' Zafar Ullah Khan, Ex-Superintending Engineer, Highway Circle, Lahore, has called in question order dated 31-3-1986, passed by Secretary, Government of the Punjab, Communication and Works Department, dismissing him from service w,e,f, 30-1-1985 when appellant was convicted by a Summary Military Court. The appeal/review to respondent No,2 was declined on 16-12-2002, which order has also been assailed in the instant appeal.
2. Appellant while serving as Director Establishment, Office of the Chief Engineer (South), Lahore, was involved in F.I.R. No, 10/84 under section 409/420/218/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Acts 1947, registered with Anti-Corruption Establishment, Lahore. The criminal case was attended to by a Summary Military Court who vide order dated 30-1-1985 convicted the appellant along with other co-accused. The conviction was challenged by his co- accused in Writ Petition No,676 of 1989 and vide order dated 23-1-2001, a Division Bench of the Lahore High Court set aside the conviction on two grounds. One of the grounds being that Murtaza Khan, SDO and Zafar Iqbal Shah, were convicted and sentenced to various terms of imprisonment and fine, were granted pardon by Martial Law Administrator, Zone 'A', and subsequently reinstated into service. However, the other convicts/accused who sought pardon were not extended the same benefit, therefore, discriminatory treatment having been meted out to them, violation of Article 25 of the Constitution of Islamic Republic of Pakistan was perpetrated. Another ground which weighed with the High Court in setting aside the conviction recorded by Summary Military Court was taken into consideration by the High Court, which held that the conviction by the Summary Military Court was illegal being in violation of the Pakistan Army Act, as more than three years had elapsed between the alleged embezzlement and the holding of trial by the Military Court under section 91 of the Pakistan Army Act. After the decision of the High Court on 23-1-2001, petitioner activated his case by submitting departmental representation to the authority on 22-11-2001. Since the same was not decided, appellant filed a Writ Petition No,20820 of 2001 in the Lahore High Court and vide order dated 26-11-2001, respondents were directed to dispose of the representation/appeal within stipulated period. In response to the order of the High Court respondent No,2 dismissed the review on 16-12-2002.
3. Learned counsel for the appellant contended that the conviction against the appellant having been set aside and there being no regular enquiry by the department determining his guilt, the authority was left with no alternative but to take the appellant back in service. On the other hand, learned. District Attorney felt it diffiCult to controvert the submission made by the appellant.
4. I have heard the respective counsel and perused the record.
5. There is no doubt that the appellant was not one of the petitioners in Writ Petition No, 676 of 1989 laying challenge to the judgment of the Summary Military Court convicting the appellant and others vide order dated 21-1-1985. However, tenor of the order would show that the judgment of the Military Court dated 21-1-1985 was set aside in toto being contrary to law and in violation of section 91 of the Pakistan Army Act, the law which authorized the Military Court to hold trial. If the judgment of the Military Court was set aside in its entirety, then irrespective whether appellant challenged it along with other convictees in the Lahore High Court, the benefit of any decision of the High Court will also be extended to the appellant as the judgment having been declared as coram non judice no more remains in the field. On the other hand, the authority of the appellant i,e, Secretary, Communication and Works Department, admittedly served the show-cause notice upon the appellant when he was in jail. File brought by the departmental representative has been perused by me which substantiates this factual aspect. Appellant being in jail neither could give an appropriate reply nor could appear before the authority, what is to speak of a regular enquiry. It has been held by the apex Court time and again that where the criminal charge fails in a Court of criminal jurisdiction, the department can still take action under Efficiency and Discipline Rules, provided there is sufficient material adduced during the enquiry, connecting the appellant with the misconduct. No enquiry was held, rather the appellant was served with a notice calling him to explain his involvement in a criminal case when he was in jail. Law envisages opportunity of hearing and not merely a recourse to the steps to be taken to afford a civil servant with opportunity of hearing. It has not been demonstrated that appellant failed to appear before his authority despite service of notice. The process should be complete, viable and transparent. Military Court's conviction having been set aside, there remains no evidence in the field to satisfy any reasonable and prudent person of embezzlement allegedly committed by the appellant. Two of the convictees namely Murtaza Ali Khan Kandhari, former S.D.O. And Zafar Iqbal got their conviction and sentence pardoned by the Martial Law Administrator, Zone 'A', with the direction that they he reinstated in service. There is no earthly reason why the same treatment be not meted out to the appellant.
6. Resultantly, appeal of the appellant is accepted. Orders dated 31-3-1986 and 16-12-2002 are set aside. Counsel for the appellant submitted that appellant reached the age of superannuation on 6-6-1993. Acceptance of this appeal would only render monetary benefits upon the appellant.