' ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to the appellant in view of conflicting decisions on the same subject in Muhammad Faiq Khan Khattak v. The Managing Director/Chairman, Board of Directors, Agricultural Development Authority, N.-W.F.P. (Writ Petition No,42 of 1981, decided on 8-12-1984 and judgment corrected on 21-5-1985) and Writ Petition No,210 of 1986, Safiullah v. The Managing Director, Agricultural Development Authority, N.-W.F.P., Peshawar PLD 1989 Pesh.
124. The impugned judgment in this appeal is dated 25-1-1988.
2. The facts of the case are that cases of embezzlement of funds were registered against Major (Retd.) Sattar Muhammad, ex-Director, Agricultural Development Authority, on 2-6-1977, 24-10-1977 and 16-8-1977. He was tried by a Military Summary Court. He was convicted and awarded the sentence of fine of rupees one lac. The Deputy Martial Law Administrator set aside the conviction in one case and acquitted him. In another case, he was granted pardon. A direction was issued on behalf of the Deputy Martial Law Administrator that he shall be reinstated in service without affecting his-seniority and shall also not be liable to any departmental action. He was reinstated in service in consequence of the said order. He applied to the department for grant of pay and allowances for the period he remained under suspension. However, his services were terminated on 2-9-1982 in pursuance of the directions given by the Governor of the Province/Martial Law Administrator.. The appellant submitted an appeal to the Chief Martial Law Administrator. The appeal was dismissed by the C.M.LA. He again filed an appeal on 30-3-1985 before the Governor requesting for reinstatement in service but without any response. His application dated 6-8-1986 was also dismissed by the Chief Martial Law Administrator. He challenged the order of termination of his services in a Constitution Petition. The High Court, however, dismissed the petition.
3. Leave to appeal was granted in view of the two judgments of the Peshawar High Court wherein contrary view was taken by the same Court.
4. In Safiullah's case PLD 1989 Pesh. 124, it was held that "the order of termination of services on the direction of Governor was in violation of terms and conditions of service. Even the subsequent approval by the Board would be of no legal effect. No notice was given to the petitioner and no inquiry was held. Similar view was taken in another case." But the present case is distinguishable as the High Court has not exercised its discretionary. Jurisdiction in favour of the appellant on the following grounds:- "(1) The termination of the services of the petitioner has been approved by the Board of Directors, which according to the petitioner's own case was competent to make such an order. This approval of the Board of Directors could at least be prospective in operation, if not retrospectively applicable.
(2) The background of the facts that a conviction was recorded by a Military Court against the petitioner in a case of embezzlement of money cannot be kept by us out of consideration while sitting in our constitutional jurisdiction no matter the Deputy Martial Law Administrator pardoned the petitioner with respect to that offence.
(3) No mala fide on the part of the authorities making the impugned order could be pointed out by the learned counsel for the petitioner, nor has any illegality come to our notice in this regard.
(4) The discretionary relief to a person with this record cannot be granted by us while in this jurisdiction."
5. The above are the findings of facts. On the basis of element of corruption the High Court refused to grant discretionary relief to the appellant.
6. Learned counsel for the appellant has stated that the appellant has, already reached the age of superannuation and therefore at the most he could claim salary for five years for this period. The appellant has stated that he has not worked during this period and waited for the decision. The High Court has dealt with the case legally and properly. No violation of law is involved for decision by this Court. The appeal is dismissed. No order as to costs.