1986 P L C (C.S.

) 310
 
[Service Tribunal Punjab]
 
Present: S. Abdul Jabbar Khan, Chairman,
 
Malik Zawwar Hussain and Abdul Hamid Chaudhry, Members
 
MUHAMMAD SAEED
 
versus
 
MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB, LAHORE and others
 
Case No. 40138 of 1983, decided on 14th June, 1983.
 
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--
 
---R. 9--Dismissal from service on conviction by Court of competent jurisdiction--Interim stay
granted on' appeal but order of dismissal restored by successor appellate authority--Held: A
person once convicted shall have to be dismissed from service unless main judgment is
suspended by appellate Court.
 
(b) Civil service
 
--- Review--Question whether Government was competent to grant permission to review order of
predecessor authority when matter related to a civil servant under Efficiency and Discipline
Rules, decided by Tribunal in affirmative, holding that same could be done by Government in
matters of administrative control on its revisional side of jurisdiction.
 
Syed Jamshed Ali for Appellant.
 
A.G. Humayun District Attorney for Respondents.
 
JUDGMENT
 
S. ABDUL JABBAR KHAN (CHAIRMAN). --Muhammad Saeed, Stenotypist to Assistant
Commissioner Norwal, has filed this appeal under section 4 of the Punjab Service Tribunals Act,
1974, in which he has impleaded the Member (Rev.), Board of Revenue, Punjab, Lahore and the
Commissioner, Gujranwala Division, Gujranwala, as respondents.
 
2. By virtue of this appeal he has prayed that the order dated 16-10-1982, addressed by
respondent No. 1 to respondent No. 2 and order dated .30-1-1983, passed by the respondent No.
2, whereby respondent No. 2, was pleased to review and set aside his predecessor's orders dated
15-12-1979 and 22-12-1977,-be set aside.
 
3. Brief facts of the case are that the appellant who was working as Stenotypist was convicted for
an offence under section 409, P.P,C. read with section 5 of Act No. 2 of 1947, by the learned
Special Judge Anti-Corruption and sentenced to imprisonment till the rising of the Court and a
fine of Rs. 500 vide his judgment dated 31-8-1977. The appellant filed an appeal before the High
Court in Appeal No. 939 of 1977, which has been admitted to regular hearing. On the basis of
the said judgment of the learned Special Judge, the learned Deputy Commissioner Sialkot was
pleased to dismiss the appellant vide order dated 19-10-1977. The appellant filed appeal against
the said order before the learned Commissioner, Lahore Division, Lahore, who vide his order
dated 22-12-1977, stayed the operation of, the said order of the Deputy Commissioner. Similarly
when the service appeal of the appellant came for regular hearing before the Commissioner,
Lahore Division, Lahore, the said Commissioner was pleased to order in the following terms:
 
"The proceedings in the instant appeal are, therefore, closed for the present. The Deputy
Commissioner, Sialkot will please arrange to pursue the case in the Lahore High Court
and get this file restored if the sentence already awarded to the appellant is upheld by the
High Court. In the alternative, if the appellant is acquitted by the High Court, he may
please allow the official to continue in service by withdrawing his order of dismissal".
 
The present Commissioner, Gujranwala Division, Gujranwala when came to know that a
convicted Government servant is still continuing in service on the order dated 22-12-1977 he
took up the matter and requested the Government to allow him to review the previous order of
his predecessor. The matter was referred to the Board of Revenue in its revisional jurisdiction
and the Board of Revenue was pleased to allow -the request so made by the Commissioner,
Gujranwala Division lifter receiving the said permission the appellant was summoned and was
heard in person. Learned Commissioner, upheld the order of the Deputy Commissioner by which
he was dismissed from service being a convict. Hence this appeal.
 
4. We have heard the learned counsel for the appellant as well as learned District Attorney
assisted by the representative of the Department and have perused the record of this case
carefully with their assistance.
 
5. The crux of the lengthy arguments of the learned counsel for the appellant is whether the
Board of Revenue could grant permission to the Commissioner to review the order of his
predecessor when the matter related to a civil servant under E a D Rules.
 
