S. ABDUL JABBAR KHAN (CHAIRMAN). --Sh. Arshad Hussain, ex-Excise and Taxation Officer has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, against the order of the respondent, dated 30-4-1984, dismissing the appellant from service, while he was serving as Excise and Taxation Officer. He has impleaded the Province of the Punjab through the Secretary, Excise and Taxation Department, Government of the Punjab, Lahore, as respondent.
2. By virtue of this appeal it has been prayed that the order of dismissal of the appellant be declared null and void and of no legal effect and the appellant be re-instated in service with all back benefits.
3. Brief facts of the case are that vide letter of Finance Minister, dated 25-4-1983, the Department was informed that he has received several complaints against the appellant of corruption and misconduct and the Secretary, Excise and Taxation was asked to initiate proceeding against him under the Punjab Civil Servants (Efficiency and Discipline) Rules,1975. Charge-sheet was served upon the appellant in compliance of the said order of the Finance Minister by Mr. Ghayyur Ahmad Qureshi, Director-General, Excise and Taxation, Punjab, Lahore acting as Authorised Officer in the case of the appellant. The appellant submitted his reply to the same. The reply of the appellant was considered unsatisfactory and Mr.Anwar Shariq, O.S.D., was appointed as Enquiry Officer to enquire into the charges as set forth in the charge-sheet served on the appellant. An elaborate enquiry was held into the matter. The Enquiry Officer vide his enquiry report, dated 7-12-1983, found that all the charges against the accused stood proved beyond doubt and with these observations he forwarded the Inquiry Report to the Authority. The Authority was of the opinion that all the charges were of serious nature and called for major punishment, therefore, he imposed penalty of dismissal from service upon the appellant. The appellant was therefore, dismissed from service vide his order dated 30-4-1984. He filed a review petition under Rule 16 of the Efficiency and Discipline Rules, 1975, against the aforesaid order before the Secretary, Excise and Taxation Department, Government of the Punjab, which was considered by the Authority and appellant was informed vide letter dated 19-9-1984, that his review petition has been considered and rejected.
Hence this appeal.
4. This case of the appellant was admitted to regular hearing and comments of the respondent were received. During the pendency of the appeal and before the arguments on behalf of the appellant were concluded, the Secretary, Government of the Punjab, Excise and Taxation Department vide his letter, dated 23-9-1984, rescinded his earlier order, on the ground that as the mandatory requirements of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, were not fulfilled, the order stood rescinded and the appellant was re-instated in service. However, it was observed in the same order that if considered necessary the action will be taken after fulfilling the requirements of the said Efficiency and Discipline Rules which hitherto have remained uncomplied.
Before the appeal could be disposed of on this score, as infructuous Mr.M.A.Rehman's, learned counsel for the appellant submitted that the appeal be decided on merits as the appellant had a right that his appeal be heard on merits and pronouncement be made with regard to the validity of enquiry proceedings, his claim that he was not corrupt and other legal defects which had so occurred during the course of said enquiry against the appellant. Learned counsel for the appellant also challenged the language of the order by which the earlier order has been rescinded, which according to him was conditional, thus not a valid order. According to him the jurisdiction on this Tribunal was conferred by law under section 4 of the Punjab Service Tribunal Act, 1974, which confer a right upon the civil servant to invoke the aid of this Tribunal against any final order whether original or appellate, made by the departmental authority in respect of any of the terms and conditions of his service. This Tribunal vide its order, dated 24-12-1984, called upon the learned counsel for the appellant as well as the learned District Attorney alongwith Malik Azam Rasool who was also representing the Department to address their arguments on the issue "one an order of dismissal has been rescinded by the authority, whether the case would continue before this Tribunal or not.
5. Learned counsel for the appellant addressed lengthy arguments in this behalf and placed reliance on Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104, Shahbaz v. Crown PLD 1956 FC 46 and Muhammad Aslam Khakhi v. Vice-Chairman, D.I. Khan PLD 1980 Pesh.
128. According to the learned counsel for the appellant once a decisive order had been passed by an authority, it could not rescind the same, as it had attained finality. It was further submitted that once certain vested rights had accrued in favour of certain persons, the same could not be taken away from him on the principle of locus poenitentiae and animus revertendi. It was further elaborated that the order by which earlier order has been rescinded was a conditional order and in this manner the sword of Damocles will remain hanging on the head of the appellant as there was indication that the matter would be reopened against him on the will of the authority.
6. On the other hand learned District Attorney as well as Malik Azam Rasool, Advocate for the respondent, submitted that the order was legal in view of the powers conferred upon the Authority under section 21 of the General Clauses Act which laid down that an Authority which could pass the order also could rescind the same, therefore, no exception could be taken to it. With regard to the quality of the order it was submitted that whatever be the quality of such order, the order still be a valid order, and could not be stuck down as void. It was further pointed out that in the present case the appellant has accepted the order by which the earlier order of dismissal has been rescinded and has taken over as Excise and Taxation Officer at Muzaffargarh, where he is working at present in the said capacity and drawing salary etc. Learned District Attorney has relied on 1985 SCMR 63, ruling of the Supreme Court of Pakistan.
7. We have given our anxious thought to the arguments advanced by the parties on the issue so before us and would first of all refer to the laws cited in this behalf by the learned counsel for the appellant, on which they have so relied. In all these cases so cited before us, what we find is that their Lordships of the Supreme Court of Pakistan as well as the High Court came to the conclusion that once a beneficial order has been passed in favour of a person, a vested right stood created in his favour and the same could not be taken away from him on the principle of locus poenitentiae.
What we find is that in the present case, no vested right has been created in favour of the appellant, as he stood dismissed from service and has now been re-instated by the second order, therefore, the law so laid down before us would not be applicable in his case. Moreover, in this case the appellant himself has accepted the order which was in his favour and has taken over as Excise and Taxation Officer at Muzaffargarh, where he is working as such.
8. We have carefully perused the latest pronouncement of their Lordships of the Supreme Court of Pakistan cited as 1985 SCMR 63 and find that the same is fully applicable to the facts of the present case. In the said case an order of removal from service, was recalled when the case was pending before the Federal Service Tribunal. The Federal Service Tribunal dismissed the appeal as infructuous and the said civil servant was re-instated in service. Aggrieved against that order the said civil servant went before the High Court in which he made grievance that although he had been re-instated in service yet no further enquiry was called for as the order of withdrawal was unequivocal, his case was dismissed in limine for lack of jurisdiction. He went before the Supreme Court of Pakistan and their Lordships of the Supreme Court of Pakistan also upheld the judgment of Federal Service Tribunal on the point that once an order has been recalled the appeal would become infructuous.
9. In the light of the above we do not find that the order of rescission by the Secretary, Excise and Taxation (Authority) in any way, has taken away any vested right, what was so created in favour of the appellant. However, we feel that order of rescission is not happily worded by placing "if" and "but", in the same, as the Government is always within its prerogative to proceed against a civil servant when it so desires on the material so placed against him, before it. However, the order as it is, cannot be declared void.
10. The result is that we dispose of the appeal so before us, as infructuous. However, there will be no order as to costs.
A. A.