' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the order of the Punjab Service Tribunal, Lahore, dated 26-8-1991.
2. The facts of this appeal are that a case under sections 468 and 471, P.P.C. Was registered against Muhammad Ismail, Assistant Food Controller, Sajid Mehmood, Foodgrains Inspector, Amjad Ali, Foodgrains Supervisor and Syed Qasim Ali Shah, the appellant, who was also a Foodgrains Inspector. The appellant and the co-accused were convicted by the Summary Military Court; a fine of Rs,1,50,000 was imposed against the appellant on account of charges of misappropriation in Government sugar. On his appeal the Deputy Martial Law Administrator, Bahawalpur, reduced the fine to Rs, 50,000. The appellant had paid the amount of fine. The Deputy Director, Food, Bahawalpur Region, Bahawalpur, dismissed the appellant from service on 15-6-1981, under rule 9(b) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, hereinafter referred to as Rules. The appellant's departmental appeal was dismissed by the Director, Food, Punjab Lahore, on 8-1-1990. The appellant challenged these orders before the Punjab Service Tribunal. However, his appeal was dismissed by the impugned judgment.
3. In the leave granting order a number of cases decided by the Tribunal had been noted wherein it considered the amendment. To rule, 9 to be an approval of the view taken by the Tribunal of the unamended original rule 9 of the Punjab Civil Servants (Efficiency & Discipline) Rules, but in the case of the appellant a different conclusion was taken by the Tribunal. In order to appreciate the contentions presented on behalf of the appellant, we refer to rule 9 as it stood uptil 1-4-1992, and it reads as under:- "9. Rules not to apply in certain cases.--- Nothing in these rules shall apply to a case ---
(a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct, which has led to a sentence of fine or of imprisonment; or
(b) Where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
This rule was substituted on 1-4-1982, and it reads as under:- "9. Certain rules not to apply in certain cases--- (1) Where a civil servant is convicted of an offence involving moral turpitude which has led to a sentence of fine or imprisonment, he may, after being given a show-cause notice be dismissed, removed from service or reduced in rank without following the procedure laid down in rules 5, 6, 7 and 8.
(2) Where the authority is satisfied that for reason to be recorded in writing, it is not reasonably practicable to give the accused civil servant an opportunity of showing cause it may impose any of the penalties under these rules without following the procedure laid down in rules 5, 6, 7 and 8."
' The appellant was dismissed on 15-6-1981, therefore, unamended rule will apply to him.
4. The learned counsel for the appellant has submitted that no show-cause notice was issued to the appellant before terminating his service. Thus, the action of the respondents violates the principle of natural justice. He has referred to Sh. Abdur Rahman Advocate, Bahawalnagar v. The Collector and Deputy Commissioner, Bahawalnagar and 13 others (PLD 1964 SC 461), University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), and Pakistan v. Publicat-Large (PLD 1987 SC 304). The principles laid down in these cases are that in all proceedings, whether judicial or administrative, the principle of natural justice has to be observed; if the proceedings might result in consequences affecting the persons or property or other right of the parties concerned. This rule applies even though there may be no positive words in the statute or legal document. The principle of natural justice requires that no one should be condemned unheard and he must be afforded an opportunity before an action adverse to his rights is taken. The judgments noted above have laid down the general principle, but by bare perusal of rule 9 it is quite clear that the opportunity of hearing has been excluded specifically. According to the rule, a person convicted on a criminal charge by a Court of competent jurisdiction, cannot claim the right of hearing before he is dismissed or removed from service or reduced in rank. The reason being that a person who faces trial before a Court has sufficient opportunity to contest the charge. In the presence of a delinquent officer or his counsel the prosecution evidence is recorded in support of charge. The prosecution witnesses can be subjected to cross-examination by the accused. The purpose of cross- examination is to elicit the truth. The accused can produce the defence to rebut the prosecution's allegation. The accused can engage a counsel and this right is denied in case of departmental inquiry. A convicted person may challenge his conviction and sentence before appellate and revisional Court. The merits of the case is examined again by hierarchy of criminal Courts, so it cannot be legitimately argued that the accused was condemned unheard before an action under rule 9 was taken against him.
5. The learned counsel for the appellant has contended that the Service Tribunal has not independently dealt with the appeal of the appellant. The appeal of the co-accused Muhammad Ismail was dismissed by the Service Tribunal earlier, and on the basis of that judgment the appeal filed by the appellant was dismissed. The Service Tribunal merely relied on the judgment of Muhammad Ismail. It did not consider the merits of the appellant's case. The above contention has no force. It is not denied that charge against both of them was same. The material against both of them was same. There is no distinction between the two cases, as such no prejudice has been caused to the appellant.
