2004 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER). --Muhammad Anwar appellant was a Patwari in the Evacuee Trust Property Board (ETPB). He was caught flagrante delicto by a raiding party of the Anti-corruption Department on 23-7-1995 and an amount of Rs.1000/- received by him from complainant Mohsin Khan as bribe was recovered from him. On 14-11-2001 he was served a show-cause notice under the provision of Removal from Service (Special Powers) Ordinance, 2000. It was stated in the notice that he had received illegal gratification from Mohsin Khan for which he was arrested by the Anti-Corruption Department. It was also stated that he .had a persistent reputation of being corrupt. The, appellant submitted his reply to the show-cause notice in which it was maintained by him that he had been acquitted on the charge of accepting illegal gratification by the Special Judge (Central) since the case against him was false and the complainant Mohsin Khan was sentenced to three years rigorous imprisonment (R.I.) under section 193, P.P.C. According to him the allegations levelled against him were without any basis. Mr. Shahdid Nazir, Secretary of ETPB was- not satisfied with the explanation of the appellant. On 8-12-2000 he passed an order by which appellant was compulsorily retired from service. Aggrieved by the order of his compulsory retirement the appellant filed a departmental appeal on 14-1-2002 which was rejected on 7-5-2002. Hence the present appeal filed under section 4 of the Service Tribunals Act 1973. It is prayed by the appellant that the order of compulsory retirement be set aside and he be reinstated into service with back-benefits.

2. Alongwith appeal the appellant has filed an, application for suspending the operation of the impugned order of compulsory retirement.

3. The appeal is resisted `by the respondents.- It is. stated that the appellant was arrested by Anti-Corruption Department and tainted money paid to him by the complainant Mohsin Khan was recovered from his possession. According to the respondents the charge of corruption, was ,proved, against the appellant. Another objection has been taken that the appeal is time-barred.

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

5. The impugned order of compulsory retirement was passed against the appellant on 8-12-2001. This order was conveyed to the appellant on 31-12-2001. The departmental appeal was filed by him within the statutory period of 15 days on 14-1-2002. Thus the departmental appeal was filed well within time. The departmental appeal was rejected on 7-5-2002. The rejection order was communicated to the appellant on 13-6-2002 whereas the appeal was filed on 12-7-2002. As the appeal was filed within 30 days from the date the rejection order was received by the appellant, therefore, there is no force in the objection of the respondents that the appeal is time-barred. In the circumstances the objection of the respondents with regard to limitation is overruled.

6. On merits we find that the alleged incident of acceptance of illegal gratification by the appellant had taken place on 23-7-1995 but the show-cause notice was issued on 14-1-2002. It is not explained by the respondents as to why for more that six years no departmental action was taken against the appellant. It is correct that for the departmental action there is no period of limitation but the rules of justice and fairplay require that such an action should be prompt and without unnecessary delay. The delay of more than six years for initiating departmental proceedings is very long 'and for that reason we find force in the argument of the learned counsel for the appellant that the appellant was prejudiced by this inordinate delay. There is also, force in his further argument of the learned counsel that the proceedings were not bona fide if not mala fide. Had the proceedings been bona fide, the Department would not have kept silent for more than six years.

7. The appellant was tried by the Civil Judge (Central) and was acquitted under section 249/A of Cr.P.C-. vide judgment dated 30-9-1999 the respondents again took more than two years after the pronouncement of this judgment to issue a show-cause notice to the appellant. When the appellant was acquitted by the Criminal Court and if the respondents were not satisfied with the judgment of that Court they could have appealed against that judgment in the High Court. They did not do so. We have put a question to the learned counsel for the respondents to explain as to why disciplinary proceedings were initiated against the appellant more than two years after his acquittal but he had not been also give us any satisfactory reply. This unexplained delay of more than two years between the acquittal of the appellant by the Criminal Court date of show-cause notice is fatal to the case of the respondents.

8. The appellant was not charge-sheeted or was not served with a show-cause notice immediately after the alleged occurrence. The show cause notice was issued to the appellant for the first time on 14-11-2001. The first charge mentioned in the show-cause notice was the same on which the appellant had been tried by the Special Judge (Central) and acquitted on 30-9-1999. The Criminal Court not only acquitted the appellant but sentenced the complainant Moshin Khan to three years R.I. under section 193 P.P.C. for giving false statement. "The competent Court had held that Mohsin Khan had falsely implicated the appellant in a case of corruption. In view of this clear finding of the Criminal Court the respondents were not justified to issue a show-cause notice to the appellant with this charge that he had received illegal gratification from said Mohsin Khan. It is correct that criminal proceedings have no nexus with the departmental proceedings but this is a peculiar case in which the complainant was sentenced to imprisonment for giving false statement against the appellant. The findings of the Criminal Court should not have been taken lightly by the respondents. It had come to their notice that Mohsin Khan had implicated the appellant in a false case. As observed above there was no ground available to them for issuing a show-cause notice to the appellant. It is probably for this reason that the respondents took a very long time in issuing the show-cause notice to the appellant on the charge of corruption.

9. The second charge contained in the show-cause notice dated 14-11-2001 is "by reasons of above, you have 'a persistent reputation of being corrupt". A plain reading of this charge shows that it was linked with the first charge which related to acceptance of illegal gratification by the appellant from complainant Mohsirr Khan. On a single incident the respondents were not justified in levelling this charge against the appellant that he had a persistent reputation of being corrupt. Surprisingly Mr. Shahid Nazir, Secretary while recording his findings against the appellant on 8-12-2001 did not mention anything about second charge. He restricted himself to the first charge of acceptance of illegal gratification meaning thereby that he had no material before him on which he could hold that the appellant had a persistent reputation of being corrupt.

10. For the above reasons we hold that this is a case in which a penalty awarded to the appellant cannot be sustained. The result is that the appeal is accepted and the impugned order is set aside. The appellant is reinstated into service. The intervening period shall be treated as E.O.L.

11. There shall however, be no order as to costs. Parties be, informed. H.B.T./223/F.S.T Appeal accepted.