1998 PLP 2739 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner seeks leave to appeal against an order of a learned Single Judge of the Lahore High Court, Rawalpindi Bench; dated 6-4-1995 whereby writ petition filed by Shamas Pervaiz respondent No.3 herein was accepted, his dismissal/removal set aside and he was re-instated in service with affect from the date of his removal from service.

2. It appears that disciplinary proceedings were initiated against Shamas Pervaiz respondent, an employee of Municipal Committee, Gujar Khan, on the allegation that an amount of Rs.17,108.40 collected by him from the Food Department were neither given by him to the Contractor nor deposited with the Municipal Committee. Respondent approached the High Court with the plea that Mehboob Ali, the then Head Clerk, Octroi made a statement before the Chief Officer of the Municipal Committee on 11-12-1994 to the effect that Sheikh Muhammad Ayub Contractor, the present petitioner had acknowledged before him the receipt of the amount in question and he accordingly made the entry in the relevant record. The learned Judge in the High Court recorded the statement of Sajjad Hussain Bhatti, Chief Officer of the Municipal Committee who stated on oath "According to the statement of Mehboob Ali, the Ex-Muharrir and record concerned, it is proved that the said amount had ,been paid to the Contractor. There is no embezzlement".

3. In view of the statement of the Chief Officer, the learned Judge came to the conclusion that "the petitioner is not guilty of any offence. The amount which he received i.e. Rs.17,108.40 was paid by him to the Contractor. Thus, the allegation levelled against him of embezzlement stands refuted". Writ petition was accordingly allowed and the respondents ordered to be re-instated in service with effect from the date of his removal from service.

4. Learned counsel appearing in support of this petition has made a grievance that as a result of the statement made by the Chief Officer and the order passed by the learned Judge in the High Court, the petitioner is likely to be burdened with the liability for the amount in question which was never paid to him by the respondent. His further grievance is that the impugned order has been passed without affording him any opportunity of hearing. We find no merit in this latter contention. Writ petitioner/respondent No.3 had sought the relief against the Municipal Committee and not against the petitioner and the relief has been granted by the learned Judge against the Municipal Committee after being satisfied that the respondent was not guilty of misappropriating the amount in p ,question. It was, therefore, not necessary to hear the petitioner. As regards the petitioner's grievance that he would be burdened with the liability as a result of the impugned order, suffice it to observe that as and when the amount in question is sought to be recovered from him, it will be open to him to disprove the statement of Mehboob Ali and/or of the Chief Officer and to show that he never received the amount in dispute from respondent No. 3.

5. In view of what has been said above, no case is made out for interference by this Court. This petition is accordingly dismissed with the I observation aforementioned. A. A./M-134/S Leave refused