RIAZ AHMAD KHAN, J. - This judgment is directed to dispose of W.P. No. 2092 of 2012.
2. Brief facts of the case are that the petitioner while serving as Joint Director, ZTBL, was served with a notice issued by NAB in the year 2002. The inquiry initiated by the NAB remained in progress, when in 2005 prior to authorization of investigation, the petitioner submitted an application before the Chairman NAB for voluntary return. The said application was accepted and the petitioner was intimated vide letter dated 05.12.2005. Consequent to the same, the petitioner deposited an amount of Rs. 56,00,000/- and letter dated 29.9.2006, regarding discharge of liability through voluntary return, was issued by the NAB authorities.
3. The respondents/bank authorities making the voluntary return of the petitioner as basis of allegation, issued show-cause notice to the petitioner on 06.11.2006. The petitioner filed a proper reply. The petitioner was afforded personal hearing, but thereafter Penalty of' Compulsory Retirement from Service was imposed upon the petitioner. The petitioner filed departmental representation- against the said order. During pendency of the representation the Appellate, Authority sought opinion from the M/o Law & Justice;- learned opinion was provided, wherein it was Stated that the case of the petitioner could not be proceeded against on the basis of voluntary return, In the legal opinion, fresh inquiry was recommended. Accordingly, the representation was accepted; the order regarding compulsory retirement was set aside and the competent authority was directed Jo hold proper inquiry, the petitioner was, however, reinstated in service The said order was passed on 12.7.2007.
4. On 127.2011, again the respondents/bank authorities issued a show-cause notice, wherein the same allegations were repeated, which had earlier been levelled. The petitioner filed reply to the same. The petitioner then filed W.P. No. 10352/2011 before the Hon'ble Lahore High Court, MuItan Bench with a prayer that the petitioner be provided incriminating evidence on the basis of which the petitioner was issued charge-sheet, The said petition was disposed of with a direction to the respondents to provide incriminating evidence to the petitioner and it .Was further provided that coercive measures shall not be adopted ; without holding an inquiry.
5. The petitioner again filed another writ petition bearing No. 11404/2011 before the Hon'ble Lahore High Court, MuItan Bench for the same relief, which was also disposed of. The petitioner was again issued show-cause notice on 13.10.2011, on the basis of an ex parte inquiry, wherein the petitioner was asked to file a reply within six" days. According to the petitioner, the said show-cause notice was received by him on 18.10.2011 and as suer the petitioner could file reply upto 25.10.2011. The petitioner Was issued another notice directing to appear for personal hearing on 23.10.2011, which was afterwards changed to 24.10.2011 and then to'.25.10.201.1 and. On 25.10.2011 penalty of dismissal from- service was imposed upon the petitioner. The basis for passing the order was again the voluntary return made by the petitioner. The petitioner challenged the said order of dismissal through present writ petition, which was filed before the Hon'ble Lahore High Court. However, due to territonal jurisdiction,-the petition was returned to the petitioner and thereafter the petitioner filed the same before this Court.
2. Learned counsel for the petitioner submitted that the petitioner had applied for voluntary return and the offer was accepted by the NAB. Authorities. The petitioner was discharged of all the allegations levelled against him and the payment, of any amount by the petitioner did not amount to conviction. Since, the petitioner had not been convicted, therefore, on the basis of said voluntary return, the petitioner could not be dismissed from service. The learned counsel further submitted that once the petitioner was reinstated, then on the basis of same allegation, fresh how cause notice could not be issued. Furthermore, neither any inquiry was held nor any allegation regarding corruption corrupt practices was levelled. No evidence regarding corruption of the petitioner was ever produced. So, on the basis of mechanical order major penalty could not be imposed. Learned counsel for the petitioner, in support of his contentions referred to the case-law reported as 2007 PLC (C.S.) 247.
3. On the other hand, learned counsel for the respondents submitted that the petitioner admitted his guilt before the NAB authorities and consequent to the same, had deposited the' amount obtained through corruption/corrupt practices; so, depositing the amount, amounted to conviction. The learned counsel further submitted that the convicted person had no right to remain in service and was therefore, rightly dismissed from service. The learned counsel further submitted that even if the petitioner was exonerated from the charge, that did not mean that the petitioner could not be proceeded thereafter. The learned counsel in support of his contentions, referred to the case- law reported as PLD 2003 5.C. 837 and 2011 SCMR 1560.