6. The learned counsel for the appellant has next contended that at least a show-cause notice should have been given to the appellant and reliance has been placed on the Divisional Personnel Officer v. T.R. Challappan (AIR 1975 SC 2216) and Union of India v. Tulsiram Patel (AIR 1985 SC 1416). In the first case rule 14(1) of Railway Servants (Discipline and Appeal) Rules, 1968, was interpreted. This rule reads as under:- "where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit."
' This rule is not para materia with rule 9 therefore, this precedent has no bearing on the facts of the case in hand. Additionally this case does not support the view propounded by the learned counsel.
It has been observed in para. 9 of the report that:- "The word penalty imposed on a railway servant, in our opinion, does not refer to a sentence awarded by the Court to the accused on his conviction, but though not happily worded it merely indicates the nature of the penalty imposable by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to his conviction on a criminal charge."
' It has been further observed that:- "an order of release on probation, under the provisions of the Probation of Offenders Act, 1958, comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender."
' Similarly the second citation is also not helpful to the appellant. In this case Article 311 of the Indian Constitution was interpreted by the Court. This Article reads as follows:- "27. Article 311 as originally enacted was in the following terms:--
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--- (1) No person who is a member of a Civil Service of the Union or an all-India service of a service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: ' Provided that this clause shall not apply --
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge."
The conclusion drawn by the majority is reproduced below:- "The language of the second proviso to Art. 311(2) is plain and unambiguous. The keywords in the second proviso are "this clause shall not apply". By "this clause" is meant clause (2). As clause (2) requires an inquiry to be held against a Government servant, the only meaning attributable to these words is that this inquiry shall not be held. The keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a Government servant. The phrase this clause shall not apply' is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Art. 311(2) or from giving any kind of opportunity to the concerned Government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. Therefore, the view that even where by the application of the second proviso the full inquiry is dispensed with, there is nothing to prevent the disciplinary authority from holding at least a minimal inquiry or giving to the Government servant an opportunity of showing cause against the penalty proposed to be imposed or giving of charge-sheet or at least a notice informing the Government servant of the charges against him and calling for his explanation is wholly untenable.
' The conclusion which flows from express language of the second proviso to Art. 311(2) is inevitable and there is no escape from it. It may appear harsh but the second proviso has been inserted in the Constitution as a matter of public policy and in public interest and for public good. It is in public interest and for public good that a Government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. Sympathy and commiseration cannot be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a Constitutional prohibition. After all, it is not as if a Government servant is without any remedy when the second proviso has been applied to him, namely, departmental appeal and judicial review."
' In Province of West Pakistan v. Malik Aman (PLD 1971 Quetta 117) Rule, 8(2) of the Railway Servants (Efficiency and Discipline) Rules, 1961, came under consideration, and this rule reads as under:-- "where a Railway servant is dismissed or removed from service or reduced in rank on the ground of misconduct which has led to a sentence of fine or of imprisonment by a Court."
' It was observed that the Railway Employee was not entitled to any show-cause notice, as he had been convicted under section 379, P.P.C. In Municipal Board, Partabgarh v. Mahendra Singh (AIR 1982 SC 1493) it has been observed that ordinarily an employee convicted for an offence of accepting illegal gratification meaning thereby involving moral turpitude is liable to be dismissed and no enquiry would be necessary before imposing the penalty of dismissal from service.
7. This Court had considered rule 8 of the N.-W.F.P. Government Servants (Efficiency & Discipline)
Rules, 1973, in CA. 328/92 and C.A. 329/92, and held that no notice is required, in case a civil servant is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or imprisonment. So long as the conviction remains in the field, the person has to bear the burden of his misconduct resulting into his conviction and sentence. He has to suffer for his own act. The specific intent of the provisions has been stated in the perfect clarity, therefore, new things cannot be incorporated in the rule. The provision is neither arbitrary nor unilaterally. An officer, who has been sentenced, may not be desirable person for service. It is important to note that this provision has been made in order to maintain the discipline and good conduct of the servant. The intention of rule-making authority may further be observed from the fact that the substituted rule 9 provides the provision of show-cause notice in a case where a civil servant is convicted of an offence involving moral turpitude.
8. Learned counsel for the appellant has referred to the cases noted in the leave granting order and submitted that contrary view was taken by the Service Tribunal in those cases. The Service Tribunal in those cases has not considered the true import of unamended rule 9. The Service Tribunal has observed that rule 9 is enabling provision. This provision has been misconstrued by the Tribunal. It is not an enabling provision but it applies on its own force.
' For these reasons, we see no substance in this appeal, which is hereby dismissed with no order as to costs.