' The appellant is Ex-Tax Clerk in Town Committee, Qila Sobha Singh, District Narowal, who while posted as such in the year 1996 was placed under suspension on grounds of alleged misappropriation of Town Committee funds and theft. A criminal case under section 380 P.P.C. Was also registered against him. The appellant states that as the case was withdrawn from the trial Court, the appellant was accordingly acquitted in that case on 11-2-1997. The appellant hoped to be reinstated, but he was not reinstated. In the meantime, on an application from the complainant, the Additional Sessions Judge ordered trial of the withdrawn criminal case once again. Thereafter, a round of litigation in the High Court started. The appellant maintaining that criminal case could not be restarted in trial Court once he was acquitted, the appellant filed Writ Petitions Nos. 20312 of 1997, 1066 of 1998, 7275 of 2000 and 11426 of 2001. Appellant also prayed through the writ petitions that he should be reinstated in accordance with original acquittal in the trial Court and that further departmental proceedings were unlawful. Learned High Court while deciding Writ Petition Nos.
11426 of 2001 observed that the appellant was entitled to be offered opportunity of hearing during inquiry proceedings and that the Department could hold fresh inquiry into the allegations levelled against the appellant. Appellant was accordingly reinstated through order dated 14-2-2002 and an Inquiry Officer was appointed to hold inquiry against the appellant under Punjab Removal from Service (Special Powers) Ordinance 2000, Following allegations were conveyed to the appellant by the Inquiry Officer:--
1. That you stole official cash from the almirah of the Head Clerk Town Committee, Ahmadabad on various occasions and were caught red-handed on 26-3-1998.
2. That you embezzled Rs,2195and did not deposit the said amount into Town Committee fund.
3. That you were required to remain present in the office of Town Committee, Ahmadabad during the period of suspension under the rules but despite written directions you remained absent for the said period.
4. That your appointment as Tax Clerk at Town Committee, Baddomalhi was found irregular and against the prevailing rules, by the audit authorities during the annual audit for the year 1995-96 while scrutinizing your service record.
' On conclusion of departmental proceedings and in the light of the findings of the Inquiry Officer, the appellant was dismissed from service through order dated 11-7-2002. The appellant filed representation against the impugned order dated 23-7-2002, which was not decided within the statutory period hence this appeal before this Tribunal.
2. Learned counsel for the appellant maintains that when departmental proceedings were already pending against the appellant under E&D Rules of Local Council, the appellant could not be proceeded against under new law/Punjab Removal from Service (Special Powers) Ordinance, 2000.
It is also maintained that order of dismissal should have been passed by the concerned authority/Governor as no delegation was made for the exercise of powers to the Authority to pass the impugned orders. Is also maintained that order was passed mechanically and that no proper inquiry was held and the appellant was not given the opportunity to defend himself in the course of inquiryproceedings. It is further maintained that the Inquiry Officer was personally biased against the appellant and that inquiry was not conducted impartially. It is further urged by the learned counsel that the allegations were also false since the amount recovered from the pocket of the appellant was in fact the amount, which the appellant had to deposit into the account of the Committee and could not be considered as misappropriated amount. It is also maintained that other allegations were vague and that the appellant had not been stealing anything. It is also contended that no doubt, the appellant was not present in the office during period of suspension but for this purpose appellant was never given directions to remain present. It, is also maintained that allegation of irregular appointment was not in aceordance with the Town Committee Rules and he was qualified to hold the post of Tax Clerk.
