2012 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act 1974 with the following prayer:-- "that the respondents may kindly be directed to release the amount and disburse the salaries in favour of the appellant in the interest of justice."

2. The relevant facts in small compass are that initially the appellant was appointed in the Civil Works Directorate as Junior Engineer, which was subsequently merged into Communication and Works department on 29-10-1999, and appellant submitted his arrival report to Secretary C&W Department on 3rd December, 1999. As per appellant he was implicated by the Anti-Corruption Police in a criminal cases pertaining to F.I.R. No.l-H/2004, F.I.R. No.l-H/2005 and arrested. It is the case of the appellant that after his release on bail, he become ill and caught by a serious disease of cancer and on account of which, he could not able to draw his salaries. He approached the authority for release of salaries but despite of demand by the Secretary C&W the Finance department failed to do the needful. He also approached the appellate authority for release of his salaries by means of representation, which remained unturned. Lastly while finding no other way out, he approached this Tribunal by filing instant appeal.

3. On the other hand, the respondents contested the appeal on legal and factual aspects by filing their replies.

4. We have heard the learned counsel of the parties and also perused the record with their assistance.

5. The record reveals that the appellant was arrayed in Crimes No.l-H/2004 and F.I.R. No.l-H/2005 and was also arrested in pursuance of the said crimes. It is the case of respondent that the Chief Secretary issued enquiry orders on the charge of fraudulent drawl and embezzlement of Government Funds i.e. Rs.18471995 and Rs.18549000. The respondent has also stated in reply that whereabouts of the appellant during all that period remained untraceable, hence "Show Cause Notice" could not be served upon him nor any final decision could be taken departmentally.

6. The record reveals that after arrest of appellant, enquiry was ordered by the then Chief Secretary and an Enquiry Committee comprising Mr. Abdul Karim Additional Secretary Home, Mr. Noor Baloch and Mr. Muhammad Sabir Accounts Officer Finance Department was constituted. It is painfully observed that in spite of inquiry order; no concrete step has been taken so for on the pretext that the whereabouts of appellant was not known. If the whereabouts of the appellant were not known to the enquiry Committee or to the concerned Department, in such, circumstances the publication could have been made in newspaper as envisaged under the provisions of Efficiency and Discipline Rules, 1992. Admittedly the appellant remained in judicial custody for a long period and he could have been served through Jail authorities for initiating departmental proceedings. It is settled principle of law that departmental and criminal proceedings are entirely different. One relates to the enforcement of criminal liability and the other is concerned with the service discipline.

7. It is admitted feature of the case that the appellant is a government servant and is under suspension till date. In such circumstances he is entitled for all the benefits under Fundamental Rule 53, which speaks as under:

"Fundamental Rule 53: A Government servant under suspension is entitled to the following payments: (b) In the case of Government servant under, other than that specified in clause (a), he shall be entitled to full amount of his salary and all other benefits and facilities provided to him under the contract of service, during the period of his suspension."

8. For the discussion made here-in-above we have left with no option but to accept the appeal. The respondents are directed to make the payment of salaries to the appellant. Parties are left to bear their own costs. H.B.T./2/BST Appeal accepted.