6. Learned District Attorney before entering into this proposition has admitted that of course
there is an order of Commissioner, Lahore Division, Lahore, dated 22-12-1977, by which the
operation of the Deputy Commissioner order, was suspended till the decision of the appeal.
According to learned District Attorney, the second order of Mr. M. Afzal Kahut, learned
Commissioner, Lahore Division, Lahore, has no where said, while disposing of the appeal of the
appellant in the terms so mentioned above, in the earlier part of our judgment that the stay order
so granted by his predecessor would remain in the field. According to the learned District
Attorney, the learned Commissioner, Gujranwala Division, made a futile exercise by asking
permission to review the order which in no way had granted immunity to the appellant as it did
not extend the earlier interim stay order granted by his predecessor. However, on the legal plane,
it has been submitted that the learned Commissioner, Gujranwala Division, has been granted
permission to review and the same could be granted on the administrative side by the
Government/ Board of Revenue, under its revisional jurisdiction.
 
7. We have given our anxious thought to the arguments so advanced by the parties and before
going through the crucial issue in this case, it would be proper to deal with its past history so as
to see how far the learned Commissioner was correct in seeking the permission to review ` the
order of his predecessor.
 
8. The past history of this case is simple one which discloses that a civil servant /appellant was
dismissed after he stood convicted by the Court of competent jurisdiction for an offence relating
to moral turpitude. It is a well-settled principle of law that a person once convicted shall have to
be dismissed from service uless and until the main judgment is suspended by the Court of
Appeals as mere admission of an appeal to regular hearing does not suspend the judgment
automatically. In the present case, the Deputy Commissioner was fully justified to pass the
impugned order as he had no alternative but to dismiss the appellant. When the appellant went in
appeal before the appellate authority the Commissioner, Lahore Division, Lahore, the same was
admitted to regular hearing and the order of the Deputy Commissioner was suspended. If this
case would have been decided the same day, the matter would have been different. This appeal
came for regular hearing before Mr. M. Afzal Kahut the successor of the learned Commissioner,
who had passed the interim suspension order and he was pleased to observe while disposing of
the appeal that the Deputy commissioner should pursuse the matter in the High Court to get the
case expedited and in case the judgment is upheld, the appellant's dismissal will be fully justified
and in case it was set aside the appellant would be restored in service. Learned counsel for the
appellant wants us to believe that this order in a way has confirmed the earlier order of the
predecessor of Mr. M. Afzal Kahut with regard to the suspension of the judgment passed by the
Deputy Commissioner, therefore, the appellant should remain in service till the case was decided
by the High Court. We have assessed this argument and are not impressed by the same. In fact
the learned Commissioner Mr. M. Afzai Kahut,, should have disposed of the appeal with some
final observation and should not have kept the matter in fluid state. This order lacks finality and
is capabale of different interpretation suiting to the parties in this case. Learned District Attorney
interprets this order has given no relief to the appellant while the learned counsel for the
appellant insisted and vehemently contested that this order has kept alive the earlier order by
which the impugned judgment was suspended. To our mind this order should have indicated by
making it clear that till the decision of the High Court the impugned judgment of the Deputy
Commissioner, would remain suspended. The lack of this observation has stored up this
controversy which is unfortunate and to our mind, unless and until there is a positive indication
by the authority that the earlier interim stay order would continue in the field till the decision of
the appeal by the High Court, the presumption would be that the said authority has refused to
extend the life of earlier interim stay order.
 
9. With regard to the legal objection as stated above as to whether the Government was
competent to grant permission to the present Commissioner to review the order of his
predecessor, we are of the considered opinion that same can be done by the Government in
matters of administrative control, on its revisional side of jurisdiction. The Commissioner being
subject to the control of Government, the Government was fully justified to permit him to correct
the obvious error which has crept in due to faulty order, dated 15-12-1979.
 
10. The result is, we dismiss the appeal as being without any merit, any uphold the order dated
30-1-1983, by the Commissioner, Gujranwala Division. There will be no order as to costs.
 
M. I.
Appeal dismissed.