1990 PLP (C (PLC(CS))

"Your application dated 10-9-1988 is filed in view of the fact that the competent authority has already dismissed your revision petition for reinstatement in service." Treating the above I.-G.P's letter as the final order, the appellant has filed the present appeal on 29-9-1988, as a second round of litigation in respect of the same subject-matter. We heard the arguments of the learned counsel for the parties. With their assistance, we also carefully went through the relevant record. The preliminary legal issue that has engaged our attention is that this appeal is barred by the principle of res judicata. It is an admitted position that following his dismissal from service the appellant had filed service Appeal No. 42 of 1979 which was dismissed by this Tribunbal by its judgment, dated 8th June, 1980. It is also not denied that the said judgment was not challenged in appeal before the Supreme Court. In other words the appellant accepted the verdict of the Service Tribunal inasmuch as that his dismissal from service was legally correct. Thus the chapter stood closed. The present appeal was obviously a fresh attempt on the part of the appellant to reopen the same matter which as pointed out above, had already attained finality. However, the argument of the learned counsel for the appellant was that with appellant's acquittal in the murder case, fresh cause of action accrued to him and therefore he was within his right to agitate for his reinstatement again. We are sorry we cannot endorse this view. The decision of the criminal case had nothing to do with the penalty of dismissal imposed upon the appellant as a result of departmental action. If the views expressed by the appellant's learned counsel carried any force, then the departmental action which was initiated almost simultaneously with institution of the criminal case in the Court, should have been postponed until after decision of the said criminal case or in the alternative the appeal pending before the Service Tribunal had to be stayed until after disposal of the said case. In fact the argument of the pendency of the criminal case was raised before the Service Tribunal in the previous appeal but the same was disposed of by the Tribunal as under:-- "Lastly, it was contended that the case was still sub judice and departmental action could not be taken till the disposal of the case. We are unable to agree with this contention. There is nothing in law that departmental action is barred in case a criminal prosecution has been lodged. No authority has been quoted to support the contention. On the contrary there is an authority in the case of Shafaqat Mahmood Lodhi v. Accountant-General, Lahore P L D 1968 Lah. 786 which was followed by the same High Court in the case of Nazir Ahmad v. Government of West Pakistan and others reported in Civil Service Law Cases (1972-77) at page

110. Furthermore even in case of acquittal by a Criminal Court departmental action can be taken in suitable cases as has been held in the cases of Sardar Ali Bhatti v. Pakistan reported in P L D 1961 Lah. 664 and Anwar Hussain v. Government of West Pakistan reported in 1969 S C M R

332. So the principle of double jeopardy is not applicable in such case." We are in complete agreement with the views of our predecessors as reproduced above. We may add that the departmental proceedings which are of civil nature can be initiated and finalised independently of the criminal case pending in the Court. Furthermore the yardstick applied in appreciation of evidence produced in departmental proceedings is not so strict as in the criminal case. Consequently the result of one proceeding may not be the same obtained in the other proceedings. In other words the civil servant who is exhonerated in the Court's case may not necessarily be cleared from the charge in the departmental proceedings. Thus since the departmental action is not dependent on the result of the criminal case, the judgment of acquittal in such case would not have the effect of reopening the departmental proceedings which had otherwise stood closed, nor fresh cause of action would accrue from such judgment. Assuming for the sake of argument that the appellant's acquittal in the murder case provided him fresh cause of action and hence fresh opportunity to agitate for his reinstatement, yet his present appeal is not free from legal difficulties. The judgment of his acquittal is dated 23rd December, 1987. No doubt the appellant immediately thereafter represented to the I.-G.P., Sindh for his reinstatement on 26-1-1988. But his said representation was admittedly rejected on 14-6-1988. Instead of challenging that order before this Tribunal within 30 days, the appellant preferred to file review petition again before the same authority namely I.-G.P., Sindh. Even if the said order was regarded as the order passed by the original authority, though it was not, still the appeal from the said order of the I.-G.P. lay before Home Secretary and not before I.-G.P. himself in the form of review petition. As such mandatory requirement of proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973had remained unfulfilled. Therefore the present appeal is not legally maintainable also on this ground. In any case the I.-G.P's letter dated 1&9-1988 addressed to the appellant cannot be treated as the I.-G.P's order. It only conveyed information to the appellant that since his revision petition for reinstatement had already been rejected by the competent authority, his application dated 10-9-1988 was filed. As mentioned above the appellant's representation for his reinstatement was rejected at the level of the I.-G.P. by order dated 14-6-1988. If the said order was considered as final appellate order, the present appeal was obviously badly time?barred. In the end we would like to point out that even if the appellant had successfully crossed the above legal hurdles, his case for reinstatement was not bright on merits. In the judgment of the Service Tribunal delivered in the appellant's previous appeal, his dismissal from service was upheld not only on the charge of murder but also on the ground of misuse of Government vehicle. As for the murder charge it is clear from the judgment of the 1st Additional Sessions Judge, Karachi that the appellant's acquittal was not free from blemish. That is to g say he was not acquitted honourably, but he was rather let off, by giving him benefit of doubt. Surely such acquittal would not entitle the appellant to his reinstatement in service. For above reasons, the appeal has absolutely no force. As such it is dismissed with no order as to costs. M.Y.H./214/Sr. S??????????????????????????????????????????????????????? Appeal dismissed.