1988 PLP (C (PLC(CS))

Mian Saleem Jahangir for Petitioner. S.M. Zubair. Addl. A.‑G. for Respondents. Date of hearing: 2nd November, 1987. Ahsan Saleem petitioner is Inspector of Police. He was involved in a Criminal Case F.I.R. No.240 dated 29‑9‑1985 under section 419/170, P.P.C. registered at Police Station, South Cantonment, Lahore. He was tried in absentia by the Summary Military Court, Lahore and was convicted and sentenced to one year imprisonment plus a fine of Rs.5 Lac. The Martial Law Administrator, Punjab vide his order dated 26‑12‑1985 declined to confirm the proceedings and set aside the order passed by the Summary Military Court. Vide order dated 1‑10‑1985 he was reverted to the rank of S.I. by D.I.G. Lahore Range. On 2‑12‑1985 he was dismissed from service by the S.S.P. Lahore. He unsuccessfully appealed to the I.G. Punjab against the said orders. He then preferred appeal before the Punjab Service Tribunal, Lahore which was accepted vide judgment dated 5‑11‑1986. In consequence, the petitioner was re‑instated to his original rank of Inspector Police with all back benefits. The Police Department did not file any appeal against the said judgment. The petitioner was once again tried by Mian Muhammad Aslam M.I.C. Lahore Cantt. in the same case F.I.R. No.240 dated 29‑9‑1985 P.S. South Cantt. Lahore but was acquitted on 23‑2‑1987. On 23‑5‑1987 he was again charge‑sheeted by D.I.G. Lahore Range on the same allegations. Hence this writ petition.

2. It is contended that the charge‑sheet subject‑matter of this petition is based on the same old criminal case in which the petitioner had been, honourably acquitted by the Martial Law .administrator Punjabi and Mian Muhammad Aslam M.I.C. Lahore Cantt. The orders passed by the respondents of his reversion to the post of S.I. and dismissed were set aside by the Punjab Service Tribunal. No appeals were filed. The orders of the Criminal Court and of the Services Tribunal had attained finality because no appeal was filed against them. In the circumstances mentioned above a prayer has been made that the proposed departmental inquiry proceedings may be declared to be without authority and of no legal effect.

3. According to the respondents the petitioner was charge‑sheeted under the Punjab Police (E & D) Rules, 1975 by the competent authority in accordance with law. The Punjab Service Tribunal had observed in its judgment that the respondents were neither debarred earlier nor even now to proceed against the petitioner under the Police (E & D) Rules, 1975, if they were of the opinion that he was guilty of melversion under the relevant departmental rules. The respondents have not denied that the petitioner was discharged from the charge by the Martial law Administrator. Punjab. They have also admitted that the departmental punishment awarded to him was set aside by the Punjab Service Tribunal. His acquittal by the Court of Mian Muhammad Aslam, M. I. C. Lahore in the case mentioned above is also not denied. The charge‑sheet presently served contains the same allegations on which the petitioner was earlier acquitted. There is no mention of any fresh ground of allegation in it. He was departmentally proceeded against on these allegations earlier by the respondents and the punishments awarded to him were set aside on appeal by the Punjab Service Tribunal. It is not understandable why on the same allegation the respondents want to proceed against him. There should be some end some where. Undisputedly the departmental proceedings and criminal case can go side by side but if both the proceedings, culminate in favour of the petitioner then starting a fresh inquiry, against him on the same allegations is nothing but clear instance of mala fides on the part of the respondents. A reference may usefully be made to Muhammad Sardar Khan v. Senior Member (Establishment) Board of Revenue, Punjab, Lahore 1985 S C M R 1062 where it was held that "when the sentence is set aside and the accused officer is acquitted, the very basis on which such order of removal from service stands, would disappear. The result of such an event would be that the order of removal itself will be rendered ineffective and liable to be set aside. Such being a legal consequence a void order of removal could not have been propped up by any additional ground, as done by the learned Service Tribunal, for the simple reason that such additional grounds found in support of the removal order would violate the rule of natural justice, besides being violative of the mandatory requirement of the Efficiency and Discipline Rules". Since the present departmental inquiry has not been ordered on any fresh material or ground and is being made on the same old allegations it being violative of rules of natural justice cannot legally proceed. The petition, therefore, is accepted and the orders of the respondents are declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs. M.Y.H. /A‑269/L???????????????????????????????????????????????????????????????????????????????? Petition accepted.