' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Muhammad Hussain was one of the 14 Inspectors of Customs Department who were dismissed from Government service under the provisions of Rule 4(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E & D Rules), with effect from 21-3-1981, vide order dated 7th May, 1981, passed consequent to their conviction by the Summary Military Court No, 52, Rawalpindi. On his mercy petition to the Martial Law Administrator Zone 'A', Lahore, he was granted 'pardon'. It was also ordered by the M.L.A.
That the appellant should be reinstated in service. This order was passed on 4-9-1985. On the basis of this order, the appellant made an application to the Collector of Customs for his reinstatement in service. He also made an application to the Chairman, Central Board of Revenue, Islamabad on 21-9-1985 for reinstatement in service. He did not get orders for his reinstatement from either quarter and he, therefore, filed this appeal on 21-4-1986.
2. The learned counsel for the appellant has urged that the order of dismissal of the appellant from service was illlegal firstly because it was passed without serving a show-cause notice on the appellant; and secondly that it was made operative retrospectively. He has placed reliance on the cases reported in 1984 PLC (C.S.) 383 and 1985 PLC (C.S.) 890. He has next urged that the appellant was granted unconditional pardon with the direction that he should be reinstated in service. He has made a grievance of discrimination and pointed out that Mr. Nazar Muhammad and one other Inspector, who were dismissed from service like the appellant, were reinstated in service. He has also pointed out that this appeal was heard along with identical Appeal No, 397(R) of 1985 by a Bench of this Tribunal and surprisingly that appeal was decided on 13-10-1987 but no decision was given on this appeal and it had to be reheard. He has made reference to the opinion of Deputy Attorney General dated 22-9-1986 and placed reliance on the decision of the Supreme Court in Ghulam Mustafa Khar's case reported in 1988 SCMR 182.
3. The respondents have resisted the appeal. They have contended that the appellant was dismissed from service consequent to his conviction by the Summary Military Court. They have stated that the direction by the M.L.A. For reinstatement of the appellant was addressed to the Central Board of Revenue and there were no orders to the Collector of Customs for his reinstatement and, therefore, he was not reinstated in service. As regards identical cases of M/s. Syed Shabbir Hussain Shah and Tahir Maqbool, Inspectors who were reinstated in service, their stand is that they were reinstated as the orders for their reinstatement were addressed to the Collector of Customs and he complied with those orders. Their further stand is that the case of the appellant was referred by the Central Board of Revenue to the Finance Minister who declined his reinstatement in service in view of rejection by the President of the cases of M/s. Abdur Rehman, Muhammad Iftikhar, Tehsin Miran Gilani and Sultan Haider for reinstatement in service.
4. The learned counsel appearing on their behalf has contended that the order of pardon did not ipso facto entitle the appellant to reinstatement in service. He has relied upon Agha Aqeel Nasir's case, reported in 1984 SCMR 788. He has argued that each case has its own distinguishing features and the appellant's case was dealt with on its own merits and there was no discrimination in his case. He has pointed out that Summaries were submitted to the President, the Prime Minister and the Finance Minister, but they did not agree to the reinstatement of the appellant in service.
According to him, the appeal is not competent as no departmental appeal was filed.
5 Stigma of conviction. The case of the appellant is, therefore, examined on the second alternative that the pardon with the order of reinstatement amounted to his restoration to the post he was holding at the time he was dismissed from service. It may be added that pardon with the order for reinstatement in service tantamounted to honourable acquittal. Considering the case from that angle, a person removed from service consequent to his conviction from a Court of law and subsequently honourably acquitted by the superior Court, is entitled to restoration to the position he was deprived of on account of his conviction, otherwise there would be no relief to a person who is ultimately found to be innocent. Since the very basis of the impugned order i,e, conviction of the appellant by Summary Military Court stood annulled, there could be no reason for not restoring the appellant to the original position. There is clear decision of the Supreme Court on this proposition in the case of Muhammad Sardar Khan v. Senior Member (Establishment) Board of Revenue, Punjab, Lahore 1985 SCMR 1483 in which it was held that in case the sentence is set aside and the accused officer is acquitted, the very basis on which order of removal from service stands, would disappear and the result of such an event would be that the order of removal itself will be rendered ineffective and liable to be set aside and such order was actually set aside and it was directed that the appellant shall be reinstated in service.
6. The appellant was dismissed from service in a summary manner, consequent to his conviction by a Summary Military Court, seemingly by having resort to the provisions of Rule 8 of the E & D Rules (although not specifically mentioned). He was conferred pardon by the competent authority with the direction that he may be reinstated in service. The effect of pardon was considered by the Supreme Court in the case of Muhammad Asghar v. Government of Sind PLD 1977 SC 212, and it was held that a free pardon did not restore a convicted person to public office forfeited by or in consequence of conviction, and that view was reiterated in the case of Agha Aqeel Nasir v.
Inspector-General of Police, Quetta 1984 SCMR 788. Of course, a distinction was sought to be made in the facts of the two cases referred to above, in the way that in Muhammad Asghar's case there was pardon simpliciter with no direction for reinstatement of service, whereas there was a direction in Agha Aqeel Nasir's case that he should be reinstated in service, but it was observed that there was no direction for reinstatement in service even in the case of Agha Aqeel Nasir.
However, the observations in Agha Aqeel Nasir's case on this aspect give impression that had the argument advanced before the Supreme Court to project distinction between the facts of the two cases been supported by the record, the argument might have attracted observations otherwise.
To the best of my understanding, the cases of free pardon and pardon with further direction for I reinstatement in service have distinct import and the later situation would wash off the
7. There is also another aspect of the case. Some of the Inspectors who were dismissed from service along with the appellant were reinstated in service and it is surprising that the appellant was refused reinstatement in service on the ground that the order of his reinstatement was forwarded to the Central Board of Revenue and it was not endorsed to the Collector of Customs, whereas the orders for reinstatement of the .Reinstated Inspectors was directly endorsed to the Collector of Customs and he had executed that. This was defmitely a discriminatory treatment. No doubt, the case of the appellant and some other Inspectors was referred to the higher authorities to seek orders against their reinstatement on the basis ofadministrative expediency and orders were passed accordingly. It appears from the Summaries submitted to the higher authorities, the copies whereof have been placed on the record, that the aspect of discrimination that was to emerge by refusing reinstatement of some of the Inspectors was not projected and there was no legal justification for making such discrimination.
8. As regards the objection to the maintainability of the appeal, the appellant had actually filed departmental appeal to the Central Board of Revenue which was in the form of application and he awaited reply for 90 days and thereafter filed this appeal. There does not seem any legal lacuna as to affect the maintainability of the appeal.
9. In view of the reasons recorded above, the appeal is allowed and the order of dismissal of the appellant from service .Dated 7th May, 1981 is set aside. The appellant shall be reinstated in service and he shall be entitled to all the back benefits.