' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 212(3) of Constitution of the Islamic Republic of Pakistan has been directed against the judgment dated 14-4-2004 passed by the Federal Service Tribunal whereby the appeal filed by the respondent against the order of his dismissal from service under Removal from Service (Special Powers) Ordinance, 2000, hereinafter called 'the Ordinance', passed by the departmental authority, was set aside and he was reinstated in service.
2. The respondent, a Deputy Director in National Book Foundation an organization controlled by the Federal Government was served with show-cause notice in the following manner:-- "(i) Running of a private business or as an employee of. NationalInstitute of Computer Studies, F-7 Markaz, Islamabad, without prim; permission of the competent authority.
(ii) Letter dated 11-8-1998 addressed to Mr. Simon Huang Channel Sales Manager NCS/VUF Pacific was signed by you in the capacity of Director Academic Affairs of the said business and F.I.R. No,374 dated 23-11-2001 was lodged by Mr. Mansoor Hasan Khan, Advocate, against you and Major (Retd.)
Muhammad Aslam with Golra Police Station Islamabad alleging the you have received 25 to 150 US dollars per student in lieu of issuing some educational certificates for different examinations. You along with Major (Retd.) Muhammad Aslam defaulted to pay US Dollars 7013 as per agreement as a result of which a case was registered against you under P.P.C.34-420/406.
(iii) You failed to reply the charges conveyed to you in writing vide Letter No,579 HAA542, dated 2nd March, 2002, even today the 30th instant whereas your reply was supposed to be submitted by 28th February, 2002, the latest."
3. In reply, the respondent pleaded that allegations were without any foundation and denied the same as under:- "(1) The information provided to the competent authority by the complainant, M/s. Khan and Associates is false, frivolous vexatious with a motive to harass me for ulterior motives.
(I) The allegation is wrong hence, denied.
(II) My name has been mentioned in the said F.I.R. By the complainant with mala fide intention just to harass me for ulterior motives in connivance with police of Golra Police Station, Islamabad. Golra Police Station, Islamabad has no jurisdiction to take cognizance of the matter because neither any of the parties resides within the territorial limits of Police Station Golra or any alleged occurrence took place within its jurisdiction. The Investigating Officer of the said police station after investigating the matter found that no criminal breach of trust was committed, therefore, section 406 was deleted from the said F.I.R. On 9-2-2002, hence, it is evident that I did not receive any amount so there is no question of any default of payment on my part. The allegations in the said F.I.R. By the complainant are just a concocted story. The matter is still under inquiry by the orders of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi.
(III) It is not correct that I failed to reply the charges conveyed to mein writing vide Letter No,579- HAA542 dated 2-3-2002. I submitted my reply on 2-3-2002 and denied all the charges and also pointed out that the matter was sub judice and the Honourable High Court had directed the S.S.P., Islamabad for an inquiry into the matter.
(2) As the matter is pending before the High Court and no verdict has been given by the Honourable Court and inquiry by the orders of Honourbale High Court is still under process, therefore, any inference just on the basis of allegations without any proof that I am guilty of gross misconduct is against the well-settled principles of natural justice.
(3) Without conducting an inquiry and without taking into account the result of inquiry which is under process by the orders of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi it is not fair to take any adverse action against me.
(4) The written reply is hereby submitted within time with a request that without due course of law no adverse action may very kindly be taken against me. The detailed reply has been given in the above paras.
(5) The written reply is hereby submitted within time with a request that without due course of law no adverse action may very kindly be taken against me. The detailed reply has been given in the above paras.
' It is therefore, respectfully submitted that the show-cause notice may very kindly be withdrawn.
' The Inquiry Officer, however, having found the respondent guilty of the charge of involvement in the private business submitted his report as under:-- "(1) Mr. Muhammad Arif Raja did issue a letter dated 11-8-1998 to Mr. Simon Huang Channel Sales Manager NCS/VUE/Pacific under his signatures in the capacity of Director Academic Affairs of NICS.
The letter in question does not bear complete a mailing address of NCS/VUE pacific as such it appeared to be faxed resultantly original copy must have retained by Mr. Arif Raja.
(2) M/s. VUE corresponded with Mr. Muhammad Arif Raja on 14-12-2000, 30-3-2000, 14-4-2000 through e-mall in connection with the business transactions with M/s. NICS, Islamabad which proves his business involvement.
(3) Due to alleged involvement of Mr. Muhammad Arif Raja, he was nominated in F.I.R. No,374, dated 23-11-2001 which is still pending.
(4) While in service with NBF, Mr.Arif Raja remained involved in business with foreign entity which is a clear violation of service laws. His action falls under the definition of "Misconduct", Defined in section 2, clause (b) "Removal from Service (Special Powers) Ordinance, 2000" as he neither secured prior permission of the competent authority nor NBF ever granted such permission to engage himself in a private business."
4. The competent authority, in the light of report of Inquiry Officer, having fulfilled the requirement of giving a show-cause notice and personal hearing to the respondent dismissed him from service vide order dated 19-11-2002 which was set aside by the Service Tribunal in appeal filed by the respondent and he was directed to be reinstated in service.
