' IFTIKHAR MUHAMMAD CHAUDHARY, J.---By this consolidated judgment we intend to dispose of above-noted appeals being identical on facts and law.
2. The appeals are by the leave of the Court against common judgment passed by the Federal Service Tribunal dated 9th July, 2001 in pursuance whereof except Shaukat Hussain, remaining employees were ordered to be retired compulsorily from service on partially allowing their appeals whereas former was reinstated into service with back-benefits, directing simultaneously that his two increments for three years without cumulative effect shall be stopped.
3. Both the sides have filed instant appeals respectively whereby the employees have claimed reinstatement in service on setting aside penalty of compulsory retirement, and employer had sought reversal of impugned order in toto.
4. Leave to appeal has been granted to examine contentions raised on behalf of both the sides.
5. We have heard the learned counsel for the parties at length and have also gone through relevant material including impugned judgment wherein learned Tribunal had considered the contents of Inquiry Report. For convenience relevant para. There is reproduced herein from below:- - "We have gone through the Inquiry Report but unfortunately out, of 13 incumbents only 6 viz. The present appellants were held guilty whereas the remaining 7 incumbents have either not been held guilty or have been given benefit of doubt. This fact, in our view, is either the tactics of the management to have a parallel union or that there was a promise that they will be exonerated and in fact this has been done as appears from the Inquiry Report. If the show-cause notices are taken into consideration, the same must have been issued on some solid reporting but when the main prosecution witness, who put his appearance before the Inquiry Officer empathetically stated that he had seen only six persons viz. The present appellants to be hoisting the banners. If it was so then what was the necessity of issuing show-cause notice against all the 13 office-bearers, particularly when two of them, namely, Rehmul Haq Qureshi and Noor Ahmed Soomro, were reported to be on leave. At the some time, the Inquiry Officer at page 5 of the report has candidly stated that the prosecution was not able to produce objectionable material but he based his findings on the letters, which was sent by the management to the S.S.P. And the SDM of the area that some banners were hoisted in the office building and there was every possibility that the same could be detrimental to public peace and property. Not only this the Inquiry Officer accepted the statement of those who were not held guilty or those who were given benefit of doubt. They had stated that, no doubt, they had heard about the hoisting of the banners by the President and Secretary, viz. Fazal Ahmed Essani and Nazeer Ahmed Butt, but nowhere they have stated that they had seen them personally to be hoisting the banners, which were containing objectionable slogans against the Chairman and that the other members of the Union always used to express no confidence against the President and General Secretary of the CBA Union and had demanded early elections.
One of the incumbent, Noor Ahmed Soomro had even gone to the extent that when he expressed his grievance. He was suspended along with other members of the CBA Executive Council by the President vide letter dated 24-12-1996. This fact clearly supports our view that the management/respondent wanted to create a parallel union and it was on account of this fact that out of 13 incumbents, who were given show-cause notices, 7 were exonerated by the Inquiry Officer on one ground or the other. Even the other factor which is basis of our disagreement with the Inquiry Report is that eye-witness was examined by the Inquiry Officer who could have clearly stated that he had seen the present appellants to be hoisting the banners and even the main prosecution witness, Mr. Qureshi who according to the Inquiry Officer, had seen the occurrence 10- 15 minutes was not in a position to have given the minute details of the occurrence as he was not able to note or remember the same. This shows that the Inquiry Officer had based his findings or mere hearsay evidence and particularly when no objectionable material was said to have been recovered, it could be said that no proper inquiry was held."
6. Above discussion by the Tribunal persuades us to hold that the employer had failed to substantiate allegations against the employees.
7. Mr. Mehmood A. Ghani learned counsel appearing for respondents, when confronted with the above findings and was called upon to satisfy us as to whether under the facts and circumstances, the charge of misconduct against them has been established in view of the Inquiry Report dated 23rd June, 1997 wherein the Inquiry Officer himself had observed that the "prosecution" has failed to produce any objectionable material against them as according to the witnesses the banners had been removed on the same day after some time. Similarly; the second Inquiry Officer in his report failed to discuss the contents of the letter allegedly written by Nazir Ahmed (appellant) to the President of Pakistan making scandalous allegation against the then Chairman. He sought instructions from the employer a d stated that if the appellants Nazir Ahmad Butt and others are reins ated in service without back-benefits the employer has no objection.
8. On the other hand learned counsel for the employees has failed to satisfy us as how they are entitled for back-benefits when there is no evidence on record so show that during the period of termination of their services till the date of reinstatement they, were not engaged in any profitable job, and for such reason he also conceded for their reinstatement in service without backbenefits.
9. Thus in view of above position, the appellants Nazir Ahmad Butt and others are directed to be reinstated in service from the date of their termination on 3rd October, 1997 without back-benefits.
Similarly Civil Appeal No.2421 of 2001 is accepted and Shaukat Hussain is ordered to be reinstated into service without back-benefits and punishment awarded to him to the extent of stoppage of two increments for three years without cumulative effect is set aside.
' The above appeals stand disposed of with the consent of parties counsel. No order as to, costs.