2006SCMR1653 (PLP)

ABDUL HAMEED DOGAR, J.

Through this petition, petitioner Shahid Wazir seeks leave to appeal against the judgment, dated 8-172006 passed by Federal Service Tribunal, Islamabad, (hereinafter referred to as "the Tribunal") whereby Appeal No.146(P)CS of 2003 filed by him for his reinstatement in service was dismissed.

2. Briefly, stated the facts of the instant petition are that petitioner was working as Executive Engineer in the Federally Administered Tribal Areas Development Corporation (FATA). On 27-1-2000, he was served with a charge-sheet on account of embezzlement and misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973. As a result of disciplinary proceedings, the penalty of removal from service was imposed upon him. The said order was challenged by petitioner through Appeal No.65(P)CE of 2000 before the Tribunal which was dismissed on 28-5-2001. Feeling aggrieved, petitioner assailed that judgment before this Court through Civil Petition No.1922 of 2001 which was also dismissed on 23-4-2002.

3. Beside disciplinary proceedings, a criminal case vide F.I.R. No.10 under sections 409/420/468/471/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 was also registered on 25-8-2000 against the petitioner, his co-accused Muhammad Saleem Khan and Rasheed Ahmad at Police Station F.I.A. Peshawar. A formal charge was framed against them by the learned Special Judge (Central), Anti-Corruption, Peshawar. On conclusion of trial, the petitioner was acquitted by the trial Court vide judgment, dated 30-4-2003 for want of evidence. Feeling aggrieved, respondents challenged the said order of acquittal before the Peshawar High Court by filing Criminal Appeal No.314 of 2003 which was dismissed vide order, dated 12-9-2003 on the ground that the same was not filed by a competent authority inasmuch as the case against petitioner and his co-accused was investigated, inquired into and tried under the provisions of the Central Anti-Corruption Laws and Rules and in view of this fact the Federal Government alone was competent to file an appeal against an order of acquittal passed by the trial Court. Respondent challenged this order through Civil Petition No.158-P of 2003 before this Court which was also dismissed on 2-5-2005.

4. After acquittal from the criminal Court, petitioner filed departmental appeal before respondent No.2 for reinstatement in service on 19-5-2003 which was rejected vide order, dated 19-6-2003. This order was challenged by the petitioner in the Tribunal by filing Appeal No.146(P)CS of 2005 which was dismissed vide impugned judgment.

5. We have heard Hafiz S.A. Rehman, learned Senior Advocate Supreme Court for the petitioner at length and have gone through the record and proceedings of the case in minute particulars.

6. Learned counsel for the petitioner contended that petitioner was tried by Central Judge, Anti-Corruption in case F.I.R. No.10, dated 25-8-2000 under sections 409/420/468/471/109, P.P.C. in which he was acquitted. The order of his acquittal was maintained by the learned High Court as well as by this Court. He further submitted that since the petitioner has been exonerated from the criminal charges by a Criminal Court, therefore, there could be no justification to impose upon him, the major penalty of removal from service as the very basis for the penalty had not been found justifiable. It was further argued that the departmental punishment was discriminatory in nature. Even otherwise the major penalty of removal of the petitioner from service was not warranted in the facts and circumstances of the case, He contended that a civil servant could not be penalized by departmental authority if he had been acquitted by a Criminal Court on merits, on the same charge.

7. The departmental penalty was imposed on the petitioner, not on account of criminal proceedings but, as a consequence of departmental inquiry having been conducted in which the petitioner was found guilty of the charge though he was afforded full opportunity of defence. The departmental and criminal proceedings can be taken simultaneously and independent of each other. In this context, this Court in the case reported as Dawood Ali v. Superintendent of Police and others 2005 SCMR 948 while dealing with the same aspect has held as under:-- "The departmental penalty was imposed on the petitioner, not on account of criminal proceedings but, as a consequence of departmental inquiry having been Conducted in which the petitioner was found guilty of the charge. It is now well-settled that the departmental and criminal proceedings can be taken simultaneously and independently of each other."

8. Irrespective of the above, this is the second round of litigation. In the first round, as stated, the petitioner had failed to make out his case in which also each and every aspect of the matter was considered even the criminal liability was considered by this Court in C. P.L.A. No. 1922 of 2001. Departmental proceedings initiated against him were on the basis of misappropriation and using of such slanderous, insulting and intemperate language of unbecoming officer.

9. In view of the above discussion, it is clear that the petitioner has deliberately started the second round of litigation without any justification and is thus, hit by the principle of res judicata.

10. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of, facts and law. Moreover, no question of general public importance as contemplated under Article 212(3) of the Constitution is involved in this case. Accordingly, the petition being devoid of substance is dismissed and leave to appeal refused. S.A.K./S-48/SC Leave refused.