ABDUL SHAKURUL SALAM, r.-The appellant was employed as Inspector, Central Excise and Land Customs, Rawalpindi Range. It was stated in the petition that he served the Department for 31 years with unblemished record. A Welfare Committee constituted by the employees for their benefit ran a Fair Price Shop at Rawalpindi. The Committee was independent and distinct from the Department. The funds, profits and losses of the shop belonged to the Committee and were no part of the Government Funds. Shortage of goods worth Rs. 17,689.42 in the shop was discovered on' audit but the Divisional Welfare Committee vide letter dated 30-4-1976 found the shortage `'as trade loss in total sales of Rs. 1,65,965" and condonable. On some secret information received from an undisclosed informant, the F. I. A. Got a case registered on 1-7-1976. On 2-12-1978, the Ministry of Interior being of the view that the appellant who had acted as Assistant Manager, of the shop had committed an offence under section 4C9, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947, sanctioned his prosecution. Information to that effect was sent to the Central Board of Revenue, ultimate, head of the Customs Department, saying that action may be taken to suspend the accused from service. The Collector (Customs), thereupon, suspended the appellant on 7-1- 1979 but he being not the competent authority, an order, was passed by the Deputy Collector (Customs) on 14-4-1980 in substitution. Of the order dated 7-1-1979. The order of suspension, it is submitted,, has been extended from time to time todate. The appellant challenged the sanction :of his prosecution and the order of his suspension by means of Writ Petition No. 7445/S of 1980. Report was called for within 3 weeks vide order dated 8-7-1980. It was not yet received whey the case came up before the learned Single Judge on 23-12-1980 and the learned counsel for the appellant produced photostat copies of the comments. The .Learned Single Judge observed that "it is not clear as to how the petitioner managed, to get hold of this document." The learned counsel for the appellant asserted that "his client may be prosecuted for the theft of this document but relief- may be granted to him as prayed for in the writ petition". The learned Single Judge formed the view that the appellant having not come with clean hands, was, not . Entitled to relief and he dismissed the writ petition on 23-12-1980. Hence this I: C. A.
2. Learned counsel for the appellant has contended that the appellant was not acting in his capacity as a public servant when he was working as . An Assistant Manager of the Fair Price- Shop which was separate and distinct from the Government Department. .The shortage in goods was found as "trade loss" by the higher managing Committee. Therefore, question of any offence under section 409, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947 did not arise.
Consequently, grant of sanction for the prosecution of the appellant was uncalled for and totally without lawful authority and consequential order of suspension was also without lawful authority.
He has also submitted that the order of .Suspension was riot extended within the permissible period of time and has been passed mechanically. It is arbitrary to keep an employee in suspense for more than 2 years without any decision on merits, which has not yet been taken in the case in hand.
3. Learned counsel .For the respondents has submitted that against the order of suspension, the appellant has a right of appeal before the Service Tribunal and; consequently, the writ petition was incompetent. He has referred to Muhammad Sadiq Khokhar V. Engineer-in-Chief Pakistan Army, G.
H. Q. Etc. (1981 PLC (C. S.) 123). He has also submitted that the question as to whether the sanction was validly granted or not, the appellant can raise before the Court when he is put to trial.
4. After hearing the learned counsel for the parties, we are of the view that the order of suspension had been passed in consequence of the directions issued by. The Ministry of Interior, who had granted the sanction for prosecution of the appellant. Besides the forceful contentions regarding its continuance validity, the basic order requiring adjudication is the order granting sanction of the prosecution of the appellant. If this be valid, then, the order of suspension Will be challengeable before the Service Tribunal. But if that is void, the consequential order passed will automatically fall through. As nothing can be raised or based on the void. The crux of the controversy, therefore, is whether the appellant has committed any crime "in the capacity of a public servant", for which sanction has been granted to prosecute him. Section 409, P. P. C. Reads as follows : "Whoever, being in any manner entrusted with property. Or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney.Or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ton years; and shall also be liable to- fine."
"Criminal breach of trust" is defined in section 405, P. P. C. Which is as follows :- "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of. Any legal contract, express or implied, which be has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits `criminal breach of trust'."
From the statement of facts made above, it would appear quite clearly that the appellant was not acting on the Fair Price Shop "in his capacity as a public servant." He may be a public servant, but he was acting on the shop as an Assistant Manager of the Welfare Committee. His being a public servant and acting in the capacity of a public servant are two different and distinct facets. A person may be a public servant and for that reason taken as has been the case in the past definitely- as a responsible honest man an entrusted with private property or something valuable and dear. However, if he proves false or betrays the trust, that does not mean that he had committed the crime "in his capacity as a public servant" . The crime comes in when entrustment of the property is "in his capacity of a public servant". In the present case, the appellant, though a public servant, was not entrusted with the goods of the Fair Price Shop "in his capacity as a public servant" but as an agent of the Welfare Committee to purchase and sell the goods. Little shortage in the goods was taken as "trade loss" by the higher authorities of the Committee. Consequently, question of being entrusted with property "in his capacity of a public servant", and "dishonestly misappropriates" the property, did not arise. This being so, there was no occasion or, basis for the grant of sanction of prosecution of the appellant as public servant. The order is void altogether and without lawful authority. This being so, the consequential instructions and the order by which the appellant was suspended and kept in suspense since 7-1-1979, falls through. We cannot help expressing our astonishment and grief that the appellant who had put in 31 years of service with unblemished record has been kept on tenterhocks for more than two years towards the fag-end of his career. Nobody took the trouble to take any action one way or the other for this long period.
Public power has been abused quite clearly.
5. We are afraid the learned Single Judge fell in error in non-suiting the appellant on the ground that his learned counsel produced the Department's report intended to be submitted ultimately in the -Court and the learned counsel could not explain as to how he bad got the copy of the report.
Learned counsel took the unwise stand that "his client may be prosecuted for theft of this document but relief may be granted to him ac prayed for in the writ petition". The submission was too blunt. Nonetheless, the relief had to be granted or refused on the basis of the merit of the petition. Of course, conduct of the writ petitioner in relation to the relief sought was and is always relevant and if a petitioner comes with unclean hands in relation to the controversy in issue, he may be refused relief. But if the relief sought the petitioner is entitled to, he cannot be declined the relief simply because he has produced a document which was ultimately, most likely, to be put in Court by the other side and to which the petitioner would be entitled to refer. Anxiet and stress-- apparent in the circumstances-led the petitioner-appellant in the circumstances-to overact and his learned counsel, instead of making humble submission as was his duty and ask for time to argue the matter when the report was put in Court, took too coarse a stand. But human frailities cannot and need not derail the course of justice all the way. Therefore, we are of the view that the learned Single Judge erred, we say so with respect, in dismissing the writ petition on the preliminary hearing on the ground that he did. Consequently, we set aside the order appealed against. For the reasons given in the previous paragraph, we declare the order of sanction of prosecution of the appellant as without lawful authority and of no legal effect. Consequential order of suspension falls through automatically. After 31 years of service with unblemished record, the appellant has been treated most shabily and kept in suspense too long. Enough is enough. The appeal is allowed. But as the writ petition had been -dismissed in limine, the parties shall bear their own costs.