' JAVED IQBAL, J--- This petition for leave to appeal is directed against the judgment dated 30-3- 2002 passed by learned Federal Service Tribunal, Islamabad, whereby the appeal preferred on behalf of Zahid Sharif (respondent) has been accepted and the order dated 30-9-2000 has been set aside with the direction that the respondent should be reinstated in service with back-benefits.
2. Briefly stated the facts of the case are that respondent had joined WAPDA as LS-II (BPS-11) on 7- 11-1984 and subsequently promoted as LS-I (BPS-12) w,e,f, 28-8-1988. He was awarded BPS-16 on 16-6-1998. A criminal case was got registered for obtaining illegal gratification under section 161 C.P.C. Read with 5/2/47 PCA against the respondent with Police Station Anti-Corruption, Sahiwal on 8-6-2000. The respondent was suspended on 8-6-2000. A letter of explanation under rule 5(iv) of Pakistan Employees (E&D) Rules, 1978 (hereinafter referred to as the Rules) was issued to respondent on 26-8-2000 wherein it was alleged that he was apprehended while receiving Rs,2000 as an illegal gratification in presence of Magistrate as, a result of raid conducted by the Anti- Corruption Department and thus found guilty of misconduct under relevant Rules. The allegations were denied by means of reply dated 11-9-2000 but the final show-cause notice was served upon the respondent on 16-9-2000 which was replied on 23-9-2000. On 30-9-2000 the respondent was dismissed from service by means of order dated 30-9-2000 by the Executive Engineer. Being aggrieved a departmental appeal was preferred on 27-10-2000 which was not responded and consequently the respondent approached the Federal Service Tribunal vide Appeal bearing No,93(R)(CS) of 2001 which has been accepted by means of judgment impugned, hence this petition.
3. It is mainly contended by Sh. Zamir Hussain, learned Advocate Supreme Court on behalf of petitioner that the legal and factual aspects of the controversy have not been examined in its true perspective by the learned Federal Service Tribunal which resulted in serious miscarriage of justice.
It is urged with vehemence that learned Federal Service Tribunal has set aside the order of dismissal merely on the ground that it was not passed by the competent authority and more so that regular inquiry was required to be conducted. The learned Advocate Supreme Court contended that on the basis of hyper-technical objection the dismissed order could not have set aside and by remanding the matter the irregularity if any could have been cured. It is canvassed that serious charges of corruption were levelled against the respondents who was caught red- handed as a result of raid conducted by the Anti-Corruption Establishment in presence of Magistrate which aspect of the matter has been ignored unjustifiably by the learned Federal Service Tribunal. It is argued that under rule 5(iv) of the Rules it is permissible for the competent authority to dispense with the inquiry through an Inquiry Officer or the Inquiry Committee and thus the dispensation of inquiry by the competent authority i,e, Chief Engineer was in accordance with law and hence the view of learned Service Tribunal is not maintainable. It is pointed out that fair and proper opportunity of hearing was afforded to the respondent and after having gone through the entire record with diligent application of mind the order of dismissal was passed by the Executive Engineer instead of Superintending Engineer which is not a grave illegality but it is an irregularity which could be cured. It is also argued that the direction enumerated in the judgment impugned for the reinstatement of respondent with back-benefits has been given without having gone through the entire record and merits of the case but merely on the basis of sheer technicalities.
4. Mr. Muhammad Iqbal, learned Advocate Supreme Court appeared on behalf of respondent and seriously controverted the view point as canvassed by Sh. Zamir Hussain, learned Advocate Supreme Court on behalf of petitioner by contending that the dismissal order was passed by the Executive Engineer having no authority whatsoever and being ab into void and illegal order the same has rightly been set aside by the learned Service Tribunal. It is urged with vehemence that the respondent was acquitted in criminal case from the Court concerned and hence the question of initiation of any further proceedings does not arise. It is also agitated that respondent has suffered mental agony and torture without any legal or moral justification and remand of case would further prolong the matter as time consuming and exhaustive formalities are involved in departmental proceedings.
5. We have carefully examined the respective contentions as agitated on behalf of petitioner and respondent in the light of record of the case and relevant provisions of the Rules. The judgment impugned has been perused carefully which is indicative of the fact that it mainly prevailed upon the learned Federal Service Tribunal that since the 'dismissal order was passed by Executive Engineer who was not competent authority, therefore, it has no legal effect altogether and resultantly the dismissal order being ab initio void and without jurisdiction was set aside. A careful scrutiny of the entire record would reveal that serious charges of corruption were leveled against the respondent and his acquittal from the Court does not impose any bar for the initiation of disciplinary proceedings as the acquittal of respondent would have no bearing on the disciplinary proceedings altogether. In this regard we are fortified by the dictum laid down in case titled Arif Ghafoor v. Managing Director PLD 2002 SC 13, wherein it was observed as follows:-- "The 'disciplinary proceedings' and 'criminal proceedings' are quite distinct to each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction. The decision of one forum would have no bearing on the decision of other forum in any manner whatsoever. In the said background, it would be a misconceived notion to consider the acquittal in a criminal trial as an embargo against disciplinary proceedings. The learned Federal Service Tribunal has rightly referred the law as laid down in 1996 SCM R 315."
6. We have also adverted to the main objection as raised by the learned counsel for respondent that inquiry should have been conducted in order to find out the reality but the provisions as contained in rule 5(iv) of the Rules the competent authority is empowered to dispense with the inquiry through an Inquiry Officer or the Inquiry Committee and thus it was not mandatory for the department to hold an inquiry. There is no denying the fact that inquiry was initiated but subsequently dispensed with at the direction of Chief Engineer who being the competent authority and authorized to pass such a direction and thus no illegality whatsoever has been committed in this regard. All that the rule requires is that the competent authority should make a decision on the question whether an inquiry should be held or not, and if it decides not to hold an inquiry, it is bound to inform the accused in writing of the action proposed to be taken in regard to him and the grounds of such action. The action against respondent was taken in accordance with relevant provisions of the Rules. The petitioner was also afforded with opportunity of personal hearing and therefore, by making substantial compliance of the Rules the question of any prejudice does not arise.
7. Insofar as imposition of major penalty is concerned the competent authority was also empowered to impose major penalty in pursuant to the provisions as, contained in rule 5(iv) of the Rules. The only point which needs consideration is that the order of dismissal was passed by the Executive Engineer instead of Chief Engineer i,e, the competent authority. As discussed hereinabove all the necessary formalities as envisaged under the rules have been adhered to and the order of dismissal was passed after affording proper opportunity of hearing to the respondent against whom serious allegation of corruption was levelled. In view of the said scenario it can be inferred safely that the order was passed by the Executive Engineer under some false impression or inadvertent omission and on the basis whereof all the proceedings conducted in accordance with the rules cannot be declared ab initio void. Be as it may it is worth-mentioning here at this juncture that the direction regarding dispensation of inquiry was given by the competent authority and summary procedure was preferred to be followed, therefore, no fresh inquiry can be held again as it would cause serious prejudice to the respondent and the department would be in an advantageous position to fill in the gaps, benefit whereof, if any should be given to the respondent.
8. In the light of what has been discus d hereinabove we are inclined to convict this petition into appeal, which is accepted and the judgment impugned is hereby set aside and the case is remanded to the competent authority with the direction to decide the matter within a period of two months on the basis of available evidence and no fresh inquiry shall be conducted in view of its earlier dispensation by the Chief Engineer.