2009 PLP (C (PLC(CS))

AZHAR SALEEM BABAR (MEMBER).

The above titled appeal has been addressed against the order, dated 7-5-2003, whereby the departmental appeal filed on behalf of the appellant was partially accepted.

2. The facts making background of the instant appeal are that the appellant has been serving as constable/driver in the Police Department. The appellant was ousted from service vide order, dated 26-8-1999 by the Senior Superintendent of Police, Muzaffarabad. The reason assigned for termination of appellant's service was that the appellant was involved in a criminal case under Articles 3/4, Prohibition Order registered on 21-6-1999. The appellant claims that he was implicated in a false and fake criminal case and the respondent No.2 unlawfully terminated the appellant's service without hearing appellant. The appellant filed a departmental appeal before respondent No.1. The departmental appeal was kept in abeyance till decision of the criminal case against the appellant. The criminal Court of competent jurisdiction later on acquitted the appellant of the charges of possessing narcotics and trafficking drugs. Respondent No.1 admitted the appeal filed on behalf of the, appellant and ordered restoration of appellant in the service. However, respondent No.1 declared that the period of termination of appellant's service be treated on full pay and if the appellant does not have the right of leave, the period be treated as without pay'. The appellant claims that the condition inserted by respondent No.1 in the impugned order has caused a break in the appellant's service, so the terms and conditions of appellant's service have been badly affected. The appellant contends that he was involved in a fake and false case and he had to suffer from a fault not committed by him. As the Criminal Court of competent jurisdiction acquitted the appellant of the false charges against him, it was incumbent upon respondent No.1 to restore the appellant's service with full back-benefits but through impugned order a period from 26-8-1999 to 7-5-2003 has ceased to exist in the appellant's service. The appellant claims that he has been discriminated through the impugned order and craved to set aside the condition inserted in the order under appeal.

3. The respondents were accordingly summoned. Respondent No.2 Senior Superintendent of Police filed his departmental comments before the Court on 29-9-2003, wherein the respondent admitted that the appellant was ousted from service when he was found involved in a Criminal Case No.255 of 1999 under Articles 3/4 of the Prohibition Order. It has also been admitted by respondent No.2 that the appellant was acquitted of the charges under section 249-A of Cr.P.C. Respondent No.1 has defended the impugned order through his departmental comments filed on 16-10-2003. Respondent No.1 claims that order passed by him was quite in accordance with law. Respondent, No.1 further claims that the appellant belongs to a disciplined force and in order to maintain discipline in the Police Force, it was necessary to pass the impugned order in the same tune.

4. Written arguments on behalf of the parties have been placed on file. The parties to the appeal" have re-affirmed their contentions in the written arguments. The facts narrated in the instant appeal are that a case under Articles 3/4 of Prohibition Order was registered against the appellant on 21-6-1999. The appellant claims that out of grudge, one Shahid Dar succeeded in getting a criminal case registered against the appellant but the prosecution witnesses in the Criminal Court negated the story of the prosecution. The Criminal Court on the basis of evidence of the prosecution witnesses acquitted the appellant of the charges levelled against him. The 'Senior Superintendent of Police, Muzaffarabad terminated the appellant's service without waiting for the result of the criminal case and the appellant had to file a departmental appeal against the order of Senior Superintendent of Police, Muzaffarabad. Respondent No.1 adopted a rational way by keeping the appellant's appeal in abeyance until decision of the Criminal Court. When the appellant was acquitted of the charges. Respondent No.l after going through the procedure, accepted the appellant's departmental appeal and ordered that the period of termination of appellant's service shall be treated as leave on full pay and if the appellant does not have any earned leave, the relevant period shall be treated as without pay Service. A perusal of the impugned order transpires that on the one hand, respondent No.1 has accepted the appeal against the order of termination of appellant's service and on the other hand, the appellant has not been deemed entitled to monetary benefits. Respondent No.1 should have either accepted the appeal as a whole or should have denied the appellant's claim. By inserting a condition in the impugned order, respondent No.1 has put a break on appellant's service which essentially has affected the appellant. The condition inserted in the impugned order was not justified under law, so by accepting the appeal, the impugned order is amended in the tune that the appellant is entitled to the emoluments for the period of his termination from service. The appeal is disposed of in the terms stated above. No order as to costs. H.B.T./1(Sr.T.(AJ&K) Order accordingly.