1. MUNAWAR ALI KHAN (CHAIRMAN).--This appeal is directed against the order of the Secretary to Government of Sind, Agriculture, Live Stock, Fisheries and Food Department. Dated 23rd July, 1985 whereby the appellant Rana Abdul Waheed who was Assistant Director, Fisheries was punished and minor penalty of withholding of his promotion to higher post up to 31st December, 1986 was imposed on him. Departmental appeal was filed against the said order but no decision was taken within the statutory period of 90 days and therefore, the appellant filed the present appeal before the Service Tribunal.
2. Briefly stated the appellant's case is that while he was working as Assistant Director, Fisheries, Hyderabad (Grade 17), the then Director out of personal malice, manoeuvred to get him transferred from Hyderabad alongwith the post to Larkana vide order dated 27-6-1979. In compliance of the said order the appellant relinquished the charge on 12-9-1979 but he could not move to Larkana to join at the new place of his posting because firstly necessary funds for shifting the record and establishing the new office at Larkana were not sanctioned and secondly he had chronic eye disease and his Doctor advised him to stay behind for the treatment. It appears from the Memo of his appeal that he forwarded such Medical Certificate to the authorities whereupon he was referred to Medical Superintendent Services Hospital, Hyderabad vide letter No. DFS/3274, dated 23-8-1979, which was however, not posted at his proper address at Hyderabad and was delivered to him on his own request only in May, 1980.
3. Meanwhile, the appellant has alleged, his relinquishment of the charge at Hyderabad was not accepted. He was not allowed to shift his office record and establish office at Larkana nor given clear instructions as to his posting, even after he had availed Medical leave from 13-9-1979 to 10- 10-1979 as per rule 152, Sind Service Rules, Volume-I. Instead, the appellant was placed under suspension by order dated 3-1-1980 which was followed by charge-sheet dated 13-2-1980 and statement of allegations served on the appellant. Mr. Kausar Ali Ansari, Deputy Director, Agriculture Hyderabad was appointed as Inquiry Officer by order dated 13-5-1980 to hold detailed inquiry into the charges levelled against the appellant. After holding the necessary enquiry the said Inquiry Officer submitted his report on 15-6-1980 which was, however, not acceptable to the Authority.
4. Consequently, another inquiry Officer namely Mr. Aziz Ahmed, Director Agricultural Engineering Hyderabad was appointed by order dated 10-8-1980 to make the requisite inquiry.
5. As the second inquiry was not held within the stipulated time limit of three months, the appellant requested for substituting the Inquiry Officer by some other impartial Officer. As disclosed in the Memo. Of Appeal, even the Chairman, Inquiries Anti-Corruption Wing, Government of Sind, expressed his concern over the delay in holding the inquiry in the meeting held on 29-6-1981 and made observations that it was not necessary to hold detailed inquiry as mere issuing of show- cause notice would have served the purpose. It is further alleged that subsequent to the aforesaid meeting the Inquiry Officer started the inquiry after lapse of about 11 months and after holding a brief hearing at Hyderabad on 11-7-1981, the entire inquiry was held in Karachi in the appellant's absence. The second Inquiry Officer ultimately submitted his report direct to the Authority on 27-8- 1981 whereupon the said Authority namely the Secretary, Agriculture issued order dated 8-9-1981, whereby while re-instating the appellant in service and posting him at Larkana, penalties of censure and stoppage of two annual increments were imposed upon him. However the appellant was neither heard in person nor was served with show-cause notice before imposing of the said penalties. The appellant preferred appeal against the said order and after expiry of the statutory period of 90 days he filed appeal before the Service Tribunal.
6. During the pendency of the appeal, the Assistant Advocate---General made a statement before the Tribunal that the aforesaid order imposing penalties upon the appellant had been withdrawn by order dated 17-5-1982 and as such the appeal had become infructuous. Accordingly, the Tribunal disposed the appeal as having become infructuous vide its order dated 2-6-1982. Once again the appellant was served with a fresh show-cause notice dated 5-6-1982 and after the appellant gave reply to the said show-cause notice the impugned order was passed imposing on him the penalty referred to above. The present appeal has been filed against the said impugned order.
7. We heard the arguments of the learned counsel for the parties at great length and also went through the entire written material available on record.
8. The preliminary point raised by the learned Government counsel was that since the elate (i.e. 31st December, 1986) upto which the appellant's promotion was banned had already expired, the appeal had become infructuous and, therefore, could be disposed as such.
9. The learned counsel for the appellant replied this argument contending that the penalty imposed upon the appellant obviously involved blemish against him and as such it was necessary that the appeal should be decided on merits irrespective of the expiry of the penalty period. We are inclined to agree with him also for the additional reason that A in the event of appellant's success in the appeal, he could be compensated for the period of penalty by way of pro forma promotion and consequential financial benefits, if the authorities otherwise found him fit for promotion. Therefore, we find no force in the contention of the learned Government counsel.
10. As for merits of the case, it is appellant's own admission that he did not comply with the order of his transfer from Hyderabad to Larkana, in as much as that he did not move to Larkana to assume the charge there. No doubt he has given his own reasons for his inability to go to Larkana. According to him no funds were sanctioned for shifting the record etc. To Larkana and establishing the office there and secondly as he was suffering from chronic eye-disease, his Doctor prohibited him from leaving Hyderabad before completing his treatment. Without going into truth of the appellant's above assertions, we have taken note of his further admission that he had availed medical leave from 13-9-1979 to 10-10-1979 as per rule 152 of the Sind Civil Service Rules which clearly shows that the said leave was not sanctioned to him by the competent authority. Apart from above, a lot of material has been brought to our notice from which it could be proved that the appellant had certainly disobeyed the order of his transfer from Hyderabad to Larkana.
11. But unfortunately the respondent's case leaves much to be desired from legal angle. We regret to say that the authorities concerned have entirely mishandled the case. Perhaps either through negligence or out of ignorance of the strict legal position they have left many loopholes which could be exploited to their disadvantage. We would like to concentrate only on one such flaw which in our opinion is so glaring that it could not be overlooked.
12. It was contended on behalf of the appellant that the impugned order was hit by the rule of res judicata, as the appellant was duly punished on the basis of the report of the second Enquiry Officer, fresh inquiry in respect of the same charges which again formed thel basis of the impugned order, was barred. We have given our best consideration to the above argument. In this connection we are mindful of the legal maxim; "No one can be vexed twice" for the same cause of action". The point that falls for our determination is whether this is a case of double jeopardy. On this question we may first refer to the precedent case of Muhammad Saifullah (Appeal No. 11 of 1985) decided by this Tribunal and reported as Muhammad Saifullah v. Chief Secretary, Government of Sind and 2 others 1985 PLC (C . S. ) 1108. In the above reported case it was held: "It is a principle of natural justice that nobody can be vexed twice for the same cause. Since the appellant was made to face an inquiry on the very same charges and was found not guilty and acquitted, he could not be reproceeded against in respect of these charges. Nor could the successor Chief Engineer cancel the order of acquittal, passed by his predecessor. He had no such powers of review or revision.
13. This is also known as principle of res judicata or Rule against double jeopardy".
14. Proceeding further the learned Chairman who had written the judgment in the above reported case observed as follows:-- "The same principle applies to order passed by Administrative Authority. The question is whether an Administrative Authority has the power to revoke, modify or change a decision in itself has made.
15. Section 21 of the General Clauses Act gives the executive authority power to cancel or rescind orders. But this power could be exercised only if the order which is cancelled had not been carried into effect. Since the order became operative after it was communicated to the appellant and the case was closed, it could not be withdrawn or cancelled subsequently after 3 years. As soon as the order becomes effective, it becomes irrevocable".
16. We are in full agreement with the views expressed in the above reported case. If the case in our hand is examined in the light of above authority, it is found that on completion of the second enquiry, the Enquiry Officer submitted his report and on the basis of that report the appellant was punished by order dated 8-9-1981 and two penalties: one of censure and the other of stoppage of two, annual increments were imposed on him. This order was not only communicated to the appellant but also was challenged by the latter in Service appeal before this Tribunal. It was during the pendency of the said appeal that the order of punishment referred to above was withdrawn and in consequence the appeal was dismissed as having become infructuous. Thus it would be noticed that the present case is on all fours of the above reported case. As in the reported case, so also in the present case on completion of the enquiry proceedings,. The final order was passed and was acted upon by duly communicating the same to the accused official concerned, and thereafter no power was left with the authorities concerned to reopen the case by starting fresh proceedings in respect of the same charges, as such action was barred not only by principle of res judicata (double jeopardy) but also by that of locus poenitentiae. Accordingly the impugned order which is the result of the proceedings taken in violation of above legal principles cannot be sustained. Appeal is, therefore, allowed purely on above technical ground. The parties will bear their own costs. However, we would like to clarify that this order should not be construed as tantamount to honourable acquittal of the appellant of the charges levelled against him.
17. A.E./110/Sr./S