2002 PLP (C (PLC(CS))

ABDUR REHMAN KHAN, J.‑‑‑The appellant‑while employed as Constable in Punjab Police was given the following show‑cause notice:‑‑ "You, Constable Rashid Mahmood No. 64 (under three) have been caught red‑handed alongwith pistol and four cartridges alive by the Police Station Mughalpura. You were arrested and case F.I.R. No.232 of 1991, under section 13/20/65, Arms Ordinance was also registered. You were challaned in the case. But you were acquitted from the Court on technical grounds. The judicial decision does no bar to take action against the constable because you are criminal minded police official. You are unfit to be retained in service". His reply to the show‑cause notice was that he was acquitted in the criminal case under the Arms Ordinance which was basis of the show‑cause notice as that was malicious and motivated because it was registered at in, instance of his enemy. He was then called in orderly room by the Superintendent of Police and after hearing him his written and verbal explanations were found unsatisfactory as it was held that lie was acquitted in the criminal case on technical grounds/benefit of doubt which did not debar the Departmental Authority to initiate departmental action against him. He was, therefore, found unfit to be retained in, service and was, accordingly, discharged from service under Police Rule 12‑21 as he had by then not rendered three years' service. His departmental appeal/representation failed and so he approached the Service Tribunal in appeal for his redress. This service appeal was dismissed through the impugned,: judgment dated 7‑10‑1998.

2. Leave to appeal was granted in these terms:‑‑ "In view of the dictum laid down in the case of Malik Azharul Haq v. Director of Food, Punjab, Lahore (1991 SCMR 209), leave to appeal is granted to consider the effect of dismissal of the petitioner from service after he was acquitted of criminal charge. "

3. Learned counsel appearing for the appellant argued that on acquittal of the appellant from the criminal charge by competent Court the very basis for his discharge from service was washed away as it was solely founded on the criminal charge. In support of his contention the learned counsel relied on the rule laid down in the following cases: ‑‑ (i) 1991 SCMR 209 (Malik Azharul Haq v. Director of Food, Punjab, Lahore and another). (ii) 1998 SCMR 1993 (Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar arid 2 others). (iii) 1985 SCMR 1483 (Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore). (iv) 2000 PLC (C.S.) 331 (Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others). (v) 1994 SCMR 247 (Province of the Punjab v. Abdul Aziz Qureshi). In order to appreciate the dictum laid down in the cited cases it will be proper to refer in brief to the judgment of the criminal Court acquitting the appellant of the charge. In the criminal case the appellant was tried for offence under section 13 of the Arms Ordinance on the allegation that he was found m possession of 30 bore unlincensed pistol. The. learned trial Court acquitted him of the char holding that the presence of the witnesses to the recovery memo. at the time of recovery was doubtful; that the statements of these witnesses inter se and qua the Investigating Officer are inconsistent and contradictory and, therefore, not reliable. The conclusion was:‑‑ "I am of the view that the prosecution case is doubtful and has not proved its truthfulness. I, therefore, give the benefit of doubt to the accused and acquit him under section 245, Cr.P.C." It is to be noted that summary police proceedings instead of general police proceedings as provided under Punjab Police (Efficiency and Discipline) Rules, 1975, were conducted against the appellant in respect of the said criminal charge. No other misconduct on the part of the appellant or i adverse proceedings/report against him could be shown or referred. Although in the discharge order the appellant was dubbed as inefficient and unfit to be retained in service but no specific example was shown to prove inefficiency and unfitness. Therefore, the argument that the sole basis for the charge was knocked out by the acquittal of the appellant in the case could not be controverted. It is admitted position that no departmental inquiry was conducted in the matter and naturally no material could be collected and no evidence could be examined to independently prove the charge under section 13 of the Arms Ordinance for keeping unlicensed pistol. In the case reported (Malik Azharul Haq v. Director of Food, Punjab, Lahore 1991 SCMR 209), O & M Establishment Manual, Vol.1 (revised) (Chapter V at page 546) the following guidelines have been laid down:‑‑ "I am directed by the Governor of West Pakistan to address you on the subject noted above and to say that the judgment of a Criminal 'Court is not necessarily decisive .as regards departmental or disciplinary action. A prosecution may fail for technical reasons; sometimes the Court notes the facts as suspicious, but gives the accused the benefit of the doubt,, and sometimes a prosecution fails for the patent reason that witnesses have been brought over. In all such cases it may well be held that the circumstances are so suspicious that the Government servant can no longer be safely trusted; or it may be held that, though the official is acquitted on the main charge, facts brought to light in the course of the trial show defects of character or disregard of proper procedure which would justify the taking of departmental action against the accused. But departmental action should not follow a prosecution which has failed for the sole reason that witnesses have been brought over unless the Court itself has noted that the witnesses have been influenced.

