GOVERNMENT OF N.-W.F.P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others vs AURANGZEB EX-DRIVER

' MIAN MUHAMMAD AJMAL, J.---The petitioners seek leave to appeal against the judgment of the N.- W.F.P. Service Tribunal, Peshawar dated 4-6-2001 whereby Appeal No,2806 of 2000 of the respondent was accepted, and the petitioner-department was directed to reinstate him in service by treating his termination period as extraordinary leave without pay.

2. Brief facts are that, on 5-5-1997 a case under sections 302/324/34, P.P.C. Was registered against the respondent, a Driver in Civil Secretariat, vide F.I.R. No,194 at Police Station 3adaber. He absconded and thus remained absent from his duty. The department issued letters dated 8-7- 1997, 16-9-1997 and 28-10-1997 to the respondent at his home address to resume duty and also published a notice about his absence in the newspaper "Dialy Aaj" Peshawar dated 6-1-1998 with a direction to him to resume duty within., 15 days failing which disciplinary action would be taken against him. Thereafter, final show-cause notice was published in "Daily Aaj" dated 19-2-1998 requiring him again to resume duty within 15 days and on his failure to do so the Authority removed him from service w,e,f, 6-5-1997 i,e, the date from which he remained absent from duty vide office order dated 20-6-1998.

3. The respondent was arrested, whereafter he faced trial and was acquitted by the learned Additional Sessions Judge-V, Peshawar vide his judgment dated 22-4-2000 by giving him the benefit of doubt.

4. After acquittal, he moved an application for his reinstatement on 4-5-2000 which was rejected on 24-10-2000. He then filed Appeal No,2806 of 2000 before the N.-W.F.P. Service Tribunal, Peshawar which has been accepted vide judgment impugned herein, as stated in para. 1 above.

5. Learned Additional Advocate-General for the petitioner contended that the Tribunal erred in law in accepting the time-barred appeal of the respondent. He added that registration of criminal case against the respondent and his acquittal therefrom by giving him benefit, of doubt and departmental proceedings were taken independently from each other and despite notices and publication in the press, the respondent failed to resume duty, thus, the Authority was justified in removing him from service. He added that the appeal filed by the respondent was time-barred and incompetent as he failed to exhaust departmental remedy before filing the appeal.

6. Learned Advocate-on-Record appearing for the respondent supported the impugned judgment.

7. We have heard the learned counsel for the parties and have perused the record of the case with their assistance. After the registration of the murder case against the respondent, he absconded and remained fugitive from law and the Court till his arrest. He absented from duty from 6-5-1997 and vide letters dated 8-7-1997, 16-9-1997 and 28-10-1997 addressed at his home address he was directed to immediately resume duty but he failed to comply with the direction. Thereafter, notices were published in the daily "Aaj" directing him to report for duty failing which disciplinary action would be taken against him. In response to the notice published in the press on 6-1-1998, the respondent's wife informed respondent No,2 through an application dated 8-1-1998 that due to murder charge, her husband has gone into hiding and his whereabouts are not known and disciplinary action should not be taken against him till his whereabouts are known. The respondent after his arrest was tried and acquitted by giving him the benefit of doubt by the Additional.

Sessions Judge-V Peshawar on 22-4-2000, whereafter he applied to respondent No,1 for reinstatement in service on 4-5-2000 admitting his absence from duty due to murder case. There is no denial of the fact that the respondent remained absent from duty from 6-5-1997 to 4-5-2000 when he applied for reinstatement in service, as such he remained absent from duty respondent both by post and press but he being an absconder in a murder case did not respond. The respondent cannot be allowed to take premium of his abscondence in a murder case and to use it as a ground for absence from his official duty. He remained fugitive from law and Courts and remained, in hiding himself for a long time and never applied for leave despite notices, therefore, his absence without leave was sufficient ground for his removal from service.

8. Even otherwise, the prosecution on criminal charge and departmental disciplinary proceedings were entirely different as one relates to the enforcement of criminal liability whereas the other is concerned with the service discipline, as such, acquittal on criminal charge had no bearing on disciplinary, proceedings, Reference may be made to Amir Abdullah v. Superintendent of Police and others (1989 SCM R 333).

9. For the foregoing reasons, this petition is converted into appeal and allowed. The impugned judgement of the Service Tribunal is set aside and office order dated 20-6-1998 is restored.