Servants (E&D) Rules, 1975.
Now, therefore, you are hereby called upon to show cause in writing within 10 days of the receipt of this communication as to why you should not be dismissed from service."
The appellant submitted reply to the show‑cause notice. The Respondent No.l, after due consideration of the matter and going through the records, decided to dismiss him from service. The order is dated 19‑8‑1985. The appellant assailed this order through departmental appeal before Respondent No.2, who did not find any merit in the appeal and dismissed the same vide order dated 17‑4‑1986.
2. The appellant, still not giving up the hope, decided to invoke the jurisdiction of the Tribunal under section 4 of the Punjab Service Tribunals Act, 1974. The appeal was admitted to regular hearing on 29‑9‑1986; and notices issued to the respondents. The respondents have entered appearance, filed written objections and contested the appeal.
3. We have heard the learned counsel for the appellant and learned District Attorney for respondents and gone through the paper book of this appeal as well as precedent cases referred to by the learned counsel for the appellant. The learned counsel for the appellant in support of the appeal has raised following points:‑
(i) Firstly, Rule 9 of the Punjab Civil Servants (E&D) Rules, 1975, hereinafter referred to as Rules, as it originally stood before amendment introduced on 1‑4‑1982, shall be applicable to the appellant. It is added that the Penal Laws cannot be applied with retrospective effect. The learned counsel for the appellant in support of the proposition has placed reliance on the one hand on Article‑12 of the Constitution of Islamic Republic of Pakistan, 1973 and on the other hand on cases of Saeed Ahmad v. State P L D 1964 S C 266; Adnan Afzal v. Sher Afzal P L D 1969 S C 187 and case of Maqbool Ahmad etc. v. Government of Punjab and two others 1986 P L C (CS) 97.
(ii) Secondly, that the original Rule 9 was restrictive in nature and not enabling provision, therefore, the appellant could not be proceeded under E & D Rules. The reliance in this behalf is placed on cases reported as 1982 P L C (CS) 140; Azam Khalil v. Government of Punjab etc. 1984 P L C (CS) 857; Abdul Hafeez and another v. Secretary to Government of Punjab and 1986 P L C (C.S.) 97 Maqbool Ahmad etc. v. Government of Punjab etc.
(iii) Thirdly, that since the sentence of the appellant was suspended by the competent authority, therefore, the action under Rule 9 cannot legally be initiated. The reliance is placed on the decision of this Tribunal reported as 1984 P L C (CS) 1691, Muhammad Rafiq v. Member Judicial, Board of Revenue Punjab.
(iv) Fourthly, it is argued that the Martial Law Court was not a Court, therefore, the conviction of the Martial Law Court was of no legal consequence and the same does not furnish basis for action against the appellant under E&D Rules. The reliance is placed on the cases reported as 1982 P L C (CS) 140 and 1984 P L C (C.S.) 857.
(v)Lastly, that the Respondent No. l passed the order on 19‑8‑1985, but he made the same effective from 9‑5‑1983, therefore, the order is bad in law. The reliance is placed on case reported as 1985 S C M R 1178 Noor Muhammad v. Member, Election Commission Punjab and others.
4. On the other hand learned District Attorney has argued that the Rule Making Authority has simply clarified the Rule and removed the ambiguity. It has not brought any substantial change. It is added that rule is permissive and was fully applicable to the case of the appellant. It is argued that Martial Law Courts were legally constituted Courts of the realm at the relevant time, therefore, the conviction by Martial Law Courts is a valid ground for initiating action under Rule 9. It is concluded that as suspension of sentence does not wipe off stigma, therefore, the accused can be proceeded against under rule 9.
5. Lastly, it is argued that making the order operative from back date; does not render the order void and the error can be corrected by this Tribunal.
