1. HAMZO KHAN M. KURBSHI (CHAIRMAN). - The appellant while working as an Assistant in the office of the Commissioner, Kbairpur Division was ordered to be removed from service by the then Commissioner, after a departmental enquiry but before the order could be implemented the appellant filed a civil suit, which was ultimately decreed in his favour. In appeal however, the decree of the Civil fudge was yet aside by the District Court, Khairpur and then the appellant filed second appeal in the High Court which was allowed and the decree of the lower Court was restored. Due to this the appellant was re-instated in service and posted as Assistant in the office of the Deputy Commissioner Khairpur vide order dated 27-12-t 173.
2. According to the procedure laid down in Finance Deptt. letter No. 2371--SR-VI-68 dated 11-1-1969, the sanction of the finance Department was to be obtained through the concerned Administrative Department for the purpose of determining the nature of the period t f suspension or removal from service in case it exceeded one year. Accordingly the Board of Revenue after consulting the Finance Department passed orders under rule 152 (b) of Sind Civil Service Rules Manual, Volume I and vide its order dated 9-5-1974, the said period was ordered to be treated as leave of whatever nature was due to him. It is against this order that the present appeal is directed.
3. The above order appears to have been prompted by the consideration that the appellant's "acquittal" was not honourable. In their written statement the respondents while admitting the factor of the appellant's re-instatement on the f asis of the judgment of the High Court, have stated that the Board of Revenue as Administrative Department was competent to decide the nature of intervening period in any matter that they chose. It is further stated that rule 152 (a) would apply in case of "honourable acquittal" but in this case the judgment of the High Court shows that the appeal was allowed on account of defective enquiry which bad vitiated the action taken against the appellant. The respondents urge that on account of defective inquiry the acquittal cannot be treated as honourable. Lastly it is stated that the appeal was not maintainable as no departmental appeal, review or representation had been filed.
4. We have heard the appellant's Advocate Mr. Aslam Jaffery and the learned Assistant Advocate General at considerable length. The sole point for determination is whether the provisions of Rule 152 are at all applicable to the case of the appellant. For this finding we have to rely on the observations of the High Court. In the concluding para of the jud4ment his Lordship has observed as under.
5. "In view of my finding that the enquiry conducted by the Inquiry Officer suffers from infirmities which have vitiated the enquiry, I allow the appeal and set aside the judgment of the learned District Judge and restore the judgment of the learned Civil Judge with the modification that it should be open to the authorities concerned to hold a fresh enquiry against the appellant in accordance with law and take such action as may be deemed fit."
6. Admittedly no fresh enquiry was held against the appellant by his Department. According to the judgment of the learned Civil Judge, which was vectored by the High Court, the order removing the appellant from service was "illegal and void" and that "he continued to be in service. When the appellant continued to be in service the question of his honourable acquittal or otherwise does not arise. The legal position would be that there was no enquiry against the appellant nor any order of removal from service passed against him. Salary is the right of a civil servant. The appellant would therefore be entitled to A full salary for the intervening period and other service benefits permitted under the Rules. The learned A. A.-G. was very much alive to this fact and had to admit during the course of arguments, that the previous enquiry having been vitiated and held to be illegal and void, the order of Revenue Board was not based on any charge proved against the appellant. We therefore hold that the impugned order of the Revenue Board (respondent No. 1 cannot be sustained and it should be set aside.
7. Another point raised in the written statement, though not agitated by the learned A. A.-G. is that the appellant had not filed any appeal, review or representation before coming to this Tribunal. This is not factually correct. We have on our record the order of the Revenue Board (Annexure 'G') dated 28-3-1975 which shows that the representation of the appellant was reconsidered and rejected after consultation with the Finance Department. We feel that it was due to this document that the learned A. A: G. had chosen to remain reticent on the point.
8. We therefore set aside the impugned order of the respondents and direct that the period of suspension of the appellant from 1-3-1970 to 31-12-1973 be treated as duty and he should be paid full salary minus the suspension allowance already drawn by him. Each party is left to bear his own costs.