Find a Lawyer

Case No. 845/1109 of 1984, decided on 27th March, 1985.

‑‑ Disciplinary action ‑ Criminal trial ‑ Effect of acquittal by Criminal Court on departmental action‑Police Official involved in corruption case on raid, by Anti‑Corruption Establishment for alleged receipt of illegal gratification ‑ Dismissed from service without regular enquiry and merely by invoking show‑cause notice procedure‑Criminal Court (special Judge‑ Anti‑Corruption) mean while acquitting accused‑Appellate authority on receipt of judg ment of criminal Court converting penalty of dismissal into for feiture of two years approved service and treating intervening period ‑as leave without pay‑Such order passed without examining order of criminal Court but merely on basis of observations of a subordi nate recorded on file that "acquittal of accused by Special Judge was by granting him benefit of abuse of process of Court‑Order of Criminal Court indicating that acquittal granted when found that there was no evidence to connect accused with alleged‑crime and it was not established on record that accused had really accepted illegal gratification‑Observation recorded on file and relied by appellate authority, in circumstances, held, uncalled for and misconceived‑Penalty of dismissal having been imposed for alleged illegal gratification and without regular enquiry impact of judg ment of acquittal by criminal court, in circumstances, held, would be a positive proof of innocence of accused and he had to be reinstated in service thus appellate authority was not justified in imposing impugned penalty‑Service Tribunal accepting appeal, setting aside impugned order with direction that appellant (accused) would be considered to have been reinstated with all back benefits- Punjab Service Tribunals Act. (IX of 1974), S. 4.

P L D 1970 S C 415 and 1980 S.C.M.R. 850 rel.

PLD1973SC589ref.

Sh. Nisar Qutab for Appellant.

A.G. Humayun, District Attorney for Respondents.

‑ Muhammad Bashir, Sub -Inspector of Police, has filed this‑ appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order dated 20th October, 1984, by respondent No. 1, in which he has impleaded the Deputy Inspector General of Police, Lahore Range, Lahore and the Superintendent of Police, Cantonment Division, Lahore, as respondents.

2. By virtue of this appeal be has prayed that the impugned order of respondent No. 1 be set aside and punishment imposed upon the appellant be set aside and period of suspension and period during which the appellant remained out of service because of dismissal be treated as period spent on duty.

3. Brief facts of the case are as under :

On 15th February, 1982 the appellant was involved in a case regis tered with the Anti‑Corruption Establishment on the complaint of one Agha Mahbub ur Rehman on the allegations that the appellant had received a sum of Rs. 700 as illegal gratification prior to the raid and a sum of Rs. 1,300 at the time of raid. The respondent No. 2 vide order dated 5th July, 1982, dismissed the appellant from service on the above charge when the case had not yet been started before the learned Special Judge nor any departmental enquiry was held. The appellant submitted an appeal before respondent No. 1 challenging the order of dismissal by respondent No. 2. In the meantime the appellant was tried by the learned Special Judge Anti‑Corruption, Lahore, who vide his order dated 17th June, 1984, acquitted the appellant under section 249‑A of Code of Criminal Procedure. The respondent No. 1 vide impugned order dated 20th October, 1984 decided the appeal and converted the penalty of dismissal into forfeiture of two years of approved service with Cumulative effect, and the period of suspension was ordered to be treated as such and during the period when the appellant remained out of service was ordered to be treated as leave without pay. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the punishment inflicted upon the appellant by respondent No. 2 was only based upon the fact that the case had been registered against the appellant in respect of demand and acceptance of illegal gratification, and no regular enquiry was held although the charge related to corruption and in respect of which it has been held by this Tribunal as well as by the superior Courts of the land that in such cases, regular departmental enquiry is a must. It has been further submitted that respondent No. 1 while dealing with the appeal observed in paragraph No. 3 that the learned Special Judge, Anti‑Corruption, Lahore vide orders 17th June, 1984, had acquitted the appellant and in the opinion of the Prosecuting Deputy Superinten dent of Police, Sheikhupura, the appellant had been acquitted by the Special Judge by granting him the benefit of abuse of process of Court. According to the learned counsel the opinion given by the Prosecuting Deputy Superintendent of Police was not based upon proper appreciation of the matter, as the acquittal is always treated as honourable acquittal. He has challenged the order of observation of abuse of process of Court as misconcieved and ill‑observed. While relying on rule 7.3 of the Punjab Civil Service Rules he has submitted that when a Government servant who has been dismissed, removed or suspended, is reinstated on his honourable acquittal, he is entitled to full pay to which he would have been entitled if he had not been dismissed, removed or suspended, and the period of this absence from duty will be treated as period spent duty. For this he has relied on P L D 1970 S C. 415 and P L D 1973 S.C. 589, and has submitted that in the said judgments it has been held by their Lordships of the Supreme Court of Pakistan that when the charges of misconduct were found to be unfounded, no other penalty could be imposed after the Government servant has been acquitted. He has further relied on the instructions of the Inspector- General of Police contained in his letter dated 4th March, 1984, in which he directed the Subordinate Officers to follow the instructions rigidly of holding departmental enquiry in cases where the charge‑was of corruption as reported in 1980 S C M R 850.

