2011 SCMR 534 (PLP)

ZIA PERWEZ, J.

This Civil Appeal by leave of this Court is directed against the impugned judgment of the Punjab Service Tribunal, Lahore dated 9-3-2005 passed in Appeal No. 2640 of 2004:

2. The appellant was employed as Head Constable Police. Show-Cause Notices dated 5-3-2003 and 19-4-2003 were served upon him for unauthorized absence from duty, on failure to report after availing leave for one day i.e., on 22-1-2003 and for his absence from duty w.e.f. 23-1-2003 In addition to above, a further allegation regarding abduction of one Mst. Farhat Kauser wife of Khalil Ahmed was also alleged. Appellant was required to explain the commission of alleged immoral act. Trial was being conducted by the competent court at that time. The aforesaid show-cause notices were served upon the appellant while in jail custody. No inquiry was held and as a result of summary proceedings, the appellant was held liable for unauthorized absence from duty which was proved from record. The period of absence was treated as leave without pay. Further, he was awarded punishment of dismissal from service vide order dated 13-9-2003. After rejection of his departmental appeal vide order dated 2-11-2004, the appellant approached the Punjab Service Tribunal, Lahore with a plea that the appellant contracted marriage in good faith with a woman who subsequently committed a fraud with him, therefore under the facts and circumstances, the case did not call for extreme penalty.

3. The trial before the Criminal Court ended when an application moved by the appellant under section 165-K, Cr.P.C. was allowed.

4. Vide order dated 12-7-2006, leave to appeal was granted to examine the case in the absence of any wilful absence from duty.

5. Mr. Saiful Haq Ziay, learned Advocate Supreme Court for the appellant contended that after acquittal of the appellant form the competent Court, he was liable to be reinstated and the order passed in ignorance of the fact that the appellant was granted leave for one day to appear before the trial Court where he was taken into custody and therefore, he could not report for duty. In support of his contentions, the learned counsel placed reliance on the cases of The Deputy Inspector-General of Police, Lahore Range v. Anisur Rehman Khan (1983 SCMR 160), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1), Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603), and Rashid Mehmood v. Additional Inspector-General of Police (2002 SCMR 57). Ms. Afshan Ghazanfar, learned AAG has opposed the appeal and her main contention is that the civil servant's absence without leave is sufficient ground for his removal from service; that acquittal from criminal charge has no bearing on disciplinary proceedings; and that the Service Tribunal has already taken a lenient view while converting the penalty from dismissal to that of compulsory retirement. In support of her arguments, she placed reliance on the cases of Arif Ghafoor v. Managing Director, HMC, Taxila and others (PLD 2002 SC 13) and Government of 'N.-W.F.P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others v. Aurangzeb (2003 SCMR 338).

6. We have heard the learned counsel for the parties and have pursued the record.

7. The perusal of the record shows that the appellant was in a position to receive, reply and address communication during the period of his detention as is evident from the receipt and replies to the aforesaid show-cause notices. Further, he did not bother. to apply for extension of his leave of the period of his detention even after the notices were served upon and were also replied by him at that 'time. The learned Advocate Supreme Court on being asked could not cite any specific provision of law necessitating inquiry in a case where all the facts are admitted and available on record as in the instant case. Therefore, the case-law relied upon by him is not attracted and is distinguishable on this count.

8. This Court has already laid down in the case of Arif Ghafoor, supra that the disciplinary proceedings and criminal proceedings are quite distinct to each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction. The decision of one forum would have no bearing on the decision of other forum in any manner whatsoever. In the said background, it would be a misconceived notion to consider the acquittal in a criminal trial as If an embargo against disciplinary proceedings.

9. The learned Service Tribunal has already taken a lenient view in the matter by partly allowing his appeal and converted the penalty of dismissal to that of compulsory retirement. Under the facts and circumstances, we do not find any ground calling for interference with the impugned judgment in exercise of constitutional jurisdiction under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.

10. Accordingly, the appeal being devoid of merits, dismissed. S.A.K. /M-117/SC Appeal dismissed.