2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

These two connected appeals by leave of the Court, have been directed against the judgment, dated 28-4-2001, passed by the Federal Tribunal, Islamabad, whereby the appeal filed by Asif Ali, respondent, hereinafter called the respondent, against the order, dated 22-3-1998, of his dismissal from service passed by the competent authority was allowed and he was directed to be reinstated in service without back benefits. The Government of Pakistan through Secretary Ministry of Finance and others, hereinafter called the appellants, have assailed the judgment of the Tribunal before this Court in C.A. No.1781 of 2001 whereas Arif Ali, respondent, filed a cross-appeal (C.A. No.1782 of 2001) for grant of hack-benefits and these appeals involving common question of law and fact are proposed to be disposed of through this single judgment. The respondent, despite service has not turned up, therefore, he is proceeded against ex parte. The leave in these appeals, was granted vide order, dated 24-7-2001 as under:-- "(7) The contentions, inter alia, require consideration, therefore, leave is granted in Civil Petition No.2276-L of 2001 to reconsider the case in its entireity in order to ascertain whether findings of the Tribunal reversing the findings of the departmental authority were based on evidence on the record or have been based on conjectures or surmises. (8) Since leave has been granted in Civil Petition No.2276/L of 2001, therefore, leave is also granted in Civil Petition No.3222/L of 2001 of Asif Ali to consider that if order of his reinstatement in service is upheld, he could be declined in law the arrears of pay during the period he remained out of service in the facts and circumstances of the case."

2. The respondent was charged in the following manner:-- (1) While posted as Officer Incharge at National Savings Centre, Chunian and Pattoki during the period from 4-9-1992 to 7-4-1993 and from 8-4-1993 to 8-9- 1994 respectively, you committed criminal financial procedural irregularities as per details given against 1(A to C) in the enclosed statement of allegations. (2)(a) You misappropriated Rs.4,92,208.26 in various accounts while posted at National Savings Centre, Chunian. (b) You while posted at NSC, Pattoki defrauded Mr. Bashir Ahmed son of Muhammad Ismail, Mst. Shamim Bashir and Mst. Razia for Rs.4,15,000 (51500)+20,000, 80,000 respectively). (3) You exercised contributory' collaboration/connivance in the execution of parallel/private bank by Mr. Manzoor Ahmed Farooq DNSO at NSC, Chunian, due to which Rs.5,61,007.79 have been misappropriated. (4) You filed incorrect false declarations of assets held by you, your wife during the years, 1990, 1991, 1992 and 1993. (5) You, unauthorisedly entered your name in the attendance register of Schemes Section of RDNS, Lahore on 12-1-1995 and marked your attendance right from 12-9-1994 to 12-1-1995 at a stretch in spite of the fact that you were never posted in the said section. (6) You intentionally avoided, failed to comply with the directions of the competent authority regarding second medical opinion with reference to RDBS, Lahore's reminder dated 30-11-1994. (7) You made payment of Rs.1,00,000 against DSC Registration No.2435 on 23- 8-1994 at NSC Pattoki, without signatures of the purchaser. (8) You delayed the deposit of Rs.2,00,000 from NSC Pattoki to National Savings, Treasury from 20-7-1993 to 10-1994(sic) and thus, the amount of Rs.2,00,000 remained out of Government books for more than one year. (9) You are unauthorisedly absent w.e.f. 15-1-1995."

3. The three members Inquiry Committee appointed by the authorized Officer under Rule 5(1)(ii) of the Government Servants (Efficiency and Discipline) Rules, 1973, having made a detailed scrutiny of the matter, found the respondent guilty of the charges and the competent authority in the light of report of Inquiry Committee and recommendations of the Authorized Officer, passed the order of his dismissal from service. In addition to the departmental proceedings for the charge of misconduct, the respondent was also proceeded against for criminal charge of misappropriation of the Government money in which he was subsequently, acquitted under section 265-K, Cr.P.C. by the Special Judge (Central). The Tribunal on the basis of acquittal of the respondent from criminal charge, having allowed his appeal set aside the order of his dismissal and directed his reinstatement in service.

