Civil servant can’t avail any benefit after plea bargain: SC

Top court says PHC failed to discern that respondent was not entitled to claim proforma promotion

ISLAMABAD:

The top court has ruled that no benefit could be granted to a government servant after plea bargain in a corruption case.

"Any such benefit granted beyond the exactitudes or rigors of law cannot be treated as a good precedent in the case of respondent for implementation in the stricto sensu, rather it is an unlawful act of the authority which recommended the case of proforma promotion of a person who was booked by NAB [National Accountability Bureau] in a corruption case and released after plea bargain,” read a five-page judgment authored by Justice Muhammad Ali Mazhar.

A three-judge bench of the Supreme Court, led by Chief Justice Gulzar Ahmed, was hearing the matter of a case wherein the Peshawar High Court had directed the Khyber-Pakhtunkhwa government to issue proforma promotion order of an engineer in the irrigation department (BS-20) with effect from September 10, 2001.

The SC further held that a wrong order or benefit could not become a foundation for avowing equality or equal opportunity for enforcement of treatment alike. “Rather, such right should be founded on a legitimate and legally implementable right,” it added.

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The court noted that the “niceties of Section 15 [of the National Accountability Ordinance] inter alia stipulates that if 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 ten years to be reckoned from the date 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 noted that the case in hand “predominantly germane” to the claim of the respondent for proforma promotion after retirement -- which was allowed by the PHC without considering the impact and aftermath of the plea bargain.

"The objectives of promulgating National Accountability Ordinance is to provide for effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto."

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The judgment further noted that as a special law, it was meant to eradicate and exterminate graft and corrupt practices; and hold the people involved in them accountable to safeguard and protect the public exchequer.

The court referred to its 2016 ruling wherein it was held that the option of voluntary return by a public servant and or a civil servant fell within the ambit of “misconduct” and needs to be departmentally proceeded against once the person had admitted that he had earned money by corruption.

"After admitting this fact, he cannot hold any public office either in the federal or provincial government or in any state-owned organisation."

The court also cited another ruling wherein it was held that once a person accused of corruption or corrupt practices volunteered to offer to return the amount they had pocketed or gained through illegal means, prima facie, could not hold any public office, as the very act of their offering the voluntary return fell within the definition of “misconduct” under the service law and called for initiation of disciplinary action against them.

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

"We are sanguine that the catchphrase and expression, ‘two wrongs don't make a right’, symbolises a philosophical benchmark in which a wrongdoing is made level or countered with another wrongdoing. In fact this maxim is used to reprimand or repudiate an unlawful deed as a reaction to another’s misdemeanor.”

The court said that the respondent could not claim that if something wrong has been done in the case of Zahid Arif, therefore, the same direction should be given in his case also for committing another wrong. “[This] would not be setting a wrong to right but would be moving ahead and perpetuating another wrong which was disapproved and highly deprecated,” the verdict read.

"No case of any sort of discrimination is made out. The concept of equal treatment could not be pressed into service by the respondent which presupposes and deduces the existence of right and remedy structured on legal foothold and not on wrong notion or whims."

The judgment read that the high court had “failed to analyse and discern that in the peculiar circumstances of the case, the respondent was not entitled to claim proforma 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”.