SARDAR ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Maqbool Ahmad, Muhammad Hussain, and Noor Alam, all former .Sub-Divisional Officers of the Irrigation and Power. Department, Punjab and Messrs Abdul Ghafoor Gill, Ch. Mohammad Yasin, Mirza Mohammad Yasin, Bashir Ahmad, Muhammad Rashid, Mohammad Rafiq, Mohammad Siddique and Ikramul Haq Siddiqi, all ex-Sub- Engineers of the same Department have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, whereby they have impugned orders, dated 18-9-1985, passed by the Secretary to Government of the Punjab, Irrigation and Power Department, Punjab, in the case of the above- named three Sub-Divisional Officers and orders, dated 14-9-1985, passed by the senior most Staff Officer, Office of the Chief Engineer, Sargodha, in the case of above-named eight Sub-Engineers.
Messrs Maqbool Ahmad, Mohammad Hussain and Noor Alam, have impleaded the Secretary Government of the Punjab, Irrigation and Power Department, Lahore; whereas Messrs Abdul Ghafoor Gill, Ch. Mohammad Yasin, Mirza Mohammad Yasin, Bashir Ahmad, Mohammad Rashid, Mohammad Rafiq, Mohammad Siddique and Ikramul Haq Siddiqi, have impleaded the Government of the Punjab through its Secretary Irrigation and Power Punjab, Lahore, Chief Engineer Irrigation, Sargodha Zone, Sargodha and senior most Staff Officer, Office of the Chief Engineer, Irrigation, Sargodha Zone, Sargodha, as respondents.
2. As all these appeals contain common questions of law and facts, therefore, we will dispose of all these appeals with our this single judgment.
3. Brief facts of the cases are that on 29-8-1978, a case under sections 409/420/467/468/471, P.P.C.
And 5(2) of Prevention of Corruption Act. 1947, was registered at the Police Station, A.C.E, Sargodha, against 45 officers /officials of SCARP II Circle, Sargodha including the appellants. The relevant period during which the alleged offences were committed was taken from 1-2-1975 to 18-9-1977.
The appellants were jointly tried by the Special Military Court No.2, Sargodha, in the year 1980-81.
The sentence was passed on 10-2-1981. Out of 45 officers /officials, 24 were convicted and sentenced to various terms of imprisonment ranging from 1 year to 11 years' R.I. And fine of Rs.20,000 to Rs.50,000. All the appellants were acquitted of the charge under section 409/420!467/471, P.P.C.
And section 5(2) of the Prevention of Corruption Act, 1947.
4. Although the trial was held jointly by the Special Military Court No.2, Sargodha, but the warrants of commitment were signed by Special Military Court No.18, Sargodha on 27-5-1984. In the second paragraph of warrant of commitment it was specifcally mentioned that Special Military Court passed the sentence upon the accused on 10th day of February, 1981. This warrant of commitment was perfectly in accordance with the mandatory provisions of sections 135 and 136 of the Pakistan Army Act. In all the cases the sentence was passed by the Special Military Court on 10-2-1981, whereas after confirmation the Judgment was announced on 27-5-1984. Therefore, on 27-5-1984, when the judgment was announced it is claimed that the sentence had become infructuous as the same was to be reckoned to commence on the day when the original proceedings were signed by the President of the Court and the sentence had been passed In view of such a legal situation, though the appellants were technically awarded sentence of one year R.I. Yet they did not serve single day.
5. That on 30-7-1985, in the case of Sub-Divisional Officers and on 18-8-1985, in the case of Sub- Engineers, show-cause notices were issued under amended Rule 9 of the Punjab Civil Servants (E&D) Rules, 1975 to which all the appellants submitted their replies. However, in the case of Noor Alam, S.D.O. (Appeal No. 689 of 1985), it was submitted in the grounds of appeal as well as in the arguments that no show-cause notice was served upon him. All the appellants were removed from service under amended Rule 9 ibid. They filed Review Petitions and appeals, as the case may be, but since no final order was passed they filed the present appeals on the expiry of period of 90 days.
6. That the learned counsel for all the appellants have raised the following points:-
(1) As the sentence was awarded to all the appellants on 10-2-1981, rule 9 of E&D Rules was in existence on that date was relevant for the purpose of the action in their cases.
