2010 PLP (C (PLC(CS))

SHEIKH HAKIM ALI, J.

A judgment/Order of Punjab Service Tribunal, Lahore passed in Appeal No. 632 of 2005 (Muhammad Zameer v. D.I.-G. Police and another) refusing to entertain a fresh appeal on 4-5-2005, filed by Muhammad Zameer, present appellant was challenged through C.P.L.A. No.1882 of 2005, in which leave to appeal was granted by this Court on 27-7-2006, to consider the question as to whether subsequent appeal against on order passed by the Competent Authority, declining to reinstate the appellant was maintainable before the Service Tribunal or not?

2. Tersely the facts of the case as found from the record and narrated by the learned counsel for the parties are that Muhammad Zameer, the present appellant had joined the service of Police Department as Plumber in Punjab Police Recruiting Centre, D.G. Khan but afterwards was adjusted as Electrician. On 5-7-1999 an F.I.R. was lodged against the appellant, his brother as well as three others, for the murder of one Ansar Abbas. This registration of criminal case had led to the issuance of Show-cause notice to the appellant, which ultimately culminated into his removal from service on 14-4-2000 by the order of D.I.-G. Police. Appellant's Departmental appeal even before Inspector General of Police could not succeed on 31-7-2001. Aggrieved from this order of termination he knocked the door of Punjab Service Tribunal through the Service Appeal No. 1775 of 2001 but without any avail. It is pertinent to point out that order of termination of service of the appellant dated 14-4-2000, was passed by D.I.-G. Police, when appellant was still not convicted in the aforementioned criminal case. The Punjab Service Tribunal had also dismissed the appeal of the appellant on the sole ground that appellant was convicted in the above noted case by the learned Additional Sessions Judge, Dera Ghazi Khan, (which conviction was announced on 20-272001), therefore, his appeal was also dismissed by the Punjab Service Tribunal on 15-10-2002. Against the conviction and sentence awarded in the above mentioned case, the appellant had filed a Criminal Appeal No.144 of 2001 before the learned Division Bench of the Lahore High Court, Multan Bench from where he got acquittal through judgment dated 20-10-2004. Upon this happening, a fresh departmental appeal was filed by the appellant before the Inspector General of Police Punjab, Lahore on 22-12-2004, which was not responded with any positive or negative order within the prescribed period, so disappointed by this act, the appellant filed a fresh Appeal bearing No.632 of 2005 before Punjab Service Tribunal, which was dismissed on 4-5-2005 through the impugned order holding therein that the Service Tribunal had got no power to entertain a fresh appeal with regard to a matter decided earlier. Consequently, leave to appeal was granted by this Court as noted above.

3. Learned counsel for the appellant submits that the appellant was terminated on the basis of sole ground of conviction having been ordered against him but that conviction having been set aside through acquittal by the learned Division Bench of Lahore High Court, Multan Bench, the appellant was thereafter entitled to be reinstated in the service, by accepting his fresh appeal. In such an event, the Punjab Service Tribunal should have entertained the fresh appeal of appellant as the ground upon which service of the appellant was terminated had not remained in the field.

4. Replying to the arguments, respondent's counsel has submitted that according to section 4 of the Punjab Service Tribunals Act 1974, one appeal only is provided, therefore this fresh appeal by the appellant was rightly dismissed by the Punjab Service Tribunal on 4-5-2005. Removal of appellant had become the past and closed transaction, therefore it having attained finality, fresh appeal was not competent. Further submits that acquittal from criminal case cannot bar the commencement of disciplinary proceedings against a civil servant. Cites 2005 SCMR 824 (Executive Engineer and others v. Zahid Sharif) and PLD 1985 SC 134 (Deputy Inspector of Police Lahore and others v. Anis-ur-Rehman Khan) to support his contentions.

5. We have considered the arguments of the learned counsel. It has been noticed by us that dismissal of appellant from the service of Police Department was passed upon the sole ground of his conviction in the aforementioned criminal case. The aforementioned conviction having been set aside from the learned Division Bench of the Lahore High Court, Multan Bench, the sole and lone ground had evaporated and the stigma had extinguished. As noted in the earlier factual part of this judgment, the appellant was terminated from service of Police Department on 14-4-2000 from Inspector General of Police, Punjab on account of his conviction in the criminal case. The Police Department or the Punjab Service Tribunal had not terminated the service of appellant on the basis of initiation of any disciplinary proceedings against the appellant. No such reasoning was adduced for dismissal of the appeal of the appellant by Punjab Service Tribunal in its order passed in an earlier appeal. Therefore when the conviction passed by learned Additional Sessions Judge, Dera Ghazi Khan, was set aside, a fresh cause of action had arisen to appellant. It may be noted that the removal of appellant on 14-4-2000 on the basis of conviction could not remain in the field when the conviction itself had not attained the finality from the appellate Court i.e. from the learned Lahore High Court. With the passing of judgment of acquittal in favour of appellant, the judgment of conviction having lost its validity, ground of removal, was and could be reconsidered through the fresh appeal. Therefore the fresh appeal was competent before the', Punjab Service Tribunal.

6. There is yet another aspect of the case also. The appellant had filed fresh departmental appeal before the Inspector General of Police Punjab after his acquittal, which was not decided and responded within 90 days. This fact had also the effect of creating fresh cause of action in favour of appellant to file a fresh appeal before the Punjab Service Tribunal. The order of removal accordingly could not be considered a final order of removal as it was founded upon the foundation of conviction, which itself had proved invalid due to the delivery of final judgment of acquittal from the learned Divisional Bench of the Lahore High Court.

7. Accordingly we accept this appeal and remand the case to the learned Punjab Service Tribunal to decide the Appeal bearing No. 632 of 2005 considering it to be pending with it, on merits. S.A.K./M-71/SC Case remanded.