' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the office order, dated 9-4-1999 whereby the Board of Sindh Agricultural Supplies Organization (hereinafter referred to as "SASO") withdrawn the reinstatement orders of various employees of SASO including that of appellant.
2. The facts relevant for the purpose of disposal of this appeal are that in the years, 1986-87 appellant was posted as Sales Inspector, Dadu was Incharge of Bulk Depot, SASO at Dadu. During inspection conducted in November, 1986, April, 1987 and at the time of handing over of charge in September, 1987, heavy stock of urea etc., valuing Rs,55,49,595,50 was found short. Appellant was thus proceeded with departmentally and was served with a show-cause notice, dated 6-10-1987 followed by a final show-cause notice, dated 18-9-1988, which he replied. His replies were not found satisfactory and by order, dated 13-11-1988 he was awarded major penalty of dismissal from service. Instead of challenging the said dismissal order before appropriate departmental appellate authority, appellant remained mum for five years. He then submitted an application on 6-11-1993 to the then Chief Minister, Sindh, who on a summary floated to him passed orders of appellant's reinstatement in service on 2-5-1994 and in pursuance thereof order, dated 17-5-1994 reinstating appellant in service was issued by the Deputy Director, S.A.S.O. Hyderabad Division subject to its confirmation by SASO Headquarter, Karachi. The matter was then placed before the 2nd meeting of the Board of S.A.S.O. Held on 8-4-1998, wherein it was decided that the orders of reinstatement in service of appellant and many others should be withdrawn. Accordingly, by office order, dated 9- 4-1999 appellant's order of reinstatement, dated 17-5-1994 was withdrawn. After availing departmental remedy which remained unresponded, appellant has filed the present appeal before this Tribunal.
3. In support of appeal, learned counsel for the appellant argued that order of reinstatement remained in field for about 4 years thus a valuable legal right was accrued to the appellant which under the principles of locus poenitentiae was neither to be varied nor modified by any authority.
He further contended that Chief Minister being the Chief Executive of the province ordered appellant's reinstatement in service in exercise of his plenary powers, therefore the S.A.S.O., Board was not legally competent to withdraw the same. The order of SASO Board being coram non judice is liable to be struck down. Next, he submitted that apart from disciplinary proceedings, which were conducted without any regular inquiry, appellant was challaned to face trial in the Court of learned Special Judge, Anti-Corruption, Hyderabad along with one Ghulam Mustafa Memon and by order, dated 11-8-1996, they both were acquitted under section 249-A, Cr.P.C. Therefore, the decision of Board recalling the reinstatement order of appellant is neither maintainable nor sustainable in law.
4. In rebuttal, learned counsel appearing for S.A.S.O., argued that appellant was dismissed from service vide order, dated 13-11-1998 which he never challenged before the competent forum and that the Chief Minister was not the appellate departmental authority therefore, order of Chief Minister reinstating appellant in service after a lapse of over 5 years carries no legal value in the eyes of law. He submitted that appellant was dismissed from service, as such under Rule 4(2) of the Sindh Civil Servant (E&D) Rules, 1973 he was disqualified for future employment. He also submitted that appellant was dismissed from service on account of defalcation of huge amount of Rs,55,49,595.50 and such charge was successfully proved against appellant and he was thus rightly penalized. He stated that in his application, dated 12-9-1987 addressed to the Minister Agriculture/Chairman, S.A.S.O., appellant admitted his guilt that he had issued fertilizer to the growers on credit amounting to Rs,55,00,000, therefore, in view of admission of guilt, there was no necessity of conducting any regular inquiry. In support of his contention he relied upon 2002 SCMR 584, 2003 SCMR 41 and 2003 SCMR 367. Further he contended that this Tribunal on similar facts and grounds had earlier dismissed four appeals bearing Nos. 135/1997, 260/1999, 269/1999 and 276/2001.
5. We have considered the above submissions and perused the material placed on the record.
Admittedly, after being dismissed from service vide order dated 13-11-1988 appellant had not exercised his right of appeal as provided under Rule 10 of the Sindh Civil Servants (E&D) Rules, 1973 to the appropriate authority and the same thus attained finality. However, after a lapse of about five years appellant submitted an application to the Chief Minister for his reinstatement and by order dated 17-5-1994, appellant was reinstated in service under the orders of the Chief Minister.
The Chief Minister under rule 10-A of the Sindh Civil Servants (E&D) Rules, 1973 (as adopted by S.A.S.O.) though empowered to call for and examine the record of any proceeding under the Rules of 1973 fo the purpose of satisfying himself as to the correctness, or propriety of any finding, penalty or order in, irregularity of, such proceedings. However, under 2nd proviso of sub-rule (2) of Rule 10- A, an order imposing penalty shall not be revised by the Chief Minister after the period of six months from the date of its communication to the civil servant if no appeal is preferred. Sub-rule
(3) of Rule 10-A, further provides that no proceeding under this rule shall be entertained at the instance of the ciVil servant who has not filed the appeal. Admittedly, as stated earlier, appellant had not preferred any appeal against the order of dismissal from service. In view of the above mandatory rule, the order of the Chief Minister, reinstating appellant in service after the passage of over 5 years by no stretch of imagination can be termed as legal and valid. The then Chief Minister Sindh as it appears flouted the mandatory rules for which there was no justification at all and which was opposed tooth and nail by the S.A.S.O.
6. It is worth while to mention here that appellant was found guilty of defalcation of huge amount of Rs,55,49,595.50 and further that in his application addressed to Minister Agriculture he admitted that he had issued fertilizer to the growers on credit. Under the rules he was not legally authorized to supply fertilizer to any of the grower on credit. Since appellant had admitted his guilt, therefore, non-holding/conducting of regular inquiry was not at all fatal. As regards appellant's acquittal from the criminal charge by learned Special Judge Anti-Corruption, Hyderabad it is suffice to say that it is by now a well settled principle of law that, acquittal in criminal case is no bar for imposing any penalty in departmental proceedings under Efficiency and Discipline Rules, 1973. In a very recent case of Muhammad Ashraf Khan v. Director Food, Punjab, Lahore and another, 2004 SCMR 1472 (August part), it has been observed that:-- "Acquittal in criminal case does not debar Departmental Authorities from taking action against civil servant in accordance with the service laws and rules. Both proceedings, can go side by side, as their nature is totally different. Criminal proceedings are conducted by the Criminal Court on the allegations levelled in the criminal case whereas departmental proceedings proceed on the charges of misconduct and malversation in accordance with service laws. Objects of prosecution on criminal charge and departmental proceedings are entirely different; one relates to the enforcement of criminal liability and the other is concerned with service discipline. Acquittal on criminal charges has no bearing on disciplinary proceedings."
7. It is once again pertinent to point out here that this Tribunal had earlier in the similar facts and circumstances dismissed appeal No,135 of 1997 (Muhammad Ali Mangi) vide judgment, dated 26- 5-2000, appeal No, 260 of 1999 (Bashir Ahmed Kamboh) vide judgment, dated 2-6-2000 (reported as 2002 PLC (C.S) 726), appeal No,269 of 1999 (Syed Alam Shah) vide judgment, dated 28-2-2002 and appeal No,276 of 2001 (Qamaruddin Shaikh) vide judgment, dated 31-10-2002. Appellant's learned counsel stated that these four judgments were distinguishable but failed to point out a single distinguishable aspect or feature.
8. So far applicability of principle of locus poenitentiae is concerned, it is settled proposition of law that if the order is illegal then the perpetual rights cannot be gained on the basis of such order and principle of locus poenitentiae is not attracted as per principle laid down by the Honourable apex Court in Jalauddin's case reported as PLD 1992 SC 207.
9. For the aforesaid reasons, we are of the considered opinion that the order reinstating appellant in service passed by the then Chief Minister, Sindh was passed without legal authority and was of no legal consequence and thus has rightly been withdrawn. The impugned order thus calls for no interference. Accordingly, finding no force in this appeal, it is hereby dismissed leaving the parties to bear their costs.
10. Announced in open Court.