6. Now we proceed to deal with the arguments of the learned counsel for the appellant with reference to counter‑arguments of learned District Attorney. The first and second argument that Penal Statute cannot be made applicable with retrospective effect and reliance in this behalf is placed on cases of Saeed Ahmad and Adnan Afzal. The relevant portion of the judgment of the Supreme Court of Pakistan in Adnan Afzal reads as under:‑
"The general principle with regard to the interpretation of statutes as laid down in the well‑known case of Colonial Sugar Refining Company Limited v. Irving 1905 A C 36 is that if the matter in question be a matter of procedure only', the provisions would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act,' then in accordance with the long line of authorities extending from time of Lord Coke to the present day, the legislation would not operate retrospectively, unless the Legislature had either by express enactment or by necessary intendment' given the legislation retrospective effect."
While relevant portion of the judgment in Saeed Ahmad's case reads as under:‑
"As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects of which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication."
It is, therefore, established law that penal provisions of substituted law cannot be retrospective in effect unless and until it is clearly A provided for in the Statute itself. This brings us to the pivotal point on which the fate of this appeal hinges, i.e. what is the nature and effect of amendment in Rule 9 of the E & D Rules, 1975, whether it has brought only procedural changes or it has changed the substantive rights and introduced new penalties /offences? It is, therefore, necessary to refer original Rule 9 as well as amended Rule 9. The original Rule 9 reads as under:‑
"9. Rules not to apply in certain cases‑‑Nothing in these rules 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 has led to a sentence of fine or of imprisonment; or
(b) where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
Amended Rule 9 reads as under:‑
"9‑‑Certain rules 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."
This rule was amended on 1‑4‑1982. The date is material. Its significance will be clear when we will take up the issue of application of rule.
7. Now when we compare the original with the amended rule, then following points of distinction are quite visible:‑
Original Rule: Amended Rule
(1)(a) Conviction on account of Conviction involving 'conduct' which leads to a 'moral turpitude'. sentence of fine or imprisonment was the basis.
(2) There is no provision for Show‑cause notice was show‑cause notice clearly provided.
(3) Rules were not to apply. Procedure laid down in
Rules 5 to 8 has been excluded specifically.
8. While a notice was must in view of the dictum of the Hon'ble Supreme Court of Pakistan in cases Abul Aala Moudoodi and Zakir Hussain reported as Saiyyid Abul A'la Moudoodi and others v. The Government of West Pakistan and another P L D 1964 S C 673 and the University of Dacca v. Zakir Ahmad P L D 1965 S C 90, and other cases, therefore, this part of the amendment has not made any difference. It is immaterial whether notice is served in view of the amended provision or invoking the principle of natural justice as enunciated by Hon'ble Supreme Court of Pakistan.
9. The conviction on account of 'conduct' was the basis for action in original Rule 9 while under the amended rule the word 'conduct' has been substituted by 'moral turpitude'. The word 'conduct' was definitely very wide and comprehensive than moral turpitude, which has a limited scope. This way, from whatever angle we look, it has to be recorded that original rule was harsh and more strict than the amended rule. It is clear that the amendment brought in rule 9 through amending Notification dated 1‑4‑1984, is of a procedural nature. No new offence or liability has been created rather than C previous liabilities have been circumvented by use of word 'moral turpitude' instead of 'conduct'. The amendment has in fact laid down the procedure to be followed rather than left to the whims of the authorities. If looked from this angle, the ground of attack to the order is clearly misconceived.
10. The amendment has neither created new liabilities nor offence nor provided a new or enhanced penalty. Both the liabilities and charges remained the same. The legislative history of rule goes a long way to support our conclusion.
This is not a new provision. The same existed as Proviso (a)~ to section 240 of Govt. of India Act, 1935 and was kept intact in Article 181 of the Constitution of Pakistan of 1956 as well as in Article 177 of the Constitution of Pakistan of 1962. The Constitution D of 1973, brought a change in the services set up and the terms and conditions of civil servants were to be governed by an Act, therefore, this provision was taken out from the purview of the Constitution and incorporated in the rules, which were framed under section 23 of the Punjab Civil Servants Act, 1974. If we look at the proposition from this angle then no doubt is left as to the true scope of the rules.
