2005 PLP (C (PLC(CS))

4. The Appellant replied the Charge-sheet denying the allegations against him on 18-11-2000 and stated that Mr. Nasim Ahmed agent of M/s. Progressive Enterprises who had already been declared as black-listed was very much annoyed with the Appellant particularly when the firm was blacklisted in A.P.S.C. on the complaint of (MNC) Gaddap Division-III. The said report is reproduced as under:- THE KARACHI ELECTIRCIC SUPPLY CORPORATION LTD. Ref: Z. M. (F.B.A.) Z.6/2000/183/Adm-4/00/461 Date: 22 Nov. 2000 C.E.OD-III/O.K.C. (D)/AD).IMP Office of the KES EF (m & o) Gadap (North) Diary No.968 Date 6/2000. Subject: Complaint Received From Residents of Ayoob Goth. Please refer to the letter dated 12-5-2000 received from the residents of Ayoob Goth (original enclosed). In this connection as advised by Adv. Imp. We have called the applicants in our office Mr. Bari and Mr. Abdul Hakim and Mr. Muhammad were available. We are submitting our report as under:

1. The subject application was written by the contractor M/s. Progressive Enterprises and submitted in Adv. Imp and Office by Muhammad Hussain Qureshi.

2. Due to illiterate peoples the suppliers are unaware about the content of the letter. They have just put their thumb-impression on complaint letter.

3. They are unaware about any commitment made by K.E.S.C. Supervisor Shehzad Mr. Azim.

4. They have no complaint against the above named persons. 5. 38 illegal brackets installed by M/s. Progressive Enterprises are without meters. It is therefore requested that M/s. Progressive Enterprises (who is now blacklisted due to above illegal act) may be asked to return the money collected by them to the residents and remove the illegal brackets installed. (Sd.) MUMTAZ BAZ ZONAL MANAGER (F.B.A.) ZONE

5. The Appellant has stated that while he was sitting in his Office Mr. Nazim Ahmed agent of M/s. Progressive Enterprises came in his Office while Appellant was busy with some official work and those cash deposit slips were in respect of some work which was given to the firm prior to their declaration of blacklisting, as the assignment of fresh work was totally denied to them, in the most pre-planned way agent Mr. Nasim Ahmed kept few currency notes in the SDs and kept the same on the table, by that time perhaps it is pre-arranged planning the team of raiding party came inside the Appellant Office and took possession of the above SDs containing hidden few currency notes, by that time the Appellant was unaware regarding any mischief of the agent Nasim Ahmed, the Appellant informed the raiding party regarding presence of SDs on his table and was naturally very much confused being ignorant of the mischief played by the agent of the firm.

6. The Appellant has further stated that the Respondent Deputy Chief Administrative Officer ordered enquiry against him appointing Mr. Sarwar Faridi E (Project) as Enquiry Officer who conducted oral mode of enquiry and the entire proceeding was carried out by them in compulsion and threats. The Deputy Chief Administrative Officer dismissed the Appellant vide letter dated 26-4-2001. His departmental appeal as mentioned above was rejected, hence this appeal with the prayer to set aside the impugned dismissal order dated 26-4-2001 and to reinstate the Appellant with all consequential benefits.

7. The Respondents filed Comments stating therein that the action against the Appellant was initiated by Major Saqib (Intelligence Wing) when on the report of one Nasim Ahmed agent of M/s. Progressive Enterprises and the Appellant had received illegal gratification of Rs.2500 in his Office. The Appellant was given full opportunity to defend himself against the charges levelled against him and the charge of misconduct was established against him on the basis of the confession dated 21-7-2000 in presence of witness Mr. Mumtaz Nabi, the then Z.M. (F.B.A.). During the enquiry the Respondents did not examine any witness of the Respondents except there is only one Statement on oath of the Complainant Nazim Ahmed (Photostat copy). This Statement has been recorded in presence of Mr. Mumtaz Nabi Z.M. (F.B.A.) and Zulfiqar Amur E.E. (M&C).

8. We have heard the learned counsel for the parties and perused the record.

9. The learned counsel for the Appellant has challenged the basis of the charge-sheet dated 10-11-2000. He pointed out that the charge-sheet was issued on 10-11-2000 when the Government Servants Removal from Service (Special Powers) Ordinance, 2000 had already come into the field. Accordingly under section 12 thereof all proceedings against the Appellant under K.E.S.C. (E&D) Rules 1978 were unlawful, null and void. The reliance is placed on 2003 PLC (C.S.)

600. The learned counsel for the Appellant further contended that the Deputy Chief Admin. Officer was not Competent Authority to dismiss the Appellant from service and in support of his arguments he placed reliance on case-laws reported in PLD 1973 Lahore 188, PLD 1998 (CS) 664, 2002 PLC (C.S.)

259. The learned counsel for the Appellant contended that neither any show-cause notice was issued nor any Statement of Allegation was given to the Appellant. He was verbally directed to appear before the Enquiry Officer. Consequently the Appellant appeared before the Enquiry Officer and participated the enquiry proceedings with the request that he may be given opportunity for cross-examining the complainant and witnesses and also to produce the evidence in his defence but in spite of repeated written request he was not given any opportunity. Even opportunity of personal hearing was not afforded to the Appellant. He has placed reliance on 1986 PLC (CS.) 419, 2000 SCMR 934, 2003 PLC (C.S.)

