' RASHID ALI MIRZA (MEMBER).--- While the appellant had been working as Security Guard, following show-cause notice dated 11-5-1999 was issued to him:-- "You were detailed on duty from 0900-2100 hours on 30th March, 1999 in the Flight Handling. During the loading of baggage on Flight PK336, Vigilance staff recovered three gold bangles from the possession of Loader Safdar Hussain Shah. At the time of recovery of gold bangles you were also present in the Aircraft hold along with Loaders Safdar Hussain Shah and Nazir Ahmed. Loader Safdar Hussain Shah confessed in his statement that you also connived and abetted in the above mentioned theft.
(2) You are hereby issued this show-cause notice as to why disciplinary action should not be taken against you for misconduct on your part under PIA Service and Disciplinary Rules, 1985 Clause 75, sub-clause (t) incorporated in PIA Personnel Manual.
(3) Your reply should reach this office within 72 hours on receipt of this letter failing which further disciplinary action will be taken against you.
(Sd.) Ahsan Siddique)
Security Manager (South)."
' The appellant replied the said show-cause notice vide his reply dated May 14, 1999 and denied the allegations contained therein. It appears that his reply was found unsatisfactory and vide letter dated 25-8-2000, he was released from duty.
2. Being aggrieved by the order of his release, the appellant preferred a departmental appeal on 22-9-2000, which was rejected vide order, dated 25-10-2000; hence, this appeal filed on 28-11-2000 praying to set aside the impugned order, dated 25-8-2000 and order his reinstatement in service with full back benefits.
3. The respondents resisted the appeal by filing their comments wherein they justified the action taken against the appellant. It has been stated in the comments that the appellant being employed with the respondent No,1-Corporation which is a service oriented industry meant to serve its customer, therefore, from the employees of the respondent-Corporation a higher degree of financial integrity is expected. They stated that the appellant was detailed on duty on 30-3-1999 in the Flight handling. During the loading of baggage on Flight PK-336, the Vigilance Staff recovered three gold bangles from the possession of loader Safdar Hussain Shah