2019 PLP (C (PLC(CS))

MUHAMMAD YOUNIS THAHEEM, J.

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking following relief:- "On acceptance of this writ petition, this Hon'ble Court may graciously be pleased to declare the impugned order dated 30.09.2016, as without lawful authority and hence of no legal effect and this august Court may further be pleased to set aside the same and direct the respondents to act in the matter in accordance with law and to reinstate the petitioner into service w.e.f 30.09.2016 with all back benefits."

2. Brief facts of the petition are that petitioner was appointed as Constable/SPO vide appointment order bearing endorsement OB No.911 dated 14.07.2014 by District Police Officer, Swabi and was allotted constabulary No.92/SPF (Special Police Force). After appointment petitioner performed his duty to the satisfaction of his superior officer till 30.09.2006 for more than 02 years. Thereafter according to the averments of petition he was implicated in criminal case vide FIR No.488 dated 16.07.2016 under section 336/337 A(iv) P.P.C. P.S Topi and in pursuance of said criminal case petitioner was arrested. Petitioner moved an application for the grant of bail but it was declined, thereafter on application of petitioner Medical Board was constituted to determine the nature of injury of injured complainant. According to the Medico-legal Report of Board the earlier Medico-legal Report was found incorrect and petitioner was allowed bail by this Court vide order dated 23.01.2017. As petitioner was implicated and arrested in the aforesaid criminal case, so he was dismissed from service vide dismissal order bearing endorsement No.3354-57/PA dated 30.09.2016, passed by the District Police Officer, Swabi. The petitioner feeling aggrieved from his dismissal from service approached this Court for constitutional interference on the ground that his service was dismissed in violation of law and has not been treated according to the law of the land.

3. Comments were called from respondents among them respondents Nos.1 and 2 submitted their comments and supported the dismissal order dated 30.09.2016 with further assertion that they have not violated the provision of the constitution particularly Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan as petitioner was involved in criminal case vide FIR No.487 of 2016 mentioned above, so he was dismissed from service according to the Service Rules.

4. Arguments heard and record perused.

5. According to the record it is admitted position that petitioner was appointed as Constable bearing FC No.92 in Special Police Force, Swabi vide appointment order dated 14.07.2014. It is further admitted position that after the registration of aforementioned criminal case the services of petitioner as Constable in SPF, Swabi were dismissed vide impugned order dated 30.09.2016. The arguments of learned counsel for petitioner that mere allegations of commission of an offence and registration of FIR against a person would not apso-facto declare him guilty and would be presumed to be innocent unless and until is convicted by competent Court of law and the employee/civil servant can only be suspended and could not be dismissed from service. In this respect learned counsel referred judgment of Hon'ble Supreme Court of Pakistan titled as "Habib Bank Ltd v. Ghulam Mustafa Khairati" cited as 2007 PLC (C.S) 997 and referred Civil Service Regulations (C.S.R) Article

194. The Provisions of Article 194 of C.S.R is reproduced as below:- "A Government Servant who has been charged for a criminal offence or debt and is committed to prison shall be considered as under suspension from the date of his arrest. In case such a Government servant is not arrested or is released on bail, the competent authority may suspend him, by specific order, if the charge against him is connected with his position as government Servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. During suspension period the Government Servant shall be entitled to the subsistence grant as admissible under F.R-53.

6. According to the aforesaid article, if civil servant or employee has been charged for a criminal offence, he is considered under suspension from the date of his arrest and cannot be dismissed from service. So, deriving wisdom from the judgment of Hon'ble Supreme Court referred above and in the light of above reproduced Article 194 of C.S.R, we hold that if criminal case is registered against the civil servant or employee the employer is suppose to suspend that civil servant/employee instead dismissing him from his service/employment.

7. In the instant case the decision of FIR/trial is pending and petitioner is on bail, therefore, it was better and lawful for the employer to had suspended him till the decision of criminal case registered against him in view of Article 194 of C.S.R and above referred judgment of Hon'ble Supreme Court, but the law has not been followed as under no law they can straightaway award penalty of dismissal from service and it can only be imposed unless and until delinquent is served with show cause notice as well as after inquiry.

8. Thus what has been discussed above, we allow this petition, set aside the dismissal order dated 30.09.2016 and restore his service with all back benefits. ZC/137/P Petition allowed.