4. The learned Deputy Attorney-General has contended that the acquittal of the appellant in the criminal 'case on the basis of his exoneration from the criminal liability by the Investigating Officer, could not be a valid reason to hold that the conduct of respondent as an employee of a financial institution, was not prejudicial to the service discipline and good order or it would not be considered adverse to the business interest of the institution to be treated an act falling within the definition of misconduct in terms of section 2(a) of the Government Servants (E&D) Rules, 1973. The learned D.A.-G. added that apart from financial irregularities and misappropriation, of certain amounts the appellant by using the source of business of the Organization, was also running a parallel financial institution in the private sector for his personal benefit and gain in violation of Government Servants (Conduct) Rules, 1964 and having caused heavy financial loss to the Government Organization has committed gross misconduct.

5. The expression misconduct and criminal misconduct have different connotations and in the light of definition of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973 it is not necessary that misconduct must carry the clement of criminal liability but criminal misconduct essentially constitutes misconduct. The expression misconduct in the Government Servants (E&D) Rules, 1973 has been defined as under:-- "misconduct" means conduct prejudicial to good order to service discipline or contrary to the Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant;" The "criminal misconduct" is defined in section 5 of the Prevention of Corruption Act, 1947 as follows:-- "

5. Criminal misconduct.

(1) A public servant is said to commit the offence of criminal misconduct: (a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or (b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or fora consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely to be concerned in any proceeding or business transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (e) For Central Government employees only.

If he, or any of his dependents, is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income."

6. The prosecution before a regular Court for the charge of criminal misconduct, and the departmental proceedings for the charge of misconduct being governed by different laws and the rules of procedure, are entirely different. In the present case, in addition to the departmental proceedings under Government Servants (E&D) Rules, 1973, the criminal law was also set at motion against the respondent for the charge of criminal misconduct and in view of the settled law that acquittal from criminal charge may not defeat the departmental punishment, the acquittal of respondent by the criminal Court either on technical ground or on merits would not ipso facto extinguish the charge of misconduct against him in the departmental proceedings. The standard of evidence and the method of proving the charge of misconduct and a criminal charge before a regular Court is not the same therefore, the acquittal of a person from the charge of criminal misconduct by a criminal Court may be a relevant factor to ascertain the nature of misconduct in the departmental proceedings but may not be as such a reason to exonerate him from the charge of misconduct under Government Servants (E&D) Rules, 1973.

7. The misconduct under Government Servants (E&D) Rule, 1973, means conduct prejudicial to the good order of service discipline or of unbecoming of an officer and a gentleman and contrary to Government Servants (Conduct) Rules, 1964 whereas the charge of criminal misconduct is based on the clement of mens rea and criminal intent. The criminal Courts in the light of strict observance of law of evidence, have to judge the admissibility of the evidence to hold a person guilty of the criminal charge, but in case of the charge of misconduct, the departmental authorities are not required to follow the technicalities of law. In the present case, the Inquiry Officer as well as authorized officer having considered the evidence brought on record, have held the respondent guilty of charge and consequently, his acquittal from the criminal charge for want of insufficient evidence would not be a valid ground to hold that he was also not guilty of the charge of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973. This is settled proposition of law that departmental proceedings for the misconduct and criminal prosecution in the same transaction can proceed simultaneously but the acquittal in the criminal case may not necessarily effect the result in the departmental proceedings and perusal of the record would show that the Tribunal without creating distinction between the criminal misconduct and misconduct and the nature of proceedings before the different forums, decided the appeal before it merely on the basis of judgment of the criminal Court. It may be pointed out that unless the essential elements and component of a criminal offence are proved through the evidence, direct or circumstantial, the conviction is not possible whereas, in case of misconduct, the departmental authorities may not follow the complicated procedure of criminal Courts and the rule of appraisal of evidence rather such authorities in the light of general principle of law may determine the question of guilt or innocence of a person by giving him a fair and adequate opportunity of hearing in accordance with law.

8. The examination of the record would show that the charge of misconduct against the respondent was based on the allegation of corruption and misuse of office for personal gain and in support thereof direct evidence was brought on record but the Tribunal for misconception of law, without taking into consideration the said evidence, proceeded to set aside the order passed by the competent authority on the basis of judgment of criminal Court.

9. In the light of foregoing reasons, the impugned judgment is set aside and Civil Appeal No.1781 of 2001 is allowed, whereas Civil Appeal No.1782 of 2001 is dismissed. There will be no order as to costs. M.H./G-13/SC Order accordingly.