(2) Sentence in all the cases was passed on 10-2-1981, by the Special Military Court, therefore, if there was any legal justification for taking departmental proceedings against them then such proceedings could be held under rule 9 of the Punjab Civil Servants (E&D), 1975, hereinafter called as "old rule", as it existed on 10-2-1981 and not amended Rule 9, hereinafter called as "amended rule" which was introduced on 1-4-1982.
(3) If the old rule was applied in their case then no disciplinary proceedings against them were justified as the said rule does not bestow power upon the respondent Government but it takes away power of the authorities in such cases. The learned counsel has relied on Azam Khalil v.
Secretary to Government of the Punjab 1982 PLC (C.S.) 140 and Abdul Hafeez v. Secretary to Government of the Punjab, C & W Department 1984 PLC (C.S.) 857.
(4) The conviction and sentence as contemplated under old as well as amended rule is the conviction and sentence awarded by a Court of law but Special Military Courts or the Summary Military Courts are not "Courts of Law". For that reason also E&D Rules are not at all applicable in this case.
(5) Old rule contemplated 'the grounds of conduct' which led to a sentence of fine or imprisonment which are not existent in the present case, as Special Military Court did not write any judgment.
(6) Even if it is assumed without conceding that amended Rule 9 was applicable in that case also the entire proceedings stand vitiated due to violation of Rule 2(2) of the E&D Rules, 1975.
7. Learned counsel for the appellants have addressed lengthy arguments on all the points particularly on points (1), (2) and (3). The main emphasis of the learned counsel for the appellants is that according to the warrant of commitment issued in the case of all the appellants under section 136 of Pakistan Army Act, it was specifically ordered that "the sentence will take effect from 10-?-1981" . It was further provided in the same warrant of commitment that. "And whereas Special Military Court No.2, Sargodha, on the 10th day of February, 1981, passed the following sentence upon Mr ---------------..SDO that is---------------. It was, therefore, argued that since conviction was ordered to take effect from 10-2-1981, the state of departmental rules as it existed on that date will decide the fate of the appellants and not the state rules which was subsequently introduced by way of amendment. For this general proposition of law the learned counsel have relied upon PLD 1964 SC 226, PLD 1969 SC 187, PLD 1984 Pesh. 188 and PLD 1984 Pesh.
139. It has further been argued that if the state of E&D Rules, 1975, as it existed on 10-2-1981, is taken into consideration then no action was warranted against them under old Rule 9. For this, they had relied upon the two decisions of this Tribunal as referred to above.
8. As regards point No.6, it has been argued by the learned counsel for the appellants that according to Rule 2(2) of Punjab Civil Servants (E&D) Rules, 1975, if joint disciplinary proceedings are held against more than one civil servants, then the Authority or the Authorised Officer in the case of senior civil servants will be the authority for all such civil servants. It has been submitted that Mr. Usman Akram, Executive Engineer in Grade-18, was also proceeded against alongwith the present appellants by the Chief Secretary--Authority in the case of Grade-18 Officers. They have contended that Chief Secretary was, under Rule 2(2) ibid, deemed to be the Authority in the case of all the appellants and the proceedings taken and impugned orders passed against them by the lower authority viz. Secretary, Irrigation Department and. The senior most Staff Officer were therefore, incompetent.
9. It is further contended on behalf of appellants that keeping in view the peculiar facts and circumstances there is no element of fraud because the appellants have been acquitted of the offence under section 420, P.P.C.; there is no element of forging a document which purport to be a valuable security as the appellants have been acquitted of section 467, P.P.C. There is no element of using fraudulently and dishonestly any document as genuine which they had reasons to believe to be forged document as they have been acquitted of an offence under section 471, P.P.C. There is no charge of misusing or abusing their official position as public servants since they have been acquitted of the charge under section 5(2) of Prevention of Corruption Act, 1947, therefore, there was no material whatsoever on record before the Secretary, Irrigation and Power Department and the senior most Staff Officer, Sargodha, to justify action against the appellants.
10. Learned District Attorney has, without controverting the general proposition of law, raised by the learned counsel for the appellants had argued that action against all the appellants, was justified in view of the stand taken by the Department in the written comments in all the cases.
