2003 PLP (C (PLC(CS))

ABDUL HAMEED DOGAR, J.‑‑Petitioner Shamas‑ud‑Din Khawaja seeks leave to appeal against the judgment dated 25th June, 2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.763(R)(CS)/2000 whereby the same was dismissed and order dated 18‑7‑2000 of compulsory retirement from service was confirmed.

2. The relevant facts leading to filing of the instant petition are that the petitioner Shamas‑ud‑Din Khawaja was serving as A.S.‑I. in the Intelligence Bureau. Islamabad. It was on 10‑5‑1998 at about 10‑00 p.m. Farhan Khawaja younger brother of the petitioner, had gone to a private clinic at Peshawar Morr, Islamabad, alongwith the petitioner's wife and their sister. While returning to home, they were followed by two strangers in a red car up to their residence. Farhan Khawaja rushed to house located at G‑9/4, Islamabad and informed the petitioner about the hot chase made by the said strangers. They immediately reached the spot and while they were inquiring from the said persons about their chase, some neighbour called Rescue Police No.

15. Soon afterward police arrived at the spot and then took the petitioner as well as those strangers, namely, Dr. Munir Abro and Miran Bakhsh to Margala Police Station. Instead of registering the complaint of the petitioner, police, on the contrary, lodged F.I.R. No.116 dated 11‑5‑1998 under sections 506/342/34, P.P.C. against the petitioner and his brother and they were arrested and sent up to face trial.

3. On 24‑8‑1988 a show‑cause notice was issued against the petitioner under section 5(1)(iii)(b) or the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter called as "the Rules") disclosing the following charges: (a) That according to F.I.R. No.116, dated 11‑5‑1998 registered in Margalla Police Station under sections 506/342/34; P.P.C., you alongwith your brother had beaten Dr. Munir Abro and Miran Bukhsh who followed the private vehicle No.LHH‑6666, driven by your brother up to your residence because your brother had struck his car with vehicle No. IDH‑5578, driven by Dr. Munir Abro while overtaking him; (b) that you were arrested by Islamabad Police on 25‑6‑1998, for your alleged involvement in manhandling of Dr. Munir Abro and Miran Bukhsh and you remained in judicial lock‑up on June 25‑26, 1998 and failed to inform your officer‑in‑charge about your arrest by the police and in order to cover your absence in the office on 25‑26 June, 1998, you applied for leave on account of your mother's illness and tried to hide the facts from office; (c) that due to your involvement in criminal case a news item was published in the press on June 26, 1998 about your arrest by the police which exposed the identity of an organization like I.B.; (d) that you have misused your official positions by introducing yourself as Inspector whereas you are an A.S.‑I. which set a bad precedent for others to emulate casting negative effects on the discipline and performance of the entire department.

4. The petitioner submitted written reply and vehemently refuted the above charges. He pleaded that no departmental action could be initiated against him during the pendency of the above mentioned criminal proceedings. After the release of the petitioner on bail, order of his suspension was set aside by the competent authority and he was reinstated in service in January, 1999 and continued to be in service till major penalty of compulsory retirement under Rule 4 of the Rules was awarded against him vide order dated 18‑7‑2000.

5. Petitioner preferred departmental appeal which was rejected on 6‑11‑2000. Feeling aggrieved, he filed appeal under section 4 of the Federal Service Tribunals Act, 1973, which too was dismissed on 25‑6‑2001.

6. We have heard Mr. S.M. Abdul Wahab, learned Advocate Supreme Court for the petitioner and Hafiz S.A. Rehman, learned Deputy Attorney- General for the respondents and have gone through the record and the proceedings of the case in minute particulars.

7. Mr. S.M. Abdul Wahab, learned Advocate Supreme Court for the petitioner, mainly urged that the very basis of awarding major penalty was the initiation of above mentioned criminal case which ended in compromise between the parties wherein the petitioner was acquitted by a competent Court of Law. According to him, competent authority as well as the Federal Service Tribunal had erred in taking into consideration above aspect of the matter while deciding the case of the petitioner. He lastly contended that in case of awarding a major penalty under the Rules, regular inquiry into the charges cannot be dispensed with thus in the instant case, authorised officer wrongly decided to dispense with regular inquiry in terms of Rule 5(1)(iii) of the Rules.

8. The impugned order on the face of it shows that no regular inquiry as contemplated under rule 6 of the Rules was ever conducted in this case. There is no cavil to the proposition that under this rule, a full‑fledged inquiry is to be made whereby an authorised officer is required to frame a charge and inform the accused Government servant of the statement of allegations against him. Sub‑rules (1) and (2) of Rule 6 clearly stipulate that the accused‑official shall be provided not less than 7 or more than 14 days period to put in his written defence to the charges. Sub‑rule (3) entitles him to produce in defence oral or documentary evidence and also to cross- examine the witnesses against him. Mere factum of taking in hand inquiry proceedings under the rules against a civil servant cannot be equated with the procedure prescribed in the above mentioned sub‑rules (1), (2) and (3) of rule

6. For imposing major penalty there must be ample convincing and reliable evidence placed on record which could safely go to prove charges levelled against civil servant and only then findings could be recorded. From the perusal of the above mentioned charges, it reveals that the departmental proceedings were initiated only on the basis of above mentioned criminal charge. This Court in the case Attaullah Sheikh. v. WAPDA and others (2001 SCMR 269) exactly under the similar circumstances,, allowed the appeal of the petitioner therein and reinstated him in service taking into consideration that the departmental proceedings initiated on the basis of criminal charges was not subsequently proved against him by the competent Court of Law and resulted in his acquittal.

9. For the foregoing reasons, the petition is converted into appeal and is allowed and the judgment of the Federal Service Tribunal, Islamabad, dated 25th June, 2001 is set aside. The appellant is reinstated in service. However, the period of his absence be treated as leave without pay. M.B.A./S‑252/S Appeal accepted.