2. Frequently, however, the above elements are absent, e.g. when an official is tried on a definite charge and is acquitted either in the original Court of on appeal and there is no question of the acquittal being mercy on technical ground of‑evidence having been suppressed. In such cases, and when no facts are established in the course of the trial that would justify action being taken for disregard of departmental rules, the decision of the Court on the facts should be accepted and no departmental action should be taken.

3. Similarly when the charge is dismissed without any suggestion by the Court that conduct of the accused has been suspicious or any indication that it is merely giving the accused the benefit of doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should betaken. " In absence of evidence examined by the departmental authority, the' above guidelines is to be adhered to and is to be kept in view while deciding the dispute of the present nature.. The same principle was reiterated in Dr. Muhammad Islam v. Government of N.‑W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others) 1998 SCMR 1993. It was held in Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore 1985 SCMR "Admittedly in the present case the order of removal, as the show cause notice clearly reveals, proceeds upon the basis of rule 9 of the Efficiency and Discipline Rules. However, it does not require any elaborate argument to show that in case the sentence is set aside and accused officer. is acquitted, the very basis on which such order of removal from service‑stands, would disappear. The result of such an event would be that the order of removal itself will render ineffective and liable to be set aside. Such being the legal consequence a void order of removal could not have been propped up by an additional ground, as done by the learned Service Tribunal, for the simple reason that such additional grounds found in support of the removal order would violate the rule of natural justice, besides being violative of the mandatory requirements of the Efficiency and Discipline Rules. In the judgment reported as (Province of the Punjab v: Abdul Aziz Qureshi 1994 SCMR 247), the rule is to the same effect as is clear from the following observations:-- "It will be noted that the basis of recommendation for removal from service was that a 'case is under trial in the Anti‑Corruption Establishment, Multan. This very basis was knocked out by the judgment of acquittal which shows that the case was started on the application of the students. The Assistant Commissioner enquired into the matter and reported that the application was moved by the students on the investigation of two instructors, one of whom was trying to become officiating Principal. After going through the said report and the accompanying documents the Assistant Commissioner held that the allegations were frivolous. The respondent was, however, tried as the case stood already registered. Muhammad Adam complainant appearing as P.W.7 in the Court of Special Judge, Anti‑Corruption, admitted that he himself not audited the account and the application was made by him on the information by Mudassar and Ghulam Farid (peon and clerk) who were admittedly removed from service by the respondent‑Principal for misconduct. The judgment of the learned Special Judge, leaves no slur on the conduct of respondent and rather shows that he was made to suffer from extraneous reasons. The very basis of the recommendation for removal from service having been knocked out, the appeal was rightly allowed by the learned Tribunal." As the order of discharge from service of the appellant is based on misconduct, therefore, even if the petitioner had not completed three years' service, he could not have been discharged from service under Rule 12.21 of the Police Rules on the basis of following rule laid down in (Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz‑ul‑Haq (1997 SCMR 1552), which has also been reiterated and reproduced in judgment (Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337):‑‑ "Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is temporary employee or a person employed on contract basis or a probationer, he is entitled to fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in which Waheeduddin Ahmad, J. has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct."

4. There is no denial the fact that if departmental authority had held the petitioner guilty as a result of regular inquiry, if had been conducted by them, then the petitioner could not plead that having been exonerated by the criminal Court, the departmental authority was not competent to discharge/remove him from service. However, as pointed out earlier, the departmental authority failed to conduct any regular inquiry against the appellant, and it had, therefore, no basis to hold the appellant guilty of misconduct.

5. In view of the above factual and legal position, we set aside the impugned judgment of the learned Punjab Service Tribunal and direct that the appellant be reinstated in service with back benefits for the period he had not been gainfully employed elsewhere. Parties would bear their own cost. Q.M.H./M.A.K./R‑34/S Appeal allowed.