2008 PLP (C (PLC(CS))

JEHAN ZAIB BURKI (MEMBER-IV).

The appellant was aggrieved with the impugned order, dated 3-6-2002 whereby the punishment of dismissal from service was awarded to him. He filed an appeal against the same which was accepted vide the impugned order, dated 1-3-2005. However, the period he had remained out of service/absent was directed to be treated as extraordinary leave (without pay) and the period of suspension was also directed to be treated as such. Aggrieved with the above order, the appellant filed the instant appeal before the Tribunal on 26-4-2006.

2. Briefly stated, a Criminal Case No.150, dated 18-4-2002 under section 409, P.P.C. Police Station Civil Lines, District Gujranwala was registered against the appellant and other co-accused. Simultaneously, a Charge-sheet No.971/PA, dated 25-4-2002 was also issued to the appellant whereby he along with his co-accused police officials were accused of cheating and forgery of documents during the course of trial of case F.I.R. No.411, dated 24-8-2001 under section 9C/C. N. S. A., Police Station Sabzi Mandi, Gujranwala. The appellant contends that since he had been arrested and was behind bars, neither the so-called charge-sheet nor the show-cause notice referred to above was ever served on him. He was not allowed to defend himself by grant of a personal hearing etc. The major punishment of dismissal from service was imposed on him. With regard to the criminal case registered against him, he has drawn attention to an order of the trial Court, dated 27- 1-2005 whereby he was acquitted of the charge under section 265-K, Cr.P.C. in line with the order of the Honourable Lahore High Court, Lahore, dated 23-12-2004 passed in respect of his co-accused Muhammad Mansha. His departmental appeal was accepted vide the appellate order, dated 1-3-2005. The Appellate Authority declared the defence plea of the appellant satisfactory. As such, the punishment of dismissal from service was set aside and the appellant was reinstated in service from the date of dismissal. However, the period spent by the appellant out of service was treated as extraordinary leave without pay.

3. It has been contended by the appellant that since his defence plea had been accepted as satisfactory, the treatment of the period he had spent out of service or of absence as without pay was uncalled for.

4. According to the appellant, he had filed a revision petition against the appellate order, dated 1-3-2005. The order, dated 16-11-2005 passed by the revisional authority was received by him on 22-4-2006 which had been received by the Commandant P.C. Farooqabad on 21-4-2006. To substantiate the above plea, the appellant has annexed relevant documentary evidence along with his instant appeal.

5. The respondents have resisted the appeal mainly on the point of limitation. It has been contended that the final order was passed by the Appellate Authority on 1-3-2005 whereas the instant appeal had been filed on 26-4-2006 which was grossly time-barred. With regard to the revision petition filed by the appellant, it has been argued that no right of revision was available to the appellant under the applicable law and rules.

6. Parties nave been heard and the relevant record has been perused.

7. On merits, the appellant had not only been acquitted by the trial Court in the criminal case registered against him but his departmental appeal against the punishment of dismissal awarded to him had also been accepted. The defence plea of the appellant had been found satisfactory by the appellate authority. In other words, the appellant was not found guilty of any of the charges/allegations levelled against him. It is not understood as to why then the period spent by him out 'of service consequent to his dismissal from the same has been treated as extraordinary leave (without pay). As a matter of fact, the appellant had been subjected to unnecessary hardship which is evident from the fact that he had been acquitted of the criminal charges levelled against him as also from the disciplinary proceedings which culminated in the award of the major penalty of dismissal to him. Under the circumstances, the minimum action required of the respondents was to grant to him all the back-benefits like arrears of pay etc. to which he was entitled on being declared innocent of the charges -- criminal as well as departmental - levelled against him. Instead of doing that, the period spent by him out of service had been treated as leave without pay which is not maintainable.

8. With regard to limitation, the revision petition submitted by the appellant was filed as being incompetent vide the respondents' order, dated 16-11-2005. The said order was received by him on 22-4-2006. The respondents have argued that the period of limitation in the case of the appellant should be reckoned from the date of appellate order i.e. 1-3-2005 as far as his service appeal filed before the Tribunal is concerned, this argument is not valid. In case there was no provision for filing revision petition, the appellant should have been informed straightaway as soon as the same had been filed. As things stand, he was informed of the filing of his revision petition on 22-4-2006. He had filed his instant appeal in the Tribunal within 4 days of the receipt of the said order. As such, the argument of the respondents with regard to limitation does not carry any weight and the same is overruled.

9. In view of the foregoing discussion, the appeal is accepted and the impugned order, dated 1-3-2005 to the extent of treating the period spent by the appellant out of service or on account of absence as extraordinary leave without pay is set aside. Resultantly, the appellant will be entitled to his full back-benefits and would be treated as on duty for the period he had remained out of service as well as the period spent by him in jail which was treated as absence. He will be entitled to the full payment of his pay and allowances for the above period along with any other benefits due to him.

10. There shall be no order as to costs. Parties be informed. H.B.T./52/PST???????????????????????????????????????????????????????????? ??????????? Appeal accepted.