5. Learned counsel for the petitioner has contended that charge against the petitioner relating to the running of private business while in the service of the organization, was proved through the oral and documentary evidence based on the correspondence made by the petitioner as Director Academic Affairs of National Institute of Computer Studies, Islamabad, with Sales Manager of Foreign business concern and perusal of photostat copy of the letters written by the respondent and its reply, available on record, would show that he transacted business with foreign business company in dollars. In addition learned counsel having placed reliance on the criminal case registered against the respondent at the instance of a local advocate in relation to the business affairs of the respondent with the foreign company and his statement before the Inquiry Officer to the effect that the signature on the letter in question resembled with the signatures but the same were not in his hand has contended that respondent had impliedly admitted his involvement in the private business and in absence of any evidence to the contrary, the mere denial of the genuineness of signatures on the letter in question in cross examination, would not be sufficient to exclude it from consideration, rather a strong presumption would be raised regarding his engagement in the business.
6. Learned counsel for the respondent caveat or on the other hand has contended that except the photostat copy of the letter referred to above, no other evidence, oral or documentary, was brought on record to prove the direct or indirect involvement of the respondent in the business of his cousin and in fact he was victimized due to the personal grudge and malice of the Managing Director of National Book Foundation who being annoyed with him for his becoming party in the writ petition filed by the employees of NBF in the High Court against the merger of National Book Foundation and National Book Council. He added that incidentally, pending disposal of the writ petition, an article was published in weekly Takbeer against the Managing Director and he having gathered an impression that respondent was instrumental in publication of said article, initiated the departmental proceedings against him on the basis of fake allegation due to the personal malice and grudge. The learned counsel submitted that the Managing Director with a view to get the desired result, appointed a person of equal official status of the respondent as his Inquiry Officer and in the light of report submitted by him, passed the final order in a mechanical manner.
In nutshell, learned counsel argued that except a photostat copy of the letter allegedly written by the respondent to the Manager of a foreign. Company, which is inadmissible in evidence nothing was brought on record to prove the alleged misconduct.
7. There is no cavil to the proposition that a Government servant while in service, cannot engage himself in private business and running of such a business without permission is misconduct in terms of Government Servants (Conduct) Rules, 1964. In the present case, the basic fact required to be established through the evidence like any other fact, was that in what manner, the respondent was engaged in the private business and what evidence was brought on record to prove this fact.
The genuineness of the signatures of respondent on the allegedly written by him to the Sales Manager of a foreign business company was also required to specifically proved and without proving the above facts, the charge of misconduct could not be proved. The Tribunal, having thrashed out the factual position in the light of evidence brought on the record, has held that the petitioners have not been able to prove the charge against the respondent. The careful perusal of record would show that the petitioner instead of discharging the initial burden of proving the involvement of respondent in the private business through the reliable evidence as per requirement of law, proceeded to raise a presumption of fact regarding his engagement in the business on the basis of documents not admissible in evidence. The respondent in his statement made by him on oath before the Inquiry Officer while denying the allegation of his involvement in the business stated that the signature on the letter, allegedly written by him resembled with his signatures but the same were not in his hand and learned counsel for the petitioner without satisfying us that this portion of the statement of respondent could be legally treated as his admission to the charge, submitted that since under the law no hard and fast rule for raising a presumption has been laid down therefore, in the light of evidence available with the departmental authority, such a presumption could be raised. The learned counsel has neither been able to substantiate his argument nor could convince us that B the finding of fact arrived at by the Tribunal was contrary to the law and facts of the case or was suffering from any infirmity of misreading or non-reading of evidence.
8. The contention of the learned counsel that the Tribunal being an appellate forum the against order passed by the competent authority, was not supposed to reappraise the evidence and disturb the finding of fact before the Tribunal would lie both on question of law and fact and arrived at by the departmental authorities, has no substance. The appeal Tribunal was under legal obligation to decide all questions of law and facts raised before it and this Court is not an appropriate forum to go into factual controversy and reappraise the evidence for determination of question of fact. This is settled principle that the finding of fact arrived at as a result of scrutiny, by a judicial forum even if erroneous, cannot be gone into and disturbed by this Court unless the same are found suffering from some jurisdictional defect. The standard of evidence in the departmental proceedings is certainly not the same as is required to prove a fact before the regular Court and the departmental authorities are also- not supposed to follow the technicalities of the law to ascertain the E genuineness of a document in the manner as is done by the Courts of general jurisdiction but the evidence, oral or documentary, to be used for proving the charge of misconduct, must be of legal character and admissible in law.
9. The examination of the record would reveal that the departmental authorities having raised a presumption on the basis of photostat letter, allegedly written by the respondent, without proving the genuineness of his signature and the existence of original letter, have drawn an inference of the guilt of respondent entirely on the basis of inadmissible evidence. The learned counsel for the petitioner having realized the lacuna in the case, has requested the petitioner may be allowed to hold fresh inquiry into the allegation but we find that the evidence available with the department has already been brought on record and Tribunal having made detail scrutiny of the evidence held that the charge was not proved against the respondent beyond doubt, therefore, it would not be fair to permit the petitioner to hold a fresh inquiry to fill in the lacuna in the evidence to prove the charge. The judgment of the Service Tribunal can be challenged before this Court under Article 212(3) of the Constitution only on a substantial question of law of public importance and in the present case the learned counsel, without raising such a question of law has sought interference of this Court on a controversial question of fact.
10. In the light of foregoing discussion, we find no substance in this petition and the same is accordingly dismissed. Leave is refused.
Leave is refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.