2002 PLP (C (PLC(CS))

ABDUL MAJID KHANZADA (CHAIRMAN).--‑The present appeal arises out of the following facts:‑‑ No That the appellant was Sub‑Inspector of Police in the year 1980Wnd was posted as S.H.O., Police Station Umer Kot. One Talib Shah was posted on the same police station as Assistant Sub‑Inspector. In the month of February, 1980, on behalf of the State A.S.I, Talib Shah has lodged F.I.R. under section 56(8) of the"Custom Act against one Akbar and Abdul Aziz for smuggling Indian Silver weighing 5 Kilograms and 215 grams. The said F.I.R. was lodged at Police Station Umer Kot. Without disclosing identity of the concerned quarters, reportedly appellant and Talib Shah were pressurized to release the accused but they refused to budge an inch. Resultantly Crime No.46, 1980 was registered at Police Station Umer Kot with the allegations that actual recovery of silver was 15/16 kilograms but shown recovery was 5 kilograms and 214 grams. Investigation was made and case was challaned before the Special Judge Anti‑Corruption. The appellant and said A.S.I Talib Shah were acquitted by the Court of Special Judge Anti‑Corruption under section 249‑A, Cr.P.C. vide judgment dated 19‑9‑1982 and the said judgement is available on our record, at page

23. That on account of involvement of the appellant in criminal case alongwith A.S.I., Talib Shah, both were dismissed from service. The appellant was dismissed vide order, dated 30‑4‑1980. That the appellant after acquittal by the Court of Special Judge Anti -Corruption was re‑instated in service vide order, dated‑27‑4‑1986 passed by the respondent No.1. In the same order his break in service was treated as leave without pay. Said order is available on our record at page

33. Subsequc:nth‑ A.S.I.. Talib Shah was also re‑instated on 20‑7‑1986. In the year 1993, A.S.I. Talib Shah represented for improvement of his seniority treating his period of broken service, as spent on duty. The said representation was accepted by the respondent No.1 vide its order dated 18‑5‑1995. His period of broken service was treated as spent on duty and his entitlement to get all service/monetary benefit for the above period i.e. 20‑4‑1980 to 20‑7‑1986, were restored. That the appellant also represented before the respondent No. 1 for the same relief i.e. improvement of his seniority and grant of pro forma promotion from the dart: his batchmates were promoted., his request was regretted vide order, dated 11‑6‑1995, without recording any reason for rejecting the claim of the officer. The order, dated 11‑6‑1995 is at page 35 of our record. 'That the appellant filed review petition before the respondent No. 1 but the same was against rejected vide order, dated 18‑2‑1999 without assigning any reason. That under the circumstances appellant has filed the present appeal with the prayer to quash both the orders dated 11‑6‑1995 and appellate order, dated .18‑2‑I99`t and further prayed that the respondent No. 1 be directed to treat the broken period of service of the appellant with effect form 30‑1‑1980 to 27‑4‑1986 spent on duty and his seniority be fixed alongwith his batchmates in rank of Sub.‑Inspector, Inspector and consequential relief of bringing his name on List 'F as confirmed Inspector of Police and further promotion to the post of Deputy Superintendent of Police alongwith his batchmates. Against the case set up by the appellant, respondents had filed written statement which iy brief, concise and of evasive nature, only difference which has been pleaded by the respondents in the case of the appellant and Talib Shah is that appellant had been superseded while Talib Shah was not and moreover the appellant had adverse record of service. The respondents have not mentioned as to when the appellant was superseded and for which post he was superseded. They have also not mentioned as to what is tile adverse record of service at the credit of the appellant and moreso to which year it belonged and whether it was communicated to him or not. It is settled position of law as held in the case of: Muhammad Farooq v: Province of Punjab reported in PLD 1987 SC 271. "If the adverse remarks are not communicated or if communicated, there is no record of their having been communicated and acknowledged, by the concerned Officer, such adverse remarks should be ignored for purpose of promotion and pre‑mature retirement. " We have not been apprised of any adverse record by the respondents at the time of hearing nor it was filed alongwith the written statement, what to speak of its communication, on the other hand, A.A.‑G., was directed to go through the personal record of the appellant which was summoned and after verification of the record submit record in respect of the adverse report. It will be worthwhile to mention here that learned A.A.‑G. after thorough verification of the personal file of the appellant, frankly conceded that there is absolutely no adverse remarks available in file against the appellant for which he had suffered so much for none of his fault. We had already taken the view in Service Appeal No.99 of 1997. Itaza Muhll13Ri al v. Province of Sindh and others decided on 15‑8‑1998: "That the minor penalty would not come in the way of officer at e time of his promotion." The said judgment was challenged by the Government of Sindh before e Supreme Court of Pakistan in Civil Petition for Leave to Appeal No.713‑‑K of 1998 but the Honourable Supreme Court of Pakistan refused to grant the leave vide its order, dated 28‑1‑1999. We have heard the learned counsel for the parties and perused the record with their assistance. Apart from the legal aspect of the case, which is already attended to by us, the point for determination before us is that both the officers i.e. appellant and A.S.I. Talib Shah were dismissed from service on one and the same charge. They faced the criminal proceedings in one and the same case and were ultimately acquitted. They were re‑instated in service on one and the same consideration. Then why A.S.I, Talib Shah was treated differently than the appellant in grant of consequential benefits in pursuance of his re‑instatement. We have very specifically asked this question from the learned Assistant Advocate‑General Sindh who has candidly submitted, that except the averments made in the written statement he has no other reason to submit. We have already stated above that there is no adverse record, penalty or any adverse order passed by the Departmental Authority against the appellant, produced before us. Therefore, under such circumstances this is not a sufficient reason to treat the appellant differently than A.S.I. Talib Shah because it would amount to discrimination which is not permissible under specific provisions of the Constitution. We are holding time and r again in different cases that after the legislation of section 24‑A in the General Clauses Act, it is bouden legal duty of the Departmental Authority as well as Appellate Authority to record its reasons for exercising the jurisdiction vested in them while dealing with the cases of Civil Servants in respect of their terms and conditions of service. We found no reason in the original order as well as the order passed on review while disposing of the same. Such practice is deplored. It is expected in future that departmental as well as Appellate Authority will be giving reasons for exercising their jurisdiction in passing the orders in respect of terms and conditions of the service of the Civil Servants. Moreover, it will be beneficial for this Tribunal while determining the validity and legality of the order, impugned before it. It will further add to the convenience of the learned Law Officer who have to defend the order of the Departmental Authorities impugned before this Tribunal. In the light of what is stated above we would allow this appeal in the terms of the prayers with no order as to costs. Given under our hands and the Seal of this Tribunal this 30th day of May, 2000. H.B.T./59/K(Sr.Trib)Appeal allowed.