2008 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Abdul Majeed was an Assistant Works Manager in Mughalpura Workshops of Pakistan Railways. It is stated that on 10-3-2000 at about 8-45 hours he was caught red-handed by Vigilance Cell comprising two persons while he was collecting illegal gratification from the workers and an amount of Rs.1,640 was recovered from his possession. A show-cause notice dated 13-3-2000 was issued to him on the charge of misconduct. In his reply he denied the allegations levelled against him. The Competent Authority after considering the defence reply passed an order on 25-3-2000 by which the appellant was removed from service. Against his removal the appellant filed a departmental appeal on 7-4-2000, which was rejected on 9-6-2000. In the present appeal filed under Section 4 of the Service Tribunals Act, 1973 the appellant has prayed that the impugned order of removal be set aside and he be reinstated into service with back-benefits.

2. The appeal is resisted by the respondents. It is stated that the appellant was arrested flagrante delicto for which a criminal case was also registered against him. It is further stated that the entire proceedings taken against the appellant were strictly in accordance with rules.

3. We have heard the learned counsel for the parties and have also perused the record.

4. On the charge of accepting illegal gratification the appellant was tried in the Court of special Judge (Central), Lahore. He was acquitted vide judgment dated 14-4-2001. It was held by the Court that the charge of accepting illegal gratification was not established against the appellant. The amount of Rs.1,640 was refunded to the appellant as it was held to be his property. Since the appellant has been acquitted by a Court of competent jurisdiction on the same charge on which he has been removed from service, therefore, we are constrained to hold that the removal order cannot be sustained. It is correct that the criminal proceedings have no nexus with the departmental proceedings but every case has to be decided on its own merits. When the charge in the Criminal Court is exactly the same on which the departmental action is initiated then the judgment of the Criminal Court acquitting the accused employee cannot be ignored. We accordingly hold that in the presence of the judgment of the Criminal Court the charge of illegal gratification levelled against the appellant in the departmental proceedings is also not proved.

5. Even otherwise the departmental proceedings initiated against the appellant were not legal. In the show-cause notice it was stated that the appellant had been apprehended by two persons of the Vigilance Wing. The names of those two persons were not mentioned. Thus the appellant was deprived of an opportunity to show that the persons who had allegedly apprehended him had a reason to falsely implicate him in a case of corruption. We find that a vague allegation had been levelled against the appellant. On this allegation he should not have been awarded penalty of removal from service.

6. It is vehemently argued by the respondents that the appellant had confessed his guilt through an affidavit. This affidavit has not been produced. We, therefore, cannot accept the contention of the respondents to be correct.

7. In view of the findings we find that the respondents have failed to make out any case against the appellant for which he could be removed from service. Accordingly we accept the appeal and set aside the impugned order. The appellant is reinstated into service with back-benefits.

8. There shall, however, be no order as to costs. Parties be informed. H.B.T./38/FST???????????????????????????????????????????????????????????????????????? Appeal accepted.