1. ' MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal appellant, M.A. Mughni, has challenged the order of Deputy Director, Labour dated 19-74988, whereby he was informed that after consultation with S&GAD and Law Department, his appeal for reinstatement in service had been rejected.
2. ' The appellant's case as disclosed in his memo. Of appeal, is that he was working as Labour Inspector (Shops), Karachi when he was involved in a case of bribery vide FIR No,32/82 registered by the Anti-Corruption Police. After due investigation the appellant was placed on trial before the Summary Military Court No,5, Karachi and he was convicted by the said Court and sentenced to undergo R.I. For nine months and pay fine of Rs,5,000. Consequent upon his conviction he as dismissed from service by order of Director, Labour, Sind dated 25th May, 1982. The appellant preferred appeal against the order of his conviction to the DMLA Sector I, Karachi. However, the said appeal remained undecided until 29-12-1985 when the DMLA passed order setting aside his conviction. Meanwhile the appellant had served out the sentence of his imprisonment. On the basis of DMLA's order he approached the Director, Labour for reinstatement in service by making two representations; one dated 5-1-1986 and another dated 11-2-1986, but no order was passed thereon. Accordingly the appellant was constrained to take the matter to High Court in Constitution Petition No,D-280/86. The said petition was disposed of on the statement of learned AAG that the Authorities concerned had no objection to the disposal of the petition in accordance with law. In view of his statement the petition was allowed vide High Court's Judgment dated 26-4-1988 and direction was issued to the Secretary, Labour Department to dispose of the representation of the appellant within four months. Thereafter the Deputy Director, Labour passed the impugned order.
3. ' After hearing the arguments of the learned counsel for the appellant as well as the learned Government counsel the appeal was allowed by short order dated 16-1-1989 which is reproduced as under: "Appellant and his counsel Mr.Muhammad Dilsher present. Mr.Imdad Hussain Kazi, Govt. Counsel assisted by Mr.K.H.Bukhari, Deputy Director, Labour, present. Heard arguments of the learned counsel for the parties. For reasons to be recorded separately, appeal is allowed and the impugned order is set aside with no order as to costs.
4. ' Following are the reasons in support of the said short order. It goes without saying that no independent departmental proceedings were taken out against the appellant, under the Sind Civil Servants (Efficiency and Disciplinary) Rules, 1973 (hereinafter referred to as the said rules) on the charge of corruption for which he was convicted by Summary Military Court. As disclosed in the order of his dismissal dated 25th May, 1982, the Director Labour dismissed the appellant from service merely on receipt of the information about his conviction. Thus the appellant's dismissal was based entirely on his tonviction recorded by the Summary Military Court. It is not denied that his conviction was ultimately set aside by the order of DMLA dated 29-12-1985. Thereupon the appellant moved the departmental authorities for his reinstatement but they refused to take him back. As per order of the Deputy Director referred to above, his representation for reinstatement was turned down on the advice tendered by the S&GAD and Law Department. The learned Govt.
5. Counsel also defended the impugned order on the strength of the reasoning contained in the said advice.
6. ' The Law Department's advice which was made the basis of the impugned order is contained in the S&GAD's letter dated 30-6-1988 addressed to the Secretary, Labour and Cooperation Department. The relevant portion of the said letter is reproduced as under:- "Mr. M.A. Mughni was convicted by the Summary Military Court on 115-1982 to undergo R.I. For 9 months and fine of Rs,5,000. After the officer had suffered conviction and served out his sentence, the DMLA set aside the orders of conviction in favour of Mr. Mughni on 29-12-1985. The Law Department's opinion dated 3-1-1986, reveals that DMLA was not empowered to set aside the conviction. Besides, in law, there are `past and closed transactions' which can neither be reopened nor reviewed. The officers having suffered the conviction and served out their sentences cannot claim benefit of the order setting aside their conviction which is patently wrong. They would be deemed to carry the stigma of conviction. The Law Department has further held that order passed by DMLA (similar orders as passed in the case of Mr.Mughni) are unsustainable in law and there is, as such, no question of implementing them.
7. ' In view of the elaborate advice of the Law Deptt. The request of Mr. Mughni for reinstatement in service merits no consideration and is liable to be rejected."
8. ' It would appear from the above letter that the Law Department was of the view that: fistly, DMLA had no power to set aside the conviction of the appellant particularly when the appellant had served out the sentence of his imprisonment and secondly with completion of the sentence imposed on the appellant, the appellant's case became a past and closed transaction which could neither be reopened nor reviewed. We regret our inability to agree with the above views of the Law Department. It is not the case of the Government that the appeal filed by the appellant against his conviction was time-barred. If so, he was not to blame if the Appellate Authority namely DMLA slept over the matter and decided his appeal after he had served out the sentence of imprisonment. It is true that exoneration of the appellant by the order of DMLA could not avoid his undergoing of the sentence of imprisonment which had already been served out. But it was not only the imprisonment that appellant had to suffer as a result of his conviction. Besides that, his conviction carried a permanent stigma for the appellant. On top of this, it resulted in his dismissal from service and thus he was deprived of the source of livelihood. While appreciating the effect of the DMLA's order we could not shut our eyes to these two consequences also flowing from the appellant's conviction. Even if the appellant had served out his sentence of imprisonment by the time the Appellate Court namely DMLA decided his appeal, yet the order passed by the said Authority would have the effect of washing off the remaining consequences resulting from the conviction.
9. ' Accordingly it was incorrect to say that since the appellant had served out his sentence of imprisonment his case became past and closed transaction and therefore could not be reopened in the light of belated order passed by the appellate authority. As has been discussed above the appellant's case was very much alive when the DMLA set aside the conviction of the appellant, as the above two consequences that he had suffered beside imprisonment in the wake of his conviction still remained to be wiped out. Moreover, the legal phraseology of "past and closed transaction" is invariably applied when certain law is promulgated with retrospective effect. While interpreting the retrospectively of the law, it has been repeatedly held by the superior Courts that such law would cover only the cases which are pending at some or other forum but would not be stretched to extend even to the cases which are finally decided and have thereby become past and closed transaction.
10. As stated above the appellant's dismissal was solely based on his conviction. Therefore we are of the view that with setting aside of the conviction the order of his dismissal stood automatically revoked. Consequently the appellant could not be denied the benefit of reinstatement in service on the ground that he had already served out the sentence of the imprisonment inflicted on him.
11. Refusal to take him hack in service would tantamount to perpetuate the punishment of dismissal despite the fact that conviction on which such punishment was based had been set aside. This could not be legally permitted.
12. ' For above reasons we hold that as soon as conviction of the appellant was set aside by the DMLA, not only the stigma carried by the appellant disappeared but also his dismissal from service based on the said conviction stood cancelled.