11. This is not all. There is exactly similar provision available in Article 311 of the Indian Constitution as well as in other Statutes. The same came up for interpretation in various judgments of different High Courts. The latest judgment in the field, which summed up the whole law in India, is reported as A I R 1975 S C 2216. The relevant portion of the same reads as under: ‑
"Finally Rule 14(i) merely seeks to incorporate the principle contained in proviso (a) to Article 311(2) of the Constitution which runs thus:
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry."
Provided that this clause shall not apply:
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
"An analysis of the provisions of Art.31,1(2) extracted above would clearly show that this constitutional guarantee contemplates three stages of departmental inquiry before an order of dismissal, removal or reduction can be passed, namely (i) that on receipt of a complaint against a delinquent employee charges should be framed against him and a departmental inquiry should be held against him in his presence: (ii) that after the report of the departmental inquiry is received, the appointing authority must come to a tentative conclusion regarding the penalty to be imposed on the delinquent employee: and (iii) that before actually imposing the penalty a final notice to the delinquent employee should be given to show cause why the penalty proposed against him be not imposed on him. Proviso (a) to Art.311(2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge."
It will be seen that the wording of original rule 9 is almost the same as that of proviso (a) reproduced above.,
The Indian Supreme Court has also explained the rationale behind for this departure from the normal law. The relevant portion reads as under:‑
"The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence. In the criminal trial charges are framed to give clear notice regarding the allegations made against the accused, secondly, the witnesses are examined and cross‑examined in his presence and by him, and thirdly, the accused is given full opportunity to produce his defence and it is only after hearing the arguments that the Court passes the final order of conviction or acquittal. In these circumstances, therefore, if after conviction by the Court a fresh departmental inquiry is net dispensed with, it will lead to unnecessary waste of tithe and expense and a fruitless duplication of the same proceedings all over again."
It is, therefore, clear that the case of the appellant fairly and squarely was covered by Rule 9 of the E & D Rules, 1975.
12. We hold that the amendment has rot changed substantial law and only removed the ambiguity, restricted the application of )&w and provided the procedure. This will, therefore, be a procedural E amendment and if looked from this angle then rule can be made applicable retrospectively. We refer to the dictum of the Hon'ble Supreme Court of Pakistan in case of Adnan Afzal which reads as under:‑
"Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. We would, therefore, hold that the Act affected also pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates had no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance."
We also refer the case of Saeed Ahmad v. State, the relevant portion of the judgment reads as under:‑
"As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined of the law, is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of events, the legal effect of which is to be determined can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication."
The result is that we do not find ourselves in a position to agree with the view taken by the Tribunal in case of Azam Khalil Abdul Hafeez and Muhammad Rafiq etc. We, therefore, respectfully disagree with the same and hold that Rule 9 was the only rule applicable in this appeal.
The other limb of argument is that original Rule 9 was a restrictive provision and not a enabling provision. The argument is misconceived. We have exhaustively dealt with this part of the argument in earlier part of this judgment and suffice ix is to say that the rule clearly provides for punishment of removal, dismissal or reduction in rank; and it was made clear that other rules appearing in chapter 3 were not applicable. The result was that the civil servant, who was convicted for offence involving conduct was to be dismissed straightaway. The Authorities even in the original rule, as discussed in the preceding paragraphs of the judgment, cannot dispense with the service of show‑cause notice. We are fortified in our view from the conclusion made by the Indian Supreme Court in case reported as AIR 1970 SC 2226. The relevant portion reads as under:‑
"It appears to us that proviso (a) to Art.311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with.
13. The third point raised by the learned counsel for the appellant was that since the sentence was suspended, therefore, the proceedings under Rule 9 were premature and not validly initiated. The learned counsel for the appellant in this behalf has placed reliance on the case of Muhammad Rafiq. Before proceeding any further we have to see the text of the order of suspension. The order is appended as Annexure 'B' and the operative portion reads as under:‑
"Rigorous imprisonment suspended."