11. We have given our anxious thought to the arguments of the parties on all the points raised before us. The main issue involved in the case is whether old Rule 9 or amended Rule 9 is applicable in the present case. Both the old and amended Rules 9 are quoted below:- OLD RULE 9: "9. Rules not to apply in certain cases--Nothing in these rules shall apply to a case --
(a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment; or
(b) where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
AMENDED RULE 9: Certain rules not to apply in certain cases-- (1) Where a civil servant is convicted of an offence involving moral turpitude which has led to a sentence of fine or imprisonment, he may, after being given a show-cause notice be dismissed, removed from service or reduced in rank without following the procedure laid down in Rules 5, 6, 7 and 8.
Distinction between the old and amended Rule 9 is quite obvious. Whereas old Rule 9 altogether eliminates the application of entire E&D Rules and immunes convicted persons from action under E&D Rules, amended Rule A 9 only excludes the application of part of E&D Rules but does not immune the convicted persons from dismissal, removal or reduction in rank.
12. Therefore, in order to settle this controversy we proceed to decide point No.(1) in the first instance. We have perused with due care and respect the authorities cited by the learned counsel for the appellants i.e. PLD 1964 SC 266, PLD 1969 SC 187, PLD 1984 Pesh. 188 and PLD 1984 Pesh.
139. We quote with advantage relevant portions from the judgments as these judgments and particularly the under-quoted portions have a direct bearing on the general question of law involved in this case: - Saeed Ahmad v. State PLD 1964 SC 266.-- So far as the other question is concerned; namely, as to whether the incorporation of section 165/B in the Pakistan Penal Code, during the pendency of the appeal in the High Court, made the immunity given by that section available to the appellant; I also agree that the guilt of the appellant had to be determined according to the State of the law prevailing at the time the crime, alleged in the present case against the appellant, was committed, namely, the 11th of June, 1956.
As to the applicability of a statute which is enacted after the coming into existence of the acts of events, the legal effects, which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes out into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948, according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights one vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned."
PLD 1969 SC 187 The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving (1) is that "if the matter in question be a matter of procedure only". The provisions would be retrospective "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retrospective effect.
To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (2), where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any rights of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."
13. In view of the settled law as quoted above, we hold that the rights and liabilities of the appellants have to be determined according to the state of E & D Rules, which prevailed at the time when they committed the acts in question 'for which they were convicted i.e. During the period from 1975 to 1977, and at the most on the date when they were convicted by the Special Military Court i.e. The 10-2-1981. Therefore, respectfully following the law laid down in the above authorities, we hold that old Rule 9 as it existed on 10-2-1981 and not the amended Rule 9, which was introduced on 1-4-1982, will decide the fate of all the appellants.
14. Having decided the above issue, we may now proceed to examine the cases of appellants under old Rule 9 which is quoted in para. 12 above. In so far as this rule is concerned the text of the rule itself is very clear that "nothing in these rules" shall apply to the case of persons convicted by Courts. This point came up for our consideration earlier in the cases of Azam Khalil and Abdul Hafeez 1982 PLC (C.S.) 140, 1984 PLC (C.S.) 857, respectively. After examining old Rule 9 in detail we held as follows:- "(5). We have given our anxious thought to the arguments of both the parties. We are inclined to accept the contention of the appellants that in these cases Rule 9 ousted the jurisdiction of the departmental authorities in such cases. This point has fully been examined and settled by us in the aforesaid case of Azam Khalil and relevant portion of the said judgment is quoted below:- "We have given our anxious thought to all the points raised by both the parties and would first of all reproduce Rule 9 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which is the bone of contention before us:- "9. Rules not to apply in certain cases.-- Nothing in these rules shall apply to a case--
(a) where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or of imprisonment or
(b) where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
15. In the Punjab Civil Servants (E&D) Rules, 1975, Rule 9 finds into place under Chapter III which lays down procedure for enquiry and imposition of penalties. Rules 5, 6 and 7 relate to the proceedings and Rule 8 relates to the action to be taken by the authority after affording the accused officer an opportunity in person by the authority. It is interesting to observe that while framing Rule 9 the framers of 1975 Rules have intended to omit the application of Rules 5, 6 and 7 to a case of the present nature before us. Instead of doing so, they used the words "nothing in these rules shall apply. This is the omission which, inter alia, goes directly to the root of the present case. Rules 5, 6 and 7 are the only enabling rules which bestow powers and by saying that nothing in these rules shall apply to a case of the present nature, the framers of these rules instead of bestowing the powers have withdrawn the same. While reading the West Pakistan (E&D) Rules, 1960, we find that this power is very much there. So in view of this defective phraseology, we have no alternative but to hold that Rule 9 did not bestow any power on respondent No.2 to take any action against the appellant. It would be for the Government to amend the rule, if it so desires."
"(6) In view of the above discussion, we reiterate and reaffirm our above quoted previous view on this point and hold that the order passed by the Government in purported (letter) exercise of Rule 9 was totally without jurisdiction. We may point on here that in paragraph 4 of the parawise comments, the Government has confirmed that the order was passed under Rule 9 ibid."
We therefore, reiterate and reaffirm our earlier view in this case as well and uphold the contention of the learned counsel for the appellants that the appellants had acquired a vested right under old Rule 9 that nothing in E&D Rules, 1975, would be applicable in these cases. Such a right could not be subsequently taken away by the Departmental Authorities concerned in the exercise of their executive powers on the basis of the amendment in Rule 9 which was enforced w.e.f. 1-4-1982.
Since we have already reached the conclusion that amended Rule 9 was not applicable in the case of present appellants the impugned orders passed by the respondents under amended Rule 9 were not legal and valid.
16. With regard to the points (4) and (5) raised by the learned counsel for the appellants these also stand settled by us in the case of Azam Khalil. We refer to para. 6 of the Judgment in that case and reproduced the relevant portion from that judgment:- "(6) We also find great force in the argument of learned counsel for the appellant that Rule 9, as it is, creates one more impediment in the way of respondent No.2 while taking action under this rule against the appellant. The words 'on the ground of conduct which has led to a sentence of fine or imprisonment' makes it obligatory to find, before taking any action against a person convicted by a Court of Law as to what were the grounds which led to his conviction when he was proved guilty.
In the present case the perusal of the order of the Summary Military Court would show that no ground whatsoever has been given to justify the sentence so awarded by it. It only says that Mr. Azam Khalil of House No. 20, Gali No. 137, Nisbet Road, Lahore, to undergo R.I. For four months. In this manner the impugned order suffers from another fatal defect. While adverting to another important point raised by the learned counsel for the appellant, that the Summary Military Court cannot be equated with a Court of Law as is evident from letter No. SOR-I(S&GAD)1-71/74, dated 26th June, 1975, from the Government of the Punjab, S&GA Department, we find that the words used in paragraph 3 are "in a Court of Law". Therefore, the Summary Military Court cannot be equated with a Court of Law as the same being established under the Martial Law will definitely be of a different kind than the Court of Law as understood in legal parlance.
17. We have also given our anxious to the point No. (6) raised by the appellants which deals with the violation of Rule 2(2) of the E&D Rules, 1975, and find that the assertion made by the learned counsel for the appellants is factually true as the record of this case reveals that Usman Akram also jointly proceeded with the S.D.Os. And Overseers (Sub-Engineers) and was also co-accused.
He was co-accused in criminal case also. According to Rule 2(2) of the E&D Rules, when the proceedings are joint, the Authority in the case of senior most officer will only be authorised to proceed against all the persons so involved in the said preceedings. In the present case, the Authority in the case of Mohammad Usman Akram was learned Chief Secretary, therefore, the pronouncement of the judgment in case of the appellants by the Secretary, Irrigation and Power Department in the case of S.D.Os. And senior most Officer in the case of Sub-Engineers, would be in complete violation of Rule 2(2) of the Efficiency and Discipline Rules, 1975.
18. In view of the above and the law so laid down and reproduced in the proceeding paragraphs the impugned orders passed against the appellants are set aside, as being without lawful authority. The appeals are accepted. Appellants would be considered to be in service from the date of their removal. However, the period during which they remained out of service, will be treated as extraordinary leave without pay. There will be no order as to costs.
M. Y. H.
Appeals accepted