3. Appeal is opposed by the respondent and on his behalf by the learned District Attorney and by Mr. Pervaiz Inayat, Malik. Learned counsel for the respondent has argued the case on behalf of the respondent at length pointing out that the fact of absence, was rather frankly admitted by the appellant himself and that in accordance ,with the instructions and also directions given to the appellant he was required to remain present during period of suspension but he never attended the office and he remained absent throughout. It is further maintained that the appellant's acquittal in the trial Court in the first instance could not be considered as his final acquittal because the case was remanded to the trial Court by the concerned Judicial Authority and the case was still pending. It is further maintained that the appellant was caught red-handed in the act of stealing cash placed in the chest/Almirah in the presence of witnesses and therefore, the appellant could not deny those charges. It is also urged by the learned counsel for the respondent that a detailed regular inquiry was held in which the appellant was given full opportunity to defend himself and that cross-examination of witnesses by the appellant is, also on record. It is further maintained that there was no mala fide in the proceedings started against the appellant and the appellant has not been able to cite any instance of personal prejudice and bias against the Inquiry Officer and the concerned authority. It is also maintained b' the learned counsel for the respondent that the appellant was not eligible for appointment being Matriculate 3rd Division and that appointment was managed by his father who happened to be the Chief Officer of the respondent Committee without any interview, without, determination of comparative merit and, therefore, appointment was ab initio illegal and bogus. It is also maintained by learned counsel for the respondent that the appellant did not make any representation to the Governor as claimed in the appeal, through the Competent Authority and that he has made a misstatement in that connection and on this ground alone the appeal was liable to be dismissed. It is -contended by the learned counsel that in accordance with the orders of the learned High Court afresh proceedings were started against the appellant in the year 2002 when Punjab Removal from Service (Special Powers) Ordinance, 2000 was in force and, therefore,, departmental proceedings could not be conducted under previous E & D Rules, which were no more in force.
4. I have considered the contentions from both sides and also perused the relevant record. I have meticulously gone through the detailed' inquiry report. In the first place, I find that inquiry proceedings were validly conducted under Punjab Removal from Service (Special Powers)
Ordinance, 2000 in accordance with the orders of the learned High Court and the objection raised by the learned counsel for the appellant in that regard was rather misplaced. I further find that detailed and substantial opportunity was given to the appellant in the course of inquiry proceedings to defend himself. Witnesses recorded their statement in the presence of the appellant. The appellant, therefore, cannot say that inquiry was conducted at his back and he was not associated. According to the findings of the Inquiry Officer the appellant had been indulging in recurring practice of stealing cash from chest/almirah in which tax collections were kept and he was caught red-handed through the device of electric alarm. I, therefore, agree with the learned counsel for the respondent that allegations of corruption, theft and misappropriation etc. Were proved against the appellant. I do not find force in the contention of the learned counsel for the appellant that the appellant was not supposed to be present during the period of suspension. I find that directions were given to the appellant to remain present which he did not comply with and remained absent for a long time. Learned counsel for the appellant has pressed the point that when the appellant was initially acquitted by the trial Court, then departmental proceedings could not be continued against the appellant. I find that in accordance with the judgment of the Hon'ble Supreme Court of Pakistan reported as PLD 2002 SC 13, when acquittal was not on merit, the same could not be applicable and relevant in respect of disciplinary proceedings. Moreover, criminal proceedings were also ordered to be restarted by the Additional Sessions Judge. As regards the allegations about irregular appointment of the appellant, I find that there is sufficient material discussed in the inquiry report and also shown to me in the course of arguments by learned counsel for the respondent that appointment of the appellant (made when his father was the Chief Officer of the Committee) was abinitio illegal and irregular. There is a procedure prescribed for recruitment. The appellant being Matriculate 3rd Division would have been definitely been out if a proper competition was held to recruit a Tax Clerk in the Committee. Such appointment were declared irregular and violative of the fundamental rights by the Hon'ble Supreme Court of Pakistan through their judgment reported as 1996 SCM R 1349. Learned counsel for the appellant raised the point that the authority was not competent to pass the impugned orders under Punjab.
Removal from Service (Special Powers) Ordinance, 2000. I find that the Authority was competent since Punjab Removal from Service (Special Powers) Ordinance, 2000 was applicable in the case of autonomous bodies/Local Councils. A general delegation was made by the Governor to the Appointing Authorities, accordingly. Therefore, authority passed the impugned orders under valid and legal exercise of powers.
5. After having considered the arguments from both sides and after having scanned the material produced before me. I come to the conclusion that no injustice was done to the appellant. The appellant has not been able to quote even single instance in support of the bald allegation that the Inquiry Officer or the Authority was personally biased against him. I also find that the appeal/representation claimed by the appellant to have been filed before the Governor was rather dubious. Therefore, considering the all relevant facts of the case as discussed above, the appeal is found without any merit, substance and legal footing and the same is dismissed.