' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant, while serving as Field Motivator in the Population Planning Department, was involved in a case under section 307 read with section 323 of the Pakistan Penal Code. He was suspended from service with effect from 18th June, 1977. The trial of the criminal case ended in his conviction on 28th October, 1978, and he was sentenced to undergo rigorous imprisonment for three years. In appeal, however, the Court of Session on 16th May, 1979 while upholding the conviction, reduced the sentence of imprisonment to that already undertone. Thus virtually, the appellant suffered a sentence of imprisonment of about seven Months.
2. The District Population Officer, by order, dated 26th March, 1980 terminated the services of the appellant retrospectively, with effect from 18th June, 1977 i,e, the date of suspension, on the ground of his conviction and his sentence. His departmental appeal having been rejected, the appellant has invoked the jurisdiction of this Tribunal by way of appeal under section 4 of the Service Tribunals Act (LXX of 1973).
3. The learned counsel for respondent-department, at the very outset, raised a preliminary objection that when on 26th March, 1980 the appellant's services were terminated, he was not a civil servant, and as such, be cannot invoke the jurisdiction of this Tribunal. Similar objection had been raised in numerous cases, which we have already decided. The services of the employees of the defunct-Population Planning Council/ Board were government aliased, with effect from 30th April, 1917 and we have consistently held that from that date, every employee of the said Council or Board became a civil servant. Reference in this respect may be made to the case of Riaz Ahmad Baig v. Secretary, Population Planning Division, Islamabad and 2 others .
4. The learned counsel for the appellant has argued that no opportunity was given to the appellant to explain his position before the departmental authorities and that he has been condemned unheard. It was also argued that the order of termination of service is patently illegal, inasmuch as it was intended to have retrospective operation which is not authorised by law.
5. As far as the order of termination being retrospective is concerned, the learned counsel for respondent-Department reluctantly conceded that it could not be so passed, be argued that despite the illegality in the order, the appellant cannot be re-instated into service and that this Tribunal can only alter the date of termination of service, so as to make it effective from the date of passing the order of termination, i,e, 26th March, 1980. According to him, it was only a technical defect and can be corrected.
6. With regard to the second objection, the learned counsel for respondent-Department has argued that the appellant having been convicted by a Court of law, it was not necessary to give him opportunity of being heard. According to him, where a civil servant is convicted by a Court with punishment of imprisonment or fine, action against him terminating his services without giving him show-cause notice, can be taken as the relevant rules do require the giving of any such notice. It was also urged that the appellant was duly heard by a Court of law and the conviction was based on evidence recorded in his presence, which proved his guilt beyond reasonable doubt.
7. No doubt, the fact that the appellant was guilty of offence for which he was convicted and sentenced, stands established and is not open to challenge, nevertheless, it cannot be said that the appellant's conviction automatically brings to end his service as well. Clause (a) of rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1973, provides that where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to sentence of fine or imprisonment, rule 5 ibid relating to inquiry shall not apply. We are, however, of the opinion that provision in clause (a) of rule 8. Ibid in-so far as it dispenses with the requirement of show cause is ultra vires the rule-making power of the Government as it violates the principle of natural justice that no one shall be condemned unheard. This rule has., to be read in every enactment even though such a provision does not form' part of the law itself, and we see no reason, why even in the absence of provision of right of hearing, we should not read that every person who is to be condemned should be heard before action is taken against him. It is the law- maker alone and by the word law-maker', we mean the Parliament or the person exercising the power of the Parliament, that can take away the right of a person of being heard. Unless the Parliament or the person exercising the power of the Parliament so provides, the rules, made under the law cannot deprive a person of being heard before an adverse action is taken against him. This principle was considered by the Supreme Court in the case of Sh. Abdur Rah nan, Advocate v. The Collector and Deputy Commissioner and it was observed that the Government cannot by framing a rule, take away the right to show cause which a person has on account of principle of natural justice. The right, it was further observed, could have been taken away by the provision in the law itself, but if the law does not take away such a right, then the rule-making authority cannot take it away. Since the Civil Servants Act (LXXI of 1973) does not provide that right of hearing before an adverse order is passed against a civil servant can be taken away by the rules made under the Act, rule 8 (a) ibid shall not be read so as to take away that right of natural justice, requiring that no person shall be condemned without giving opportunity of being heard. Even the language of rule 8
(a) ibid does not contemplate that any person who has been sentenced to pay fine or to undergo imprisonment shall have to be removed from service or reduced in rank. Every case has to be examined on its own merits and the authority making the order is expected to take into consideration the nature of the offence, its severity and the circumstances under which it was1 2 committed. The order of termination of service of the appellant in this case being made without taking into consideration the facts and circumstances of the appellant's offence and without giving the appellant opportunity of being heard, which, as already stated, is a right which cannot be taken away by the rule-making authority, is patently illegal and without jurisdiction, and we have no hesitation in setting it aside.
8. The result is that this appeal is accepted, the order of termination of service of the appellant is set aside and he is re-instated into service, with effect from the date his services were terminated.
The departmental authorities, however, are at liberty to proceed afresh against the appellant by giving him opportunity of being heard and of explaining his position. If no such proceedings are initiated afresh against the appellant, then he shall be entitled to consequential benefits of re- instatement-the period in which he remained in prison to be treated as period spent on extraordinary leave without pay. If, however, the departmental authorities proceed afresh against the appellant, then it is for them to pass such orders as they deem fit with regard to the period the appellant did not actually perform his duties. 1983 PLC (C.S.) 536 PLD 1964 SC 461 .