1. MANZOORUL HAQ EFFENDI, (MEMBER).--This appeal is directed against the order of Respondent No. 1 dated 12th February, 1985 to the extent of treating the period during which the Appellant remained out of service on 26-12-1978 till 11-2-1985 as Extraordinary Leave without pay. '
2. Facts, constituting the background of the case, briefly stated are that while Appellant was serving as S.D.O. Field Irrigation Sub---Division No.1, Barrage Colony, Hyderabad, he lodged a complaint with Superintendent of Police, Anti-Corruption Hyderabad on 17-3-1978 that his Senior Clerk Mr. M. A . Majeed had misappropriated Government funds by committing forgery by manipulation of a cheque. The amount of Rs.850/- was manipulated and transformed into Rs.2,20,850/-, thus resulting in misappropriation of Rs.2,20,000/-. A case was registered as Crime No.23 of 1985 under section 409 P.P.C. Read with section 5(2) of the Act II of 1947. The case was subsequently challaned in the Summary Military Court, Hyderabad and the appellant was also cited as co-accused. The Summary Military Court No.2, Hyderabad, convicted the Appellant and sentenced him to undergo one year's R.I. On 26-12-1978. He under-went full term of sentence awarded to him.
2. Thereafter, D.M.L.A. (Hyderabad) set aside the conviction of the appellant and informed Respondent No.1 that his headquarters had no if the Appellant was reinstated in service with retrospective effect, including pay and allowance, if permitted under the rules of services, vide their letter No.SL/P-77/162/A Hyd. Dated 26-5-1982. It seems that Respondent No.1 sought clarification from D.M.L.A. Was again vide their letter No.ML/P-77/162/A/Hyd. Dated 10-8-1982 communicated that the accused was not found guilty and acquitted honourably. Hence entitled to be reinstated in service and all benefits thereof with retrospective effect under the rules of the service of the Department. Thereafter, the Respondent No.1 issued Notification on 12-2-1985 which is reproduced as below:- "Consequent upon the setting aside by the competent authority of the orders of his conviction, the Martial Law Administrator, Zone 'C' is pleased to reinstate into service Mr. Isardas Assistant Executive Engineer (Civil) in B-17 with immediate effect.
2. On his reinstatement in service, Mr.Isardas is posted as Assistant Executive Engineer (Civil) in Development Region Hyderabad. His further Posting orders will be issued by the Chief Engineer, Irrigation Development Region Hyderabad.
3. The period from 26th December, 1978 to the date on which he resumes duty. During which Mr.Isardas remained out of service, is treated as extraordinary leave without pay ''
3. Consequently the Appellant preferred appeals to the Respondent No.2 and the Martial Law Administrator Zone 'C' respectively on 7-3-1985 and 16-6-1985 and each time he was informed, by his department that S&GA Department to whom his appeals were forwarded had informed that "while approving his reinstatement, the M.L.A. Zone 'C' had ordered that the period which he remained out of service will be treated as extraordinary leave without pay. The appeals in question have, therefore, been filed".
4. Thereafter, the Appellant has agitated before the Tribunal under section 4 of Sind Service Tribunal Act, 1973. The facts of the case are not controverted.
5. This appeal came up before Single Bench on 25-3-1987 and was partly heard. Finally it was heard by Full Bench on 6-5-1987.
6. We have heard, the arguments of both the learned counsels.
7. The Counsel for the Appellant has mainly relied on the argument that since the appellant was found not guilty and honourably acquitted by the Competent Authority and consequently since the mandatory provisions of Rule 152-A, Sind Civil Service Rules Manual Vol. I the Appellant was entitled to all consequential benefits.
8. The relevant Provision of Rule 152(a) Vol. I of S.C.S.R. Is produced as below: "When a Government servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant him for the period of his absence from duty.
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension:"
9. The case of the appellant is that the Respondent No.1 after lapse of nearly three years issued the order of reinstatement of the appellant on 12th February, 1985. Further, the Counsel for the Appellant urges that the Respondent No.1 was not entitled to take a decision under Rule 152 S.C.S.R. Manual Vol. I as the Respondent No.1 is the Competent Authority and the Respondent No.2 is the Appellant Authority. Under the Rule 152 of S.C.S.R. The original authority to pass orders in respect of the period of absence on account of suspension /conviction etc. Being the Appellate Authority it required original decision from Respondent No.2.
10. Since the Respondent No.1 was not Competent to pass any orders under the Provision of Rule 152, Sind Civil Service Rules Vol I, as such the order passed by Respondent No.1 is without jurisdiction.
11. Further the Counsel for the Appellant maintained that the Respondent failed to take into consideration the fact that by no provision of Rule, Law or any Martial Law or Regulation the question under-lying Rule 152(a) S.C. S.R. Fell within the purview of jurisdiction of Martial Law Authorities or Martial Law Administrator Zone 'C'.
12. While on the other hand the Counsel for the Official Respondents relies on the averments stated in written statement and in the instant case the order of conviction had been M.L.A. Zone 'C' and it is he who ordered that the period during which the appellant remained out of service should be extraordinary leave without pay. He produced a copy of a Summary submitted to the then MLA Zone 'C'/Governor in 11-12-1984, He also argues that under rule 10(1) of the Sind Civil Servants (E&D) Rules, 1973 there shall be no appeal where the penalty is imposed by an order of the Chief Minister.
13. The Official Respondents contend that, that office was Held by the MLA at that time. They also raised a plea that in case of the Government servants retired under MLR 114 and reinstated under MLO 23, Government servants were not allowed arrears of pay and allowances for the period they remained out of service as it would involve unnecessary financial burden on the exchequer as actually they did not work for the period they remained out of service. The case of the Appellant is of similar nature and thus he is not entitled to pay and allowances for the period he remained out of service. This argument does not appear to be correct as the case of the appellant is not covered under MLR 114 as he was tried by Summary Military Court on charges of misappropriation of Government funds. The appellant was not an ad hoc appointee whose case was to be regularized as such this arguments does not Held good.
14. The then MLA Zone 'C' was the Governor/Chief Minister as well. The perusal of the record transpires that the order of the appellant for reinstatement in service were approved by the MLA and it was under his order that the period for which the appellant was out of service has been treated as extraordinary leave without pay. The DMLA, Hyd. Was only competent to set aside the conviction of the Summary Military Court as its appellate authority. The appellant Lt, a Grade-17 officer and as such the Minister was competent to impose major penalty upon the appellant under E & D Rules, 1973. We have considered the view point of the learned counsel for the appellant that it is mandatory provision of rule 152(a) S.C.S.R. That the appellant has to be paid the payment and allowances subsequent to his acquittal by the DMLA.
15. Section 18 (Second Proviso) of the Sind Civil Servants Act, 1973 reads as follows: "A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade: Provided further that where a civil servant has, under an order which is later set aside, been dismissed or remote from service or reduce in rank, he shall, on the setting aside of such order be entitled to such arrears of pay as the authority setting aside such order may determine.--- may determine if a civil servant is entitled to such arrears of pay.
16. We are also of the view that this Tribunal cannot go into the legality of this order as the order passed by the Military Authorities including MLA are immune from scrutiny by the Courts including the Tribunal. Therefore, we will take this order as it is (this view was taken by this Tribunal in Appeal No.36/86, Mr.Asghar Ali Wasti v. Govt, of Sind).
17. For the above reasons, appeal is disallowed and the impugned order of 12th February, 1985, is maintained however there will be no order as to costs.
18. A.Q.QAZI, (MEMBER).--I agree with conclusions.
19. A.A./133/Sr.S.