JAVED SHEIKH Versus PROVINCIAL GOVERNMENT

MUNIR AHMED, MEMBER-I:

1. Through the instant appeal, appellant has challenged the impugned order No.SPG-5(7)/9905-12/2027 dated 29.09.2017 whereby he was dismissed from service under the police Rules 4(IV) (E&D) 1975 and dismissal of departmental appeal order No. IGP-1(77) PT-E-V/8063-65/2020 dated 22.04.2020, the appellant contends that dismissal order dated 29/09/2017was passed without affording him a proper opportunity of hearing, thus violating the principle of natural justice. He further asserts that the dismissal is contrary to law and settled rules. The appellant has prayed as under.

"It is therefore submitted that by accepting this service appeal this Hon'ble Service Tribunal set aside both the impugned orders dated 22-4-2020 and 29th September 2017 and the services of appellant may be reinstated from the date of dismissal from services with all back benefits to meet the ends of justice"

2. Brief facts of the Case are that the appellant was initially appointed as contingent constable (photographer) in Gilgit Baltistan Police vide order No. PRTC ACCU-1(19)/901-05/2002 dated 17th July.2002, he was adjusted on regular basis vide order No. SPG-1(1)/1439-42/2009 dated 31st January with effect from 1st February 2009.

3. During posting of appellant at Police Station Jutial Gilgit, an accused namely Sharafat Hussain was arrested in criminal case FIR No. 97/2017 registered against unknown persons at Police Station City Gilgit on 17.08.2017. During the investigation, the local police recorded statement of accused mentioned above under section 161 Cr.P.C, wherein he disclosed that stolen property had been taken away by the present appellant from his possession. Based on this statement recorded in case FIR No. 97/2017, another FIR No. 96/2017 was subsequently registered at Police Station Jutial Gilgit on 26.08.2017 against the present appellant under sections 412; 202, P.P.C.

4. As per record, vide order No.SPG-5(7)/8327-32 dated 30th August 2017, the appellant was placed under suspension and he was directed to submit written defense-within stipulated period, as required under Rule 7(a) & (b) of the rules. The appellant submitted his reply in response to show-cause notice wherein he categorically denied all allegations levelled against him.

5. The Superintendent of Police Gilgit, appointed Mr. Baba Jan DSP/SDIO city as inquiry officer to hold (departmental) inquiry by inserting a paragraph (para No.5) in show cause notice issued to the appellant.

6. On 28th September 2017, Inquiry Officer submitted his report with the following recommendations which are reproduced here in below.

"To sum up the whole discussion I conclude that accused officer found guilt and proved that the charges, levelled against him. However, accused sent to judicial lock up after due completion of investigation".

7. Vide order NO. SPG-5(7)/9905-12/2017 dated 29-09-2017 the SSP awarded the major penalty of "Dismissal from service" to appellant.

8. Aggrieved by the dismissal order issued by the Superintendent of Police Gilgit, the appellant filed a departmental appeal against the dismissal order. The IGP vide order No. IGP-1(77)/EX-V/7072-73/19 dated 28.05.2019 directed the DIG Gilgit Range as follows.

"De novo proceeding may be initiated. DIG Gilgit to inquire"

As per respondent's contention, the case of appellant was forwarded to DIG Gilgit Range who conducted inquiry and furnish his report vide his letter No. DIG-GR-1(15)/3598-3600/2018 dated on 3rd September 2019 to AIG with following concluding para "After his confession there is no room for compassion or leniency as the matter relates to the character of a police officer and a person who knowingly set a thief free for some paltry sum of money cannot be entrusted with protection of life and liberty of citizen.

The Inspector General of Police agreed with the report of DIG Gilgit Range and rejected the appeal as mentioned in paras Nos.2 to 5 of the impugned order No.IGP-(77)PT-E-V/8063-65/2020, dated 22nd April 2020.

9. Having exhausted the remedy of departmental appeal, the appellant has filed this Service Appeal before this Service Tribunal on 19.5.2020, appeal was admitted for regular hearing on 01.6.2020.

10. Notices were issued to the respondents who submitted their parawaise comments on 23/09/2020, contesting the service appeal contending that, pursuant to a De novo inquiry conducted by the DIG Police Range, the appellant's Departmental appeal had already been rejected. The appellant's subsequent request was also rejected. The respondents further raised some preliminary legal objections regarding maintainability of appeal on grounds of limitation absence of cause of action and the fact that the appellant was specifically nominated in the FIR No. 96/2017 under section 202/412, P.P.C. with recovery of case property allegedly affected from his possession.

11. The case is fixed today for arguments.

Learned counsel for the appellant argued that the so-called inquiry proceedings were conducted behind the back of the appellant. Keeping him in police custody hence, the inquiry proceedings is illegal and unwarranted. Appellant was not afforded opportunity of a personal hearing before passing the dismissal order, respondents have also violated the universally recognized golden principle of natural justice of "AUDI ALTRAM PARTEM" (No one should be condemned unheard).

12. Learned counsel contended that under law, disciplinary proceedings against a Government Servant facing criminal charges are impermissible unless and until criminal case is finally resolved. During pendency of criminal case and keeping the appellant under police custody respondents issued dismissal order. Hence, the impugned order of dismissal from service of appellant is contrary to law and without jurisdiction.

13. Further maintained that the accused Sharafat Hussain was arrested in FIR No. 97/2017 registered at Police Station City and based on his statement under section 161 Cr. P.C, another FIR No. 96/2017 was registered at Police Station Jutial by nominating the appellant as an accused in the FIR No 97/2017. The appellant was arrested by the police in FIR No. 97/2017 registered at Police Station City Gilgit. The main accused Sharafat Hussain was acquitted by the learned Judicial Magistrate vide order dated 07.07.2020 from the main criminal case FIR No. 97/2017. The appellant also filed a criminal miscellaneous application No. 93/2020 under section 249 A of Criminal Procedure Code during trial before the learned Judicial Magistrate. The learned Judicial Magistrate also acquitted the appellant from the charges levelled against him vide order dated 28-10-2021. In the above situation no allegation against appellant remains in field after his acquittal. The acquittal order has also gained its finality because no appeal on behalf of GB police/state has yet been filed against acquittal order dated 28-10-2021.

14. Learned Counsel next argued that the then superintendent of police had recommended the appellant along with other individuals for their reinstatement in services who were dismissed from service vide letter No.SPG-5(7)/265/2018 dated 26.3.2018 which is still in field. The recommendations mentioned above has also not been given any weightage without any reason.

15. To strengthen his contentions the learned counsel for the appellant cited the judgment 2014 SCMR 1843, 2002 PLC (C.S.) 1182 and a judgment passed by this Service Tribunal in Service Appeal No.2/2019 titled Sabir Hussain v. Provincial Government dated 29.11.2019. He also cited the judgment of the Hon'ble Supreme Appellate Court Gilgit Baltistan passed in CPLA No. 19/2020 dated 24.8.2022 contending that the Hon'ble Supreme Appellate Court GB has upheld the judgment dated 29.11.2019 supra passed by this Tribunal. Lastly he requests to set aside the impugned orders and the respondents may be directed to reinstate/restore the appellant's services and all back benefits may also be granted.

16. Learned law officer vehemently contested the appeal and argued that acquittal in criminal case by Judicial Magistrate Gilgit does not affect the departmental proceedings. A civil servant can still be dismissed form service if he is found guilty of misconduct during departmental inquiry, even after being acquitted in criminal case.

17. Argued that appointment of inquiry officer has been made as per rules and the officer has fairly and honestly conducted the inquiry against the appellant. Inquiry report is based on cogent reasons, as the stolen property has been recovered from the appellant in presence of two witnesses (police officials) and their statements have also been recorded and he himself has confessed the guilt and accepted the allegations levelled against him.

18. Learned law officer further contended that appellant has no case at all as he has been rightfully dismissed from service and his departmental appeal against dismissal order, has also been dismissed by the competent authority after conducting proper inquiry and fulfilling the required legal formalities as he has committed misconduct knowingly set a thief free for financial gain, he cannot be entrusted with protection of life and liberty of citizen. Law officer lastly prayed to maintain the dismissal order of appellant and also requested to dismiss the service appeal holding the same as not maintainable. Law officer, placed his reliance on following case laws:

2008 SCMR 834, 1994 PLC (C.S.) 834, 2006 SCMR 554 and PLC 2004 (C.S.) 834.

19. We have carefully heard the arguments, advanced by the counsel from both sides, threshed out the entire record and judgments cited by the learned counsel for appellant and provincial law officer.

20. From perusal of case file it reveals that the appellant has annexed the following documents along with appeal besides the impugned orders dated 22.4.2017 and 29.9.2017. a) Copy of statement of allegations. b) Copy of show cause notice. c) Copy of reply to show cause notice. d) Inquiry report order of suspension office note dated 30.7.17. e) Copy of office order dated 03.9.2019. f) Copy of office letter dated 26.3.2018. g) Copy of office letter dated 07.8.2018. i) Copy of office letter dated 06.4.2018. j) Copy of covering letters. k) Departmental appeals. l) Copies of FIRs No. 06/17, 7/17. m) Contingent appointment order dated 17.7.2002. n) Adjustment order dated 31.1.2009. o) Order of acquittal of appellant dated 28.10.2021.

Respondents have not annexed any single piece of paper/ documents in support of their contentions made in parawise comments.

21. No order of appointment of inquiry officer is available on file. In show- cause notice, in paragraph No.5 it was written that Mr. Baba Jan was appointed as inquiry officer.

The inquiry officer has concluded the inquiry with following recommendations on 28th September 2017 which are reproduced as under.

"To sum up the whole discussion I conclude that accused officer found guilt (sic) and proved that the charges, levelled against him. However, accused sent to judicial lock up after due completion of investigation".

22. On careful examination of the above recommendation, the words "accused sent to judicial lock up" mentioned therein above, clearly signalīzes that appellant was in police custody and inquiry officer has sent him to judicial lock up by exercising the powers of the Criminal Court. Furthermore the inquiry officer has not recommended any kind of penalty to appellant. He has convicted the appellant in criminal case stating therein that he is found guilty and proved the charge levelled against him and sent the appellant to judicial lock up. Therefore, he has exercised his jurisdiction not vested to him. The Senior Superintendent of Police GB IGP awarded the penalty of dismissal from service to appellant on the basis of the inquiry report vide order No.SPG-5(7)/ 9905-12/2017 dated 09/05/2017, the appellant feeling himself aggrieved by the dismissal order, filed departmental appeal to Inspector General of Police for setting aside the same and his reinstatement.

It is worth mentioned here that the then IGP after hearing the appellant, being not satisfied with the finding given by the inquiry officer dated 28 September 2017 and impugned dismissal order NO. SPG-5(7)/9905-12/2017 dated 29-09-2017 passed by the then SSP, ordered to DIG to initiate De novo proceedings vide its order No.IGP-1(77)/Ex-v/7072-73/2019 dated 28.05.2019. As per contention of respondents, the case file of the appellant was forwarded to DIG who conducted inquiry against the appellant and furnished his report to IGP. Who was pleased not to entertain the appeal on the ground that the appellant has confessed his guilt and the appellant has already exhausted the right of appeal as mentioned in order No. IGP-1(77)PT-E-V/8063-65/2020 dated 22.04.2020.

23. As observed in preceding para No.18 supra, needless to mentioned here that the respondents have failed to establish this fact that the appellant has committed misconduct before this Tribunal in support of any documentary evidence/proof. They have not attached any single piece of paper to substantiate and strengthen their arguments and the contention raised in para wise comments. The facts and grounds narrated in paras Nos. 2 to 6 of the above impugned order dated 22/04/2020 are mere assertions without any proof hence these grounds cannot be taken into consideration because there is no documentary evidence available on case file. No record of confessional statement of appellant, recovery memo, statement of alleged recovery witness, no notice available on case file regarding the hearing/personal hearing of the appellant before passing the impugned dismissal order annexed with parawise comments.

24. The respondents have miserably failed to present any documentary proof to substantiate their contention made in the parawise comments and validate their arguments. It is further to be clarified that the police department has also failed to prove the allegations of taking away of stolen property by the appellant in criminal case against the appellant before the learned Judicial Magistrate. The appellant has submitted the order dated 28/10/2021 passed by the learned Judicial Magistrate wherein the appellant has been acquitted from the charges levelled against him in criminal case No. 96/17. It is also an admitted fact that no appeal against the acquittal order has yet been filed before any court till today. The acquittal order has also attained its finality on the same issue/allegation. Currently, two conflicting orders are in field, from where one order is acquittal from the charges by the learned Magistrate and another order of dismissal of appellant from service by the IGP which has been made impugned in the service appeal. It is well settled rule that the court's order takes precedence over the order of IGP

25. Case laws cited by Provincial law officer reported in 2006 SCMR 554, 1994 PLC (C.S.) 834 and 2004 PLC (C.S.) 563 are relevant to the extent that "acquittal from court would not constitute a bar to initiate further disciplinary proceedings against the civil servant same being independent in nature". We agree and honor to verdict passed in the above referred judgments. No doubt criminal proceedings and disciplinary proceedings against the civil servant, being independent in nature having their different consequences. A civil servant can be dismissed from service in disciplinary proceedings even after acquittal from the competent court if he is found guilty during inquiry. We are also in agreement that there is no bar in law, criminal proceedings and departmental inquiry can instantaneously and concurrently be conducted and disciplinary inquiry can even be done after acquittal of civil servant charged in criminal case.

26. In the present case the appellant has filed this service appeal after his acquittal from the court therefore the proposition of law mentioned hereinabove is not relevant being not at issue in the instant case. The appellant has impugned the dismissal order on the ground that he has not been afforded proper opportunity of hearing, without following the procedure of inquiry as per law. This tribunal has to decide whether the dismissal order has been passed after fulfilling the mandatory the provisions of law and based on solid evidence? Legality or otherwise of any order issued by the government authorities in respect of the terms and condition of civil servant of Gilgit Baltistan falls within the jurisdiction of this tribunal.

27. The absence of documents i.e. alleged recovery memo, statements of recovery witnesses, notice to appellant for hearing, confessional statement of appellant and other relevant documents regarding the inquiry proceedings, nothing is available on case file. Therefore inference can be drawn that respondent have failed to defend the impugned order. The impugned order has been passed without following the proper procedure of law and against the principle of natural justice. Appellant has been condemned unheard.

28. As far as the question of back benefits we fortified with the judgments of the Hon'ble Supreme Court of Pakistan titled Inspector General of Police Punjab v. Tariq Mehmood reported in 2015 SCMR 77 and 2015 PLC (C.S.) 366 wherein it was authoritatively reiterated that grant of back benefit to an employee who was reinstated by the Court/Tribunal or Department is a rule and denial of such benefits is an exception on proof of that such person had remained gainfully employed during such period. In case titled Chairman State Life insurance Corporation of Pakistan Karachi v. Siddique Akbar reported in 2013 SCMR 752 the Hon'ble Supreme Court of Pakistan also held that once employee is reinstated in service after his exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed cannot be attributed as fault on his part his absence during this period was not voluntary on his part but it was due to order to attend his job/duty because on the basis of charge sheets, he was suspended and later on dismissed. At the moment, his exoneration from the charges would mean that he shall stand restored in service, as if he was never out of service of the appellant. If the absence of the respondents or non-attending work was volunteer act on the part of the respondent and was due to steps taken by the appellant, in no manner affected nor he can be denied any benefit to which he was entitled, if he had not been suspended nor dismissed.

29. As a result of the above discussion, we have come to the conclusion that the impugned dismissal order No. SPG-5(7)/9905-12/ 2027 dated 29-09-2017 and order No. IGP-1(77) PT-E-V/8063-65/2020 dated 22.04.2020 are invalid and issued without following the proper procedure.

30. This service appeal is hereby accepted and Impugned orders are hereby set aside. Appellant is reinstated to his post as FC in GB Police with effect from the date of his dismissal. As there is nothing on record that the appellant worked for gain during the period of his removal. He is also declared entitled to back benefits from the date of his dismissal.

Appeal is disposed of in above terms.

No order as to cost.

File be consigned to record after due completion.

MQ/1/GBST Appeal allowed.