Wednesday, 29 July 2015

Reinstatement is inevitable on acquittal of civil servant

PLJ 2015 Tr.C. (Services) 154[Punjab Service Tribunal, Lahore]
Present: Ashtar Abbas, Member-IV
versus
Appeal No. 2677 of 2012, decided on 11.12.2014.
----Dismissal from service--Prima fice, competent authority committed mistake by switching over from one provision of law to another provision of law.                                     [P. 156] A
----When statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the witnesses--In absence of this, it cannot be said that I.O. carried out full-fledge regular inquiry.    [P. 156] B
----It is also settled principal of law that once civil servant is acquitted after trial by competent Court of law, department would be wrong in refusing to reinstate him.                       [P. 157] C
Rana Abdul JabbarAdvocate for Appellant.
Mr. Hussain Ahmad Mughal, D.D.A. & Mr. Ali Waqas, Clerk for Respondent No. 2.
Date of hearing: 11.12.2014.
Judgment
Through this judgment, an appeal filed by Muhammad Zafran, Ex-Warder No. 5220 against orders dated 8.10.2010, 9.2.2011 and 10.5.2012 whereby the appellant was ordered to be dismissed from service is being decided.
2.  Arguments advanced by the learned counsel for the appellant hearad and available record perused.
3.  Annex (A) available in the file is basic order, which was passed by the Superintendent of Central Jail, Rawalpindi on 19.6.2007 on the basis of which the Superintendent of Central Jail, Rawalpindi by invoking the provisions of Punjab Removal from service (Special Powers) Ordinance, 2000, the appellant was dismissed from service on an allegation that he was involved in case FIR No. 411 dated 07.09.2006 under Section 9-C, P.S Sadar Baruni, Rawalpindi for smuggling of narcotic (Charas 1000 grams) between the night 07/08 of September 2006 from Tower No. 5 and the same was recovered by SG Warder Mola Bukhsh and SG Warder UlfatAli. Previously this basic order was assailed by filing an appeal Bearing No. 1968/2008 before this Tribunal and vide order dated 31.12.2008 the then Hon'bleMember-V allowed the appeal in the following fashion:--
“Under the circumstances, the impugned orders passed by the authorities do not sustain. The instant appeal is accepted and the impugned orders are set aside. Consequently, the appellant is reinstated in service. The case is remanded to the competent authority with the direction to decide the same afresh after holding a regular inquiry into the matter and provide the appellant an opportunity of producing defence in accordance with law. The status of intervening period shall be decided by the competent authority at the time of finalization of the inquiry. “
4.  During post remand proceedings, DIG, Prisons Rawalpindi Region, Rawalpindi switched over the proceedings from Punjab Removal from Service (Special Powers) Ordinance, 2000 to the provisions of PEEDA Act, 2006 and vide order dated 08.10.2010 awarded major penalty to the appellant and dismissed him from service with immediate effect. Against this order i.e. dated 08.10.2010, departmental appeal was filed, which was ultimately rejected by the Inspector General of Prisons, Punjab, Lahore on 09.02.2011. Both the above said orders were challenged by filing revision petition, which were not entertained as the appeal of the appellant has already been dismissed by AIG (Security and Discipline) for the office of Inspector General of Prisons, Punjab, Lahore vide missive No. 3160 dated 10.05.2012.
5.  It is admitted fact that initial basic proceedings were taken up by the Superintendent of Central Jail, Rawalpindi under Section 3 of the Punjab Removal from service (Special Powers) Ordinance, 2000, whereby major penalty of dismissal from service was imposed upon the appellant as he was found involved in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA Police Station Saddar Beruni, Rawalpindi. After post remand proceedings, by the order of this Tribunal dated 31.12.2008 DIG Prisons Rawalpindi Region, Rawalpindi switched over to the provisions of the Section 4 of the PEEDA Act,2006 and by invoking the provisions of PEEDA Act, 2006 appellant was ordered to be dismissed from service with immediate effect. Switching over from one act to another is not appreciate by the Hon'ble Supreme Court of Pakistan in case titled District & Sessions Judges vs Muhammad Nawaz reported in 2003 SCMR 1720. Prima fice, the respondents/competent authority committed mistake by switching over from the one provision of law to another provision of law. It is important to high light that after the remand of the case by the order of this Tribunal, Ch. Azmat Hayat, Superintendent, Sub Jail Chakwal conducted regular inquiry. His report is Annex (L). This report reveals that I.O. recorded the statements of Muhammad Anwar, Assistant Jail, Mola Bakhsh, Warder and Ulfat Hussain, Warder. Report is silent that when statements of witnesses were being recorded, appellant was present there and he was asked to cross-examine the said witnesses. In absence of this, it cannot be said that the I.O. carried out full-fledge regular inquiry. This fact escaped from the notice of the respondents thus they have committed material illegality. It is also important to note that report under Section 173, Cr.P.C. was sent to the competent Court of law for trial of the present appellant/accused in criminal case FIR No. 411 dated 07.09.2006 under Section 9-C CNSA, 1997, P.S Saddar Beruni, Rawalpindi and ultimately vide judgment dated 04.09.2007, learned Additional Sessions Judge, Rawalpindi acquitted the accused Muhammad Zafran from the criminal liability. Nothing is on the record to show that the

police department/prosecution further assailed the judgment of the learned Additional sessions judge mentioned above and the same has been set aside and appellant has been held guilty. In absence of all that, I feel no hesitation to say that the order passed by the learned Additional sessions Judge mentioned above has attained finality. It is also settled principal of law that once civil servant is acquitted after the trial by the competent Court of law, department would be wrong in refusing to reinstate him (2003-TD (Service) 339 is referred). While rejecting the appeal and revision, the appellate as well as revisional authority did not keep in their mind the fact of acquittal of the appellant from the criminal liability hence, they have committed illegality.
6.  In view of what has been discussed above. The appeal is allowed/accepted, impugned orders are set aside and the appellant is reinstated in service with all back benefits.
(R.A.)  Appeal allowed

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