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ISLAMABAD: The Supreme Court held, once a person confesses to his guilt and enters into plea bargain under the NAB law for return of amount pocketed or gained through illegal means, cannot hold any government/public office.

A three-judge bench, headed by Chief Justice Gulzar Ahmed, heard the chief secretary Khyber-Pakhtunkhwa's appeal against the Peshawar High Court verdict, directing the KP Provincial Selection Board to issue pro-forma promotion order of Hidayat Ullah Khan Gandapur (respondent) in (BS-20) with effect from 10 September 2001.

The respondent was Superintending Engineer in Irrigation Department of the KP. He was arrested by the NAB under Section 9 and 10 of the National Accountability Ordinance (NAO), 1999 for his involvement in corruption and corrupt practices.

However, on account of plea bargain, he was released. After initiating disciplinary proceedings by his department, he was dismissed from service.

The SC judgment said that the case predominantly germane to the claim of respondent for pro-forma promotion after retirement, which was allowed by the High Court. The respondent claimed the benefit of pro-forma promotion should also be granted to him.

Violation of ‘Code of conduct’ AJK EC unlikely to proceed against Gandapur

He vigorously relied upon the case of Engineer Zahid Arif, Assistant Director Works and Services Department, who was also proceeded under the Removal from Service (Special Powers) Ordinance, 2000 for his involvement in the NAB case and he also entered into a plea bargain.

Engineer Zahid Arif was dismissed from service but reinstated by the Service Tribunal and later on, he was also granted pro-forma promotion.

The judgment, authored by Justice Muhammad Ali Mazhar, said that the Section 15 of the NAO, 1999, inter alia, stipulates that if the accused person is convicted under Section 9, he shall forthwith cease to hold public office, if any held by him and further he shall be disqualified for a period of 10 years to be reckoned from the date of his release.

The proviso attached to this section provides that any accused person who has availed the benefit of Sub-section (b) of Section 25 (plea bargain) shall also be deemed to have been convicted for offence under this ordinance and shall forthwith cease to hold public office.

The apex court said in the cases where the documents on the basis of which departmental proceedings have been initiated are not in dispute, the competent authority can dispense with the regular inquiry as no material is required to be collected for proceeding against the delinquent officer.

The judgment said, in the suo motu case No 17/2016, the apex court held that once a person is accused of corruption or corrupt practices, volunteers to offer to return the amount he has pocketed or gained through illegal means, prima facie, cannot hold any government/public office, as the very act of his offering the voluntary return falls within the definition of "misconduct" under the service law and calls for initiation of disciplinary action against the accused persons.

The court noted that while passing impugned judgment, the High Court only concentrated and focused on the case of Zahid Arif alone and held that the case of respondent and Engineer Zahid Arif were identical on all counts.

The respondent could not claim that if something wrong has been done in the case of ZahidArif; therefore, the same direction should be given in his case also for committing another wrong, which would not be setting a wrong to right but would be moving ahead and perpetuating another wrong, which is disapproved and highly deprecated.

The High Court failed to analyse and discern that in the peculiar circumstances of the case, the respondent was not entitled to claim pro-forma promotion as a vested right; therefore, on the face of it, the direction issued by the High Court to grant this benefit was not based on correct exposition and elucidation of law and facts.

Copyright Business Recorder, 2021

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