365. He further contended that so-called confession/admission of the Appellant on 21-7-2000 before Major Saqib was dictated under duress and pressure, as such, confession has got no value in the eyes of law. He has placed reliance on NLR 1986 T.D. 63, PLD 2002 SC 667, 2005 PLC (C.S.) 929, SBLR 2004 SC 16.

10. Learned counsel for the Respondents contended that raiding party headed by Major Saqib (Intelligence Wing) raided the Appellant which he received illegal gratification of Rs.2500 from one Mr. Nasim Ahmed agent of M/s. Progressive Enterprise in presence of Mr. Zulfiqar and Mr. Mumtaz Nabi in his Office and the Appellant had also confessed such Statement in presence of witness. The learned counsel for the respondent contended that as the defect in the show-cause notice or personal hearing is concerned, the same was immaterial as the Appellant fully participated in the enquiry and admitted receipt of the illegal gratification.

11. The factual position is that no enquiry was ever ordered or conducted by the Respondents as is evident from Parawise Comments filed by the Respondents. So far as the transaction of money is concerned, that did not take place in view of and in presence of the witnesses as per documents filed by the Appellant. The confessional Statement of the Appellant as evident from the document was obtained through coercion and pressure by the Army Intelligence Wing. It is an admitted fact that before passing the impugned order of dismissal from service dated 26-4-2001 the Appellant was not provided the chance of personal hearing meaning thereby the Appellant. was deprived of the A right of audi alteram partem (no one can be condemned unheard). The Confessional Statement if any as alleged by the Respondents was not confronted with the Appellant during the course of enquiry through any witness, which is evident from the Parawise Comments. No witness was examined in presence of the Appellant and the Appellant was also deprived of his right of cross-examining the witnesses to elucidate truth. The entire case is quite silent about the whereabouts of the currency notes as description thereof and de-nomination of each is also not on record and benefit of all these aspects goes to the Appellant.

12. The crucial point pertaining to his so-called confession, an analysis of the oral and documentary evidence will have to be undertaken. The Complainant Nasim Ahmed had not lodged any written complaint against the Appellant. The Respondents have filed photostat copy of the so-called confession of the Appellant which reads as under: "I am sorry. Kindly excuse me. If you would give me a last chance I shall be very grateful to you and I belong to my poor family due to which I would he careful in future. Submitted for excuse please. AEE ML. AG Abdul Zahoor Qureshi"

13. In the above-mentioned Statement of the Appellant, there is no evidence of the demand of money; the payment of the money, the purpose for which money was paid and recovery of said money, if any, whereas the show-cause notice dated 10-11-2000 alleges that a sum of Rs.2500 had been received by Appellant in presence of Maj. Saqib. On the other hand the Appellant has produced a letter of June, 2000 along with Memo. of Appeal which clearly mentions that M/s. Progressive Enterprises who is now blacklisted due to above illegal act may be asked to return money collected by them to the residents and remove the illegal brackets 'installed. This all shows that the Appellant has been involved falsely and the entire case is quite silent about the whereabouts of the money of Rs.2500 and benefit goes to the Appellant. It is not known how and why the Appellant had confessed his guilt for which there was absolutely no evidence. The Appellant has stated that as M/s. Progressive Enterprises were declared blacklisted as per letter dated Nil June, 2000 and therefore he had been falsely involved in this case. The Respondents have failed to prove the incident of taking the money by the Appellant as such more admission of the Appellant to sign a document and that too at the instance and before Army Team (which was the Law Enforcing Agency) cannot be said to be voluntarily admission or confession. None has been examined to prove the fact that Appellant had voluntarily and of his own free-will and consent put his signature on it. The documents brought on record by the Respondents are conflicting and contradictory. These back proof leading to a devoid of any truth.

14. We are of considered view that there could be no occasion for the Appellant to have signed the confessional statement of, his own free-will and consent, as such, we are not convinced of any misconduct against the Appellant. In case of Raja Ali Gul Mangi v. Managing Director Pak State Oil Co. Ltd. and other reported in 2004 PLC (C.S.) 929, signature obtained under coercion was held to be of no use being not out of free-will and this view was upheld in SBLR 2004 SC

16. Accordingly we have come to the conclusion that the penalty of B dismissal imposed upon the Appellant was not justified. As a last leg of his argument, he has relied on the judgment of the FST in Appeal No.1304(K)(CE)/2001 (Races Ahmed v. KESC) and has argued that the benefits of the same judgment be granted to the present Appellant, as ruled in 1996 SCMR 1185 wherein it has been held that:-- "If FST or Supreme Court decides a point of law relating to the terms and conditions of a civil servant which covers not only the cases of civil servants who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demand that the benefit of such judgment by FST/Supreme Court be extended to the civil servant, who may not be parties to the litigation instead of compelling them to approach the Service Tribunal."

15. We further held that on the basis of evidence by it on record by the Respondents no punishment whatsoever could be imposed on the Appellant. We, would therefore not allow the Appellant in the shape of his dismissal from service only on the basis of his signature on a confessional statement before the person in authority which has not been proved by any evidence.

16. We, therefore, accept the appeal and set aside the impugned c order. Consequently we direct the Respondents to reinstate the Appellant in service. The Appellant is entitled to full back-benefits from the date of his dismissal till the date of his reinstatement minus whatever earned by him during the intervening period, for which he shall submit an affidavit before the Competent Authority. No order as to costs.

17. Announced in open Court. Copies of judgment be sent to the parties under registered cover under rule 21 of Service Tribunal (Procedure) Rules, 1974. H.B.T./154/FST Appeal accepted.