1. MUNAWAR ALI KHAN (CHAIRMAN).--This appeal is directed against the order of the Deputy Director, Food, Karachi, dated 13th April, 1980 whereby the appellant who was then working as Assistant Ward Rationing Officer was dismissed from service retrospectively with effect from 18-3- 1980. It is clear from the said order that the appellant's dismiss was the result of his conviction by Summary Military Court. The order further shows that the appellant was sentenced for R.I. For one year and fine of Rs.10,000 to be recovered as arrears of land revenue in case of default in payment thereof.
2. The learned counsel for the appellant in course of his arguments invited our attention to the order of D.M.L.A Karachi, dated 28-2-1985. This is a short order which is reproduced as under: "Deputy Martial Law Administrator Section-1, in the exercise of his powers as authorised under the law has set aside the conviction in respect of ex-A.W.R.O. Syed Asghar Ali Wasti to re-instate him in the service with effect from the date of arrest."
3. On the basis of above order the learned counsel urged that since the conviction of the appellant which was the basis of his dismissal from service has been set aside by the D.M.L.A as referred to above, the dismissal of the appellant has also become ineffective and consequently, he has to be re-instated in service.
4. On perusal of the written statement filed on behalf of the official respondents, it is found that the stand taken by the Government is that the order reproduced above, was examined both in the Law Department as well as in the S&GAD who were of the view that the said order can be treated as order remitting the sentence and beyond that the order has no force and cannot be implemented.
5. It is further averred in para. 12 of the written statement that the order of D.M.L.A. Re-instating the appellant in service is not legally tenable in view of the fact that he was not empowered to override the order of M.L.A. Zone 'C' passed earlier whereby the petition of the appellant for re-instatement was rejected.
6. We have given our best thought to the arguments advanced by both the sides. There in no doubt that the D.M.L.A had decided the appeal of the appellant against his conviction and sentence passed by the Military Court. It is not disputed that his appeal was partly accepted inasmuch as that while maintaining the conviction, the sentence awarded to the accused was modified. As for sentence of imprisonment it was reduced to the one the appellant had already undergone and the sentence of fine was reduced from Rs.10,000 to Rs.5,000. Thereafter, the appellant made a mercy petition to the Martial Law Administrator Zone C, who accepting his petition remitted the remaining amount of fine. As the appellant was not being re-instated in service he made representation to the C.M.L.A., which was forwarded to the D.M.L.A for consideration. It seems that on consideration of that representation the D.M.L.A. Reviewed his earlier order of having accepted the appellant's appeal partly as referred to above and passed the order, dated 28-2-1985, which has been reproduced above and has now been relied upon by the appellant.
7. The question arises, if the D.M.L.A. Had the requisite power of reviewing his earlier order partly allowing the appeal of the appellant. We are of the view that this tribunal cannot go into the legality of this order as the orders passed by the Military Authorities including the D.M.L.A. Are immune from scrutiny by the Courts including the Tribunal. Therefore, we will take this order as it is.
8. It appears to us that this order consists of two parts: one relating to setting aside the conviction passed against the appellant and another with regard to his reinstatement in service. So far first part is concerned we have no power to question its correctness. However, we are inclined to agree with the view expressed by the Law Department and S&GAD of Government of Sind that the power of ordering re-instatement of the appellant did not fall within the domain of powers vested in the D.M.L. A. And as such that part of his order was not binding on the Government.
9. Having arrived at the above conclusion it is to be considered whether in view of appellant's conviction having been set aside he is entitled to be re-instated in service. As stated above his conviction was the sole basis for his dismissal from service. Since the conviction has been set aside, it would be difficult to sustain his dismissal. Accordingly we have no alternative but to hold that the appellant's conviction on which his dismissal was founded has disappeared, his dismissal too has got to be revoked and in consequence, he is to be reinstated in service.
10. For above reasons appeal is allowed and the impugned order of dismissal of the appellant is set aside. However, there will be no order as to costs.
11. M.Y.H./97/Lb/S