6. On the other hand learned District Attorney has submitted that it was under the discretion of the appellate authority to convert the penalty of dismissal into lesser penalty and also it was within his powers to treat the period of absence from duty as leave without pay, therefore, no exception could be taken to this decision in this respect.

7. We have given our anxious thought to the arguments advanced by the parties and have perused the judgment of acquittal as well as order of the learned Deputy Inspector‑General of Police, Lahore dated 20th October, 1984 and find that the penalty imposed upon the 'appellant is not based on an independent finding of the D.I.‑G. Police but on the report of the D.S.P. which is as under :‑

"The appellant has been acquitted by .the Special Judge by granting him benefit of abuse of the process of Court."

It seems that the opinion given by the D.S.P. has weighed with the D.I.‑G. Police without elaborating the meanings of the word "benefit of abuse of process of court. The abuse of process of Court can be illustrated by few examples as under :‑

1. When a complainant involves a particular person in a criminal case but factually the fact of the case discloses that the case was purely of civil nature the Court ordinarily will hold that the com plainant has abused the process of Court by converting a civil matter to criminal offence.

2. When a complainant brings any complaint before a criminal court which does not relate to its jurisdiction by involving a particular person, in such matter the Court will ordinarily hold that such like method would be an abuse of process of Court and the person so complained against would take advantage of the same.

In the present case what we find is that no such event of this nature took place and the Court acquitted the appellant when it found that there was no evidence against him to connect him with a crime and it was not established on record that the appellant had really accepted the illegal grati fication as alleged by the complainant. We fail to understand how the D.S.P came to the conclusion that judgment in favour of the appellant was in fact granted the benefit of abuse of the process of Court. If the D.I.‑G. Police would have read this observation to the context so explained above, he would have found himself that such like observation was both uncalled for as well as misconcieved. The fact of the matter is that the appellant was dismissed from service by the competent authority only on the ground that he was involved in the case of illegal gratification and without holding a regular inquiry which he was under obligation to hold, in view of the dictum of the Supreme Court of Pakistan reported in 1980 S C M R 850 the impact of judgment of acquittal in his favour would be a positive proof of innocence and he had to be reinstated in service as held by the superior Courts in PLD 1970 SC 415. When the D.I.‑G. Police accepted the judgment of acquittal and reinstated the appellant in service, be was not justified to impose a punishment of the nature which has been imposed in this case, against him.

8. The result is, we accept the appeal, set aside the impugned orders of withholding of forfeiture of two years approved service with cumula tive effect, as without lawful authority and direct that the appellant would be considered to have been reinstated in service with .all back benefits. Announced in the open Court on 27th March, 1985. There will be no order as to costs.

A. E.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.