It is, therefore, clear that the judgment of Special Military Court has not been suspended. The legal consequence which follows is that stigma remained intact. If we closely scrutinize the ratio decidendi in case of Muhammad Rafiq then it becomes clear that the view taken in that case is exactly the same what we have held. The relevant portion of the judgment which we would refer in this behalf reads as under:‑
"We are of the considered opinion unless and until the said conviction is set aside by the higher appellate authority, the same will remain in the field unless and until it is found that the appellate authority was pleased to suspend the judgment itself. Mere admission of appeal and grant of bail, will not entitle a civil servant to be treated as a person without conviction. "
It is evident that stigma remains there. The appellant has already undergone portion of the sentence, therefore, the mere suspension of remaining period will not remove the stigma. We have no hesitation to hold that the disciplinary proceedings against the appellant were legal.
14. The fourth point raised in support of the appeal is that conviction by Martial Law Court is of no legal consequences and the same does not furnish valid basis for action under rule 9. The learned counsel for appellant in this behalf has referred to the cases of Azam Khalil and Abdul Hafeez decided by this Tribunal. We have given our anxious consideration and find ourselves unable to agree with the principle laid down in these judgments. It is not possible to defend the view taken by the Tribunal in these cases in the presence of Art.270‑A of Islamic Republic of Pakistan, which reads as under:‑
"270‑A (2). All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977 and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever."
The Article itself is complete reply to the arguments of the learned Counsel for the appellant. This is not all. It seems that view of the Hon'ble Supreme Court of Pakistan in case of Muhammad Asghar v. Government of Sind reported as P L D 1977 SC 212, was not brought to the notice of this Tribunal.
This decision was referred in case of Agha Aqil Nasir v. I.G.Police, Quetta reported as 1984 S C M R 788. The relevant portion reads as under:‑
"On the question of the effect of pardon, this Court had in Muhammad Asghar v. Government of Sind PLD 1977 SC 212 declared that a free pardon does not restore a convicted person to public office forfeited by or in consequence of conviction, though it may remove disability for a fresh grant or employment. Learned Counsel vainly sought to distinguish this authority upon the submission that in the cited case the pardon had been granted by the Governor and that there had been no direction for reinstatement whereas in the present case such direction had been issued. Learned Counsel could not deny that on 24‑2‑1973, when the Governor in the cited case had granted pardon, he was possessed of the powers as a Zonal Martial Law Administrator. It is also not correct that in the present case a direction had been given to reinstate the petitioner, for, all that had been said in the letter dated 19‑7‑1971, was that the Inspector‑General of Police may proceed with the matter of his reinstatement as per service rules."
There is yet another reason that Article 270‑A was introduced in the Constitution through Presidential Order 14 of 1985. The same was replaced by Act XVII of 1985, which is now an integral part of the Constitution. There was no such provision when earlier cases were decided by this Tribunal. In the changed circumstances, the argument is utterly misconceived.
We are under constitutional obligation not only to follow the Constitution but also decisions of Supreme Court of Pakistan on question of law. This again is Constitutional obligation under Article,189 of the Constitution of Islamic Republic of Pakistan. We, therefore, with great respect hold that the earlier view of this Tribunal in cases of Azam Khalil, Abdul Hafeez and Muhammad Rafiq is not a good law and in consequence of the provision of Article 270‑A of the Constitution of Islamic Republic of Pakistan does not hold good.
The last argument that the order of Respondent No.l is void because the appellant cannot be dismissed from service from back date. The order, as already noted, is dated 19‑8‑1985, while the appellant has been dismissed from service from 9‑5‑1983. It is true that the executive order cannot be given retrospective effect. But the error is not fatal and this Tribunal is fully competent to 'vary'/ 'modify' the order and rectify the error. The learned counsel for the appellant has referred to the case of Noor Muhammad v. Member Election Commission Punjab reported as 1985 S C M R 1178. We have gone through the judgment minutely and find that the same directly lends support to our view. The case of Mahboob Alam v. Secretary Ministry of Defence and two others reported as 1988 P L C (C.S) 252, is direct authority on the point. The relevant portion of which reads as under:‑
"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 of Pakistan reported as 1985 SCAR 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."
In the light of the above detailed discussions, we find no merit in the appeal and the same is dismissed with costs. The appellant shall stand dismissed from service from 19‑8‑1985.
S.Q./197/Sr.P
Appeal dismissed