4. I have heard learned counsel for the parties and have also perused the record.
5. In the present case, the petitioner submitted application with the request to accept voluntary return on 03.2.2005. The said application was accepted vide letter dated 05.12.2005. The order regarding discharge of liability was issued by the NAB on 29.9.2006. Since, application for voluntary return was filed under Section 25(a) of the National Accountability Ordinance, 1999; so, for the sake of convenience, the Same is reproduced herein below:- '725. Voluntary return and plea bargain:
(a) Notwithstanding anything contained in Section 15 or in any other law for the time being In force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from an his liability in respect of the matter or transaction in Issue: Provided that the matter is not sub-judice in any Court of law."
6. Section 15 of the National Accountability Ordinance, 1999 provide - the consequences of conviction recorded under the ordinance. In the present case, Section 15(a) of the National Accountability Ordinance, 1999 is ^ relevant, which is reproduced as under:- I ' v: "15. Disqualification to contest elections hr to hold public office7: [(a) Where an accused person in convicted {of an offence under Section 9 of this Ordinance} he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province: Provided that any accused person who has availed the benefit of {sub-section (b) of Section} 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, If any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.]" Proviso of Section 15(a) ibid clearly shows that a person, who has availed benefits of sub section (b) of Section 25 of NAO, 1999 which is regarding plea bargain shall also be deemed to have been convicted, but the said penalty has not been provided for any accused person, who has availed the benefit of sub-section (a) of Section 25 ibid, which is regarding voluntary return. Section 25(a) ibid is regarding voluntary return, whereas, Section 25(b) ibid is regarding plea bargain. The difference between voluntary return and plea bargain is to be kept in view, In case of voluntary return, the accused is required to come forward voluntarily o return the assets or gains acquired or made by him in the Course, or as the consequence, of any corruption/corrupt practices. If the offer is made prior to authorization of investigation, the Chairman NAB will have the authority to accept the offer made by the accused and thereafter may discharge the accused person from all liabilities.
7. If the accused person does not avail facility of voluntary return and investigation is authorized, then the accused may avail 'facility of plea bargain, In case of plea bargain, if the offer made by the accused person is accepted by-the Chairman, he shall refer the case to the Accountability Court for approval. The plea bargain can be effected during trial and even at appellate stage. The facility of voluntary return can be attained by the accused person prior to authorization of investigation; whereas, in case of plea bargain, the offer is made by the accused after authorizable of investigation, In case of voluntary return, the^Mian NAB has exclusive authority; whereas, in case of plea bargain, the order is passed by the Court, as the Court has to approve the offer accepted by the Chairman. The Court in such a "case would include Trial Court as well as Appellate1 Court, In Case Of plea bargain, the decision amounts to conviction, but in case of voluntary return no conviction is recorded by any Court. Since, in case of voluntary return no conviction is recorded, therefore, consequences attached with the conviction under Section 15 Of the National Accountability Ordinance, 1999 are not attracted in case of a person, who avails the benefits of voluntary return.
8. In .The present case, admitted position is that the petitioner had availed facility of voluntary return and not plea bargain. As such, he was not convicted by the Accountability Court. Since, there was no conviction, therefore, the petitioner could not be proceeded against departmentally on the basis of, his act of entering into voluntary return with the NAB authorities. The first order, on the basis of which the petitioner was compulsory retired, was - thus illegal. However, the same was corrected by the Appellate Forum. There is no doubt that the Appellate Authority had asked the competent authority to proceed against the petitioner in accordance with law, but if there was any allegation of corruption or corrupt practices, the competent authority could initiate fresh proceedings, record fresh evidence regarding corrupt practices of the petitioner and thereafter could pass any order in accordance with law. In the present case, no allegation of corruption/corrupt practices was levelled against the petitioner, rather on the same allegation that he had entered into voluntary return with the NAB authorities, again he was proceeded against.
This act of the respondents was totally illegal, as even in the earlier case the respondents had been informed by the Law & Justice Division that the petitioner could not be proceeded against for effecting discharge of liabilities under Section 25(a) of NAO, 1999. This fact also can not be ignored that subsequent proceedings were initiated after about 3-years, which clearly reflects malice on the part of respondents.
9. Since, there was no fresh allegation of corruption/corrupt practices, therefore, neither any charge was framed to that effect nor any evidence was recorded. So, the order passed against the petitioner regarding dismissal was totally unjust, mala fide, without jurisdiction and of no legal effect.
10. As far as the citations PLD 2003 S.C. 837 and 2011 SCMR 1560 referred to by learned counsel for the respondents are concerned, the same are regarding plea bargain and not regarding voluntary return/ As such the citations are not applicable to the facts of present case.
11. In the above said circumstances, the order of dismissal from service dated 25.10.2011 is set aside.
The petitioner be reinstated in his service with effect from the date, he was dismissed from service, with all back benefits. The petition is accordingly accepted with costs.