M.A. AZIZ (MEMBER).--- Briefly stated facts of the case are that in the disciplinary proceedings against the appellant under the Government Servants (Efficiency and Discipline) Rules, 1973, the authority passed order dated 11-2-2002. The operative part of the order reads as under:--- "The accused has stated that his absence started from 7-1-1996 on account of medical grounds but he did not adopt the prescribed procedure. However, service records indicates that his conduct upto January, 1996 was in order and nothing speaks adverse against him but when he was attacked by mental depression/anxiety due to sudden death of his father and two real uncles, he could not perform his official duties in be-fitting manner. Therefore, under the principle of natural justice, he may not be discredited for the period of service he performed properly.
' On carefully considering the facts of the case and after going through the entire record of the proceedings and agreeing with the recommendations of the Authorised Officer. 1, the Commissioner of Income Tax/ Wealth Tax, Companies Zone-II Lahore, being the authority in the case, impose major penalty of "compulsory retirement" from service with immediate effect.
' Copy of the inquiry report, recommendations of the authorized officer and extraordinary leave order granted vide this office Letter No,3325/Admn dated 11-2-2002 are enclosed as a part of this order."
' This order was passed in the backdrop of appellant's application for retirement.
His departmental appeal was rejected vide order dated 10-5-2004. The appellant filed Appeal No,508(L)CS of 2004 in this Tribunal.
2. In Appeal No,508(L)CS of 2004, this Tribunal passed the judgment dated 8-8-2009, operative part of which reads as under:-- "7. For the reasons discussed hereinabove, we have no hesitation in setting aside the impugned order and to modify the punishment imposed on the appellant to compulsory retirement with the direction that the period that he remained absent from duty will be treated as having been spent on medical leave and counted towards pension."
' On receipt of Federal Service Tribunal's judgment dated 8-8-2009, the Commissioner of Income Tax, Human Resources Management Division, Regional Tax Office, Lahore passed an order dated 24-10-2009. The operative part of this order reads as under:- "To implement the order of the learned Federal Service Tribunal dated 8-8-2009 in letter and spirit, Joining Report dated 16-9-2009 -submitted by the official (Mr. Khalid Latif Butt, Supervisor) is accepted and absence period of the official w,e,f, 7-1-1996 to 15-9-2009 is treated as under:--
(a) On medical grounds w,e,f, 7-1-1996 to 4-7-1996 (180 days) on full pay.
(b) On medical ground,, as a special case in entire service w,e,f, 5-7-1996 to 4-7-1997 (365) days on full pay.
(c) On medical grounds w,e,f, 5-7-1997 to 31-12-1999 (910-days) on half average pay.
(d) On Medical Grounds 1-1-2000 to 28-12-2001 (728-days) on half average pay against the period (12-2-2002 to 14-9-2009) when the appellant was in appeal before the FST
(e) On Medical Grounds 29-12-2001 to 11-2-2002 (45- days) on half average pay against leave not due.
(f) The period during appeal proceedings on different forums w,e,f, 12-2-2002 to 15-9-2009 is treated as spent on duty."
On 1-4-2010, the Commissioner, Inland Revenue, Human Resource Management, Regional Tax Office, Lahore passed a revised order. The operative part of this revised order reads as under:- "From the aforesaid judgment of the learned Federal Service Tribunal, Lahore it is crystal clear that the appellant has not been reinstated in service. The penalty of compulsory retirement w,e,f, 11-2- 2002 imposed upon the appellant has been maintained with the only modification that the period he remained absent from duty will be treated as having been spent on medical leave and counted towards pension.
' To implement the order of the learned Federal Service Tribunal dated 8-8-2009 in letter and spirit, the order of punishment imposing major penalty of Compulsory Retirement from Service treating the period of absence as leave without pay issued vide No,3326/Admn dated 11-2-2002 is modified to the extent that the period that he remained absent from duty will be treated as having been spent on medical leave and counted towards pension."
' On 21-4-2010, a letter was addressed by the Commissioner, Inland Revenue, Human Resource Management, Regional Tax Office, Lahore to the present appellant which reads as under:- "This is to inform that you have drawn payment over and above your entitlement. In this regard your account bearing No,01-102-10420-0 at Allied Bank of Pakistan, Temple Road Branch, Lahore has already been attached. Despite this the bulk of the payment is yet to be returned to you.
