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S.A. No.23 of 2007, decided on 23rd July, 2010.

----Ss. 3 & 10---Balochistan Service Tribunals Act (V of 1974), S.4---Removal from service---Appellant was removed from service on the basis of registration of a criminal case against him and the conviction and sentence passed against him, which ultimately was set aside and appellant was honourably acquitted of the charge---Validity---Impugned removal order was not sustainable and the appellant was entitled to be reinstated in service---It was a case of hardship as the appellant had suffered a lot for the wrongs committed by the others---Appellant, in circumstances, was entitled for his pay and other allowances, benefits and facilities during the period he remained under suspension---Appellant, however was not entitled to get salaries of said period on the principle of "no work no pay"---Order of removal from service was set aside and appellant was directed to be reinstated in service with back benefits from the date of his suspension till date of his reinstatement.

2001 SCMR 269 and 1998 SCMR 1993

W.N. Kholi for Appellant.

Naseer Ahmed Bangulzai, A.A.-G. for Respondent

Date of hearing:24th June, 2010.

This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the appellant against the order dated 14-4-2007 whereby he was dismissed from service.

2. The relevant facts in small compass are that the appellant was appointed as Medical Officer on 23-1-1990 and was initially posted in Civil Hospital, Quetta. Thereafter he was transferred to Helpers Eye Hospital and consequently was transferred and posted as Medical Officer at Basic Health Unit Shinkenr, District Pishin, where he remained working till 17th October 2000. Meanwhile, an F.I.R. No.7/2000 was registered on the report of Medical Superintendent Helpers Eye Hospital, Quetta, with the Anti Corruption Establishment under sections 409, 420, 467, 468, 471/477-A, P.P.C. read with section 5(2) Act of 1947 against Mr. Taj Muhammad Cashier. As per appellant, during the course of investigation of the case, he was also falsely implicated in the said case and was challaned. He was found guilty of the charge and was sentenced to different terms through judgment dated 31-10-2002. The appellant being aggrieved of his conviction filed Criminal Appeal No.292 of 2002 before the honourable High Court of Balochistan. He was dismissed from service through order dated 14th April 2007.

3. The appellant being aggrieved of the order of dismissal made representation, which remained unturned, lastly while finding no other way out, he approached this Tribunal by filing the instant appeal.

4. On the other hand, the respondents contested the appeal on legal and factual aspects by filing their written reply.

5. We have heard the learned counsel for the parties at length and also perused the record with their valuable assistance.

6. Mr. K.N. Kohli, learned counsel for appellant contended; that since there was no other allegation and appellant was dismissed from service on the basis of registration of a criminal case and the conviction and sentence passed, which was ultimately set aside and appellant was honourably acquitted of the charge therefore, he is entitled to be reinstated in service with all back benefits. In support of his contention learned counsel placed reliance on the cases reported in 1998 SCMR 1993 and 2001 SCMR 269.

7. Mr.Naseer Bangulzai, learned A.A.-G. opposed the appeal on the ground, that appellant was not acquitted honourably, as such, he is not entitled to be reinstated.

8. The contention of Mr. K.N. Kohli, Advocate, that the appellant was only dismissed from service on the basis of Judgment passed in the criminal case and there was no other departmental case against the appellant, is not disputed. As regards the acquittal of appellant, learned counsel contended; that since the acquittal has not been defined in the service laws nor in the Code of Criminal Procedure, thus, all kinds of acquittals, are reckoned to be honourable and no distinction can be made. In this behalf, he referred to the dictum laid down by honourable Supreme Court reported in 1998 SCMR 1993, relevant para wherefrom is reproduced hereinbelow:---

9. The learned Advocate-General, when was confronted with the same, he could not give any satisfactory reply.

10. Since the appellant, was removed from service on the basis of conviction passed against him by the Anti-Corruption Court, ultimately culminated in honourable acquittal of appellant, as such, the impugned order is not sustainable and appellant is entitled to be reinstated in service.

11. Mr. W.N. Kholi, further argued that, appellant may be re-instated in service with all back-benefits. The record reveals that the appellant was suspended on 17-10-2000 while termination order was passed on 14-4-2007 with effect from 31-10-2002. It is admitted position of the case that the appellant remained under suspension right from 31-10-2002 till his termination without getting his salary. His termination order was passed on 14th April 2007 with effect from 31-10-2002 i.e. the date of his conviction. It is specifically provided under F.R.53(b) that:---

12. In view of the above mentioned Principle of Law a civil servant is very much entitled for his pay along with other benefits during the period of his suspension. It is a case of hardship and the appellant has been suffered a lot for the wrongs committed by others. He is entitled for his pay and other allowances, benefits and facilities during the period he remained under suspension i.e. from 31-10-2002 till 14-4-2007. As far as salaries of the period from 14-4-2007 till date are concerned, on the principle of no work no pay, the appellant is not entitled to get salaries for such period.

13. In view of the above discussion, the appeal is accepted. The order of dismissal of appellant from service dated 14-4-2007 is set aside and he is directed to be reinstated in service with all back-benefits from the date of his suspension till date.

14. Parties are left to bear their own costs. File after completion be consigned to record.

H.B.T./17/BST Appeal accepted.

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