2013 PLP (C (PLC(CS))

NASIR-UL-MULK, J.

The petitioner was serving as Inquiry Clerk, in the office of Divisional Superintendent, Pakistan Railways, Multan, in the year 2001. A departmental disciplinary action was taken against him on the allegation that he had received illegal gratification of Rs.100 from one, Mumtaz Hussain. At the same time a criminal case, later tried by the Judge, Anti Corruption, Multan, was also registered against him. He was eventually acquitted on the criminal charge. The departmental disciplinary action resulted in the petitioner's dismissal from service. The petitioner assailed his dismissal before the Federal Service Tribunal. His appeal was dismissed. He filed petition for leave to appeal before this Court, which was converted into appeal and allowed on 26-9-2005, the entire departmental proceedings were set aside, the petitioner was reinstated in service and the Department was directed to hold a regular inquiry. Upon regular inquiry, the petitioner was again found guilty but this time, he was awarded punishment of reduction in time scale by five steps for three years. The petitioner impugned this order before the Service Tribunal. His appeal failed and now he has filed this petition for leave to appeal.

2. We heard the learned counsel for the parties. The learned counsel for the petitioner submitted that the petitioner was acquitted on the criminal charge in view of the statement made by the complainant, Mumtaz Hussain, who exonerated the petitioner. He contended that the said Mumtaz Hussain had even during the inquiry proceedings absolved the petitioner, stating that the money was given by the petitioner to a 'coolly' to purchase tea for the two of them. The learned counsel argued that the inquiry officer could not rely upon any earlier statement of the complainant to the police as that was outside the scope of the inquiry. The learned counsel further added that even the inquiry was not properly conducted as the petitioner was not provided opportunity to cross-examine the witnesses.

3. The learned counsel for the respondent argued that it was on the complaint of the said 'Mumtaz Hussain' that the criminal case was registered and a disciplinary action was taken against the petitioner. That he subsequently resiled from his statement in order to favour the petitioner and, therefore, his earlier statement shall be considered for determining the petitioner's culpability.

4. True that the action by the Department against the petitioner was taken on the basis of the statement of Mumtaz Hussain. However, during the inquiry proceedings he had completely exonerated the petitioner of any culpability. Rather he came with a version that he had friendly relationship with the petitioner and on the relevant day, it was the petitioner who had handed over a 100 rupees note to one of the 'coolies' to bring, tea for them. That during this process, Gul Zaman, a member of the vigilant cell appeared on the scene and snatched the 100 rupees note, alleging that the petitioner had received it as bribe. Mumtaz Hussain is the star witness in the case and has not supported the allegations made against the petitioner in the statement of allegations. There is nothing else on the record to substantiate the allegations. The statement made by the said Mumtaz Hussain to the police during the investigation of the criminal case is not part of the record of the departmental proceedings. Even otherwise, such statement, being not subject to the cross-examination, cannot be accepted as evidence. We, therefore, find that the departmental authority had erred in law in finding the petitioner guilty of bribery by placing reliance upon the statement by a witness made in different proceedings. The Service Tribunal had failed to take note of this error. The petition is, therefore, converted into appeal and allowed. The impugned judgment of the Service Tribunal and the order of the departmental authority dated 3-6-2006, imposing penalty upon the petitioner are set aside. The charge against the petitioner stands dismissed. MWA/G-3/SC Petition allowed.