' You are, therefore, directed to deposit the entire amount immediately without further lapse of time, otherwise strict action will be taken as per law which may lead to lodging of F.I.R. Against you for your fraudulent act."
' In the instant appeal, the appellant has prayed that the order dated 1-4-2010 may be set aside, the appellant may be reinstated in service with all consequential benefits. It has further been prayed that the respondents may be directed to allow the appellant to draw his amount/salaries from his Bank Account.
3. The learned counsel for the appellant has argued that the appellant's ouster from service was not justified as the respondent-Department itself treated appellant's alleged absence as leave without pay meaning thereby that the alleged absence period was regularized and as such no justification rested with the respondent-Department to impose any penalty on the appellant in view of the law laid down by the apex court in a case reported as 2006 SCMR 434. According to the appellant, this Tribunal accepted the appellant's Appeal No,508 (L)CS of 2004, setting aside the compulsory retirement of the appellant and also issued direction to the departmental authorities for treating the absence period as spent on duty. Accordingly the respondent-Department implemented the judgment of the Federal Service Tribunal in its true perspective through order dated 24-10-2009. After reinstatement, the appellant served the Department for more than six months without any complaint or break whatsoever but unfortunately without issuing any notice to the appellant the impugned order dated 1-4-2010 was passed. The respondent-Department also attached the appellant's Bank Account wherein his own amount is available in addition to the amount of appellant's salary/pay deposited by the Department. Feeling aggrieved, the appellant filed departmental appeal on 28-4-2010 which has not been decided so far despite lapse of statutory period. The impugned order has been passed without affording the appellant a chance of personal hearing, without issuing him any notice. This act of the departmental authorities is not only violative of principle of natural justice but is also a negation of the law laid down by the apex court in a number of cases like 1994 SCMR 2232 and 2008 PLC (C.S.) 961. After the judgment of the Federal Service Tribunal, a lawful right has accrued in favour of the appellant which cannot be rescinded or recalled in view of the principle of locus poenitantiae. Hence the impugned order is liable to be set aside on the strength of law laid down in case 2007 PLC (C.S.) 1145 and 2008 SCMR 598.
4. On the other hand, the respondents have stated in their Parawise Comments/Objections that actually the order passed in appeal by the Federal Service Tribunal modified the penalty only to the extent that the period of absence from duty was treated as having been spent on medical leave and was to be counted towards pension while penalty of compulsory retirement was maintained.
The order dated 24-10-2009 for giving effect to the judgment of the Tribunal was made due to an inadvertent misapplication of the judgment of the Federal Service Tribunal dated 11-2-2002 which, when discovered was rectified vide order dated 1-4-2010. The appellant fraudulently received undue amount of Rs,1.25 million from the public exchequer and persistently failed to redeposit the said amount in the Government treasury till date despite letters dated 21-4-2010 and 29-4-2010. His Bank Account was seized for that reason. The credit balance in the said account is far less than the misappropriated amount. The judgment of the Hon'ble Supreme Court of Pakistan referred to by the appellant does not apply in this case. Now the Department has implemented the Federal Service Tribunal judgment in its true spirit. No show-cause notice is required before passing the order for giving effect to the judgment of the Tribunal. The appellant's wilfull silence lies on the order of illegal reinstatement issued inadvertently as a result of misinterpretation of the judgment of the Federal Service Tribunal was an attempt to deceive the Department. It has been prayed that the appeal may be rejected and the appellant may be directed to deposit the amount of Rs,1.25 million into Government exchequer without further delay.
5. We have considered the arguments of both sides and have perused the record.
6. We are of the view that the action taken by the respondents after the judgment dated 8-8-2009 of the Federal Service Tribunal is neither a matter relating to the terms and conditions of service of the appellant nor a matter relating to disciplinary proceedings. As such, the appeal is not maintainable and is accordingly dismissed. The Department is contemplating the lodging of the F.I.R. Against the appellant. Since such an action would lead to criminal proceedings, the Tribunal has got nothing to do with the matter.
7. There shall be no order as to costs. Parties are informed.