FAYYAZ AHMED vs SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY

ORDER

' SALEEM AICHTAR, J.---The petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal, whereby his appeal against the order of the respondents was dismissed.

2. The petitioner was a Record Keeper in the Registration Office, Karachi and was prosecuted under sections 420, 109, 168, 471, 475, 474 and 411, P.P.C. He was placed under suspension but as the trial Court acquitted him by giving benefit of doubt, he was reinstated in service by order dated 13-4- 1993. However, by order dated 13-9-1993 the period of suspension was treated as leave of the kind due to him. His departmental representation to the Director-General did not succeed and, therefore, he filed an appeal to the Secretary, Ministry of Interior on 19-1-1994. As no reply was received he filed appeal before the Tribunal. The Tribunal by the impugned judgment dismissed the appeal. In dismissing the appeal the Tribunal took into consideration the provisions of Fundamental Rule 54 and after quoting the said rule observed as follows:- "Under proviso (a) ibid, the appellant was entitled to full pay had he been acquitted honorably, but as held above, it was not an honorable acquittal and his acquittal from the criminal case and consequential reinstatement in service, was only on the basis of benefit of doubt, therefore, it was the discretion of the competent Authority under FR-54, to have treated his suspension period as leave of the kind due, and not as duty as he was not acquitted honorably."

3. For this observation, the Tribunal relied on Syed Kamaluddin Ahmad v. Federal Service Tribunal and others 1992 SCM R 1348 in which question for consideration was to consider the legality of the consequential order passed by the Federal Service Tribunal after allowing appeal of the appellant and ordering his reinstatement in service, whereby the appellant was refused the relief of back benefits.

4. Mr. Sabihuddin Ahmed the learned counsel for the petitioner has contended that the expression 'honourable acquittal' having not been defined in the Criminal Procedure Code it is the function of the departmental Authorities/Service Tribunal to determine whether acquittal in a particular case is honorable or otherwise after considering the entire judgment of the criminal Court and the relevant circumstances. Reliance has been placed on Sardar Ali v. Pakistan through General Manager, N.-W.R., Lahore PLD 1961 (W.P.) Lahore 664. The learned counsel further contended that Kamaluddin's case relied upon by the Tribunal related to departmental enquiry and not a criminal charge and the principles laid therein were clearly distinguishable from the principles required to be applied in the present case.

The learned counsel also contended that in Mian Muhammad Shafa v. Secretary to Government of the Punjab, Population Welfare Programmer, Lahore and another 1994 FLC (C.S.) 693, a completely different view has been taken from the one expressed in the impugned judgment. There being conflict of decision an authoritative judgment on the point is required.

5. The contentions raised by the learned counsel are of general public importance. Leave is granted.