1. ' Appellant has preferred this appeal under section 4 of the Balochistan Service Tribunals Act, 1974, against the order, dated 9-10-2002, whereby he has been dismissed from service w.e.f. 1-4-2002.
2. ' The facts of the case are that, appellant was appointed as Naib Tehsildar in February, 1979 and in July, 1999, he was posted as Tehsildar, on Acting Charge basis. The appellant was arrested by the NAB Authorities in Reference No.1 of 2002. Challan of the same was submitted before the Accountability Court. Charge was framed and on conclusion of trial, appellant was convicted and sentenced to suffer R.I. For two years and to pay fine of Rs.10 lacs and in default to further undergo R.I. For one year vide judgment, dated 1-4-2002. Being aggrieved from the same, appellant filed an appeal before the High Court. The said appeal was accepted and the appellant was acquitted of the charge vide judgment, dated 9-9-2004.
3. ' After the appellant was convicted by the Accountability Court, on 1-4-2002, the respondent No.2, issued the impugned order of dismissal of appellant from service, against which, appellant made a representation to the competent Authority. The representation was also dismissed vide order, dated 28-5-2003. Hence instant appeal was filed.
4. ' Record reveals that, appeal was filed with a delay of few days and application for condonation of delay has been filed, stating therein that, when the order was sent to him by post, he at the relevant time was at Karachi and when he returned from Karachi and opened the envelope, which revealed that he has been dismissed from service.
5. ' During the pendency of instant appeal, the High Court passed the acquittal order, dated 9-9- 2004, thus he made an application under section 151, C.P.C., for placing on record the acquittal judgment and also approached the department for his re-instatement in service, but in vain.
6. ' Mr. Ayaz Sawati, learned counsel for appellant contended; that the basis of dismissal of appellant from service, was the conviction order, dated 1-4-2002, passed by the Accountability Court, which is no more in the field. Besides the conviction order, no departmental proceedings were initiated against him and further the appellant since 1979, till the date of his dismissal from service, had an unblemished service record of 23 years and during this period, no adverse remarks were ever passed against him. He pointed out that even the charge before the Accountability Court, as against appellant was that of a negligence, in attesting the mutation entries, prepared by co- accused Shah Nawaz Patwari. Learned counsel contended that, since the conviction order has been set aside by the High Court, therefore, appellant is entitled for re-instatement in service.
7. Regarding condonation of delay, it was contended that sufficient explanation has been given and the same has not been rebutted by the otherside.
8. ' Mr. Inayatullah Kasi, learned counsel for Respondents, vehemently opposed that appeal, by arguing, that the order of dismissal was proper and prayed that the appeal my be dismissed.
9. ' We have heard the learned counsel for parties and perused the record of the case.
10. ' It may be pointed out that the appellant was dismissed from service vide impugned order, dated 9-10-2002, only on the ground that, he has been convicted by the Accountability Court. For reference the impugned order is reproduced herein-below:-- "Government of Balochistan Revenue Department (Admn: Branch) Dated Quetta, the 9th October, 2002.
11. ' No. 72 A 15. In exercise of powers conferred upon him in terms of section 2(a) of the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 readwith Notification No.SORI- 3(2)7/S&GAD/1298-1398, dated 25th October, 2001 and by invoking Rules 9(3) of Balochistari Civil Servants (E&D) Rules, 1992, the Competent Authority is pleased to impose a major penalty of dismissal from service upon Arbab Lal Muhammad Tehsildar Recovery Officer E&T Directorate with effect from 1-4-2002 in view of conviction by the Court.
(2) Any emolument drawn by him beyond 1-4-2002 shall be recovered, as arrears of Land Revenue.
12. Muhammad Sharif Secretary Revenue Department."
13. ' A perusal of the same would show that the basis of his dismissal from service, was only the impugned order, dated 1-4-2002 and no departmental proceedings were initiated against him.
14. Thus the contention A of Mr. Ayaz Sawati, learned counsel has substance that, since the appellant has been honourably acquitted of the charge and that being the sole of his dismissal, as such he is entitled to be re-instated. In view of the acquittal order, passed by the High Court, inference can be drawn that the allegations against the appellant were baseless and he has been honourably acquitted. In this regard reliance is placed on 1998 SCM R 1993 (Dr. Muhammad Aslam v.
15. Government of NWFP through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others) wherein following observations were made:-- "The appellant was acquitted by the trial Judge as already pointed out above. It shall therefore, be presumed that the allegations levelled against him are baseless. In consequence, he has not been declared guilty. In presence of above meaning of "acquittal" the appellant is held to have committed no offence because the competent criminal Court has freed/cleared him from an accusation or charge of crime. The appellant is, therefore, entitled to the grant of arrears of his pay and allowances in respect of the period he remained under suspension on the basis of registration of murder case against him. This appeal succeeds and is allowed with no orders as to costs."
16. ' Mr. Inayatullah Kasi, Advocate, also opposed the appeal, on the round of limitation. When confronted with the explanation given by the appellant with regard to delay, he could not rebut the same. Besides an affidavit has also been sworn in support of the application. As pointed out herein-above that the appellant was dismissed from service on the basis of judgment passed by the Accountability Court and after the said judgment has been set aside by the High Court, there is no other charge against the appellant and the record reveals that no departmental proceedings were initiated against him. It may be pointed out that the basic order which has been set aside by the High Court, does not hold the field and it is a settled principle of law that the subsequent orders, which have been passed on the basis of same, would also be set aside. In this behalf reliance is placed on PLD 1958 Supreme Court 104 (Yousaf Ali v. Muhammad Aslam Zia and two others and Muhammad Aslam Zia and two others v. Yousaf Ali), wherein following observations were made:-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and nonexistent."
17. ' Whereas with regard to re-instatement of a civil servant in service, on his acquittal, reference is made to 2001 SCM R 269 (Atta-Ullah Sheikh v. WAPDA and others) wherein following observations were made:-- "(13) It appears that the Tribunal was of the view that, since after registration of the case, the appellant was placed under suspension, as such, the penalty imposed by the respondent No.3 was altogether separate than the findings in the criminal case. The record does not show that any different charge was levelled against the appellant in the departmental proceedings. On the contrary, it is evident that subject-matter was the same and action against appellant was taken on the basis of said criminal proceedings. Where the criminal charges are not established before a Competent Court of Law and the accused is acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified. Since the appellant was acquitted by the competent Court of law, it shall be deemed that he had not been suspended and would be entitled to all pay and allowances, admisible under the rules, minus the amount which he had already drawn."
18. ' Thus in view of the above discussion, since the appellant was dismissed only on the basis of conviction by the Accountability Court, which judgment does not hold the field and has been set aside by the High Court, thus we are inclined to condone the delay and set aside the dismissal order, dated 9-10-2002.
19. ' Consequently, appeal is accepted, impugned order of dismissal from service is set aside and he is directed to be re-instated in service with all back benefits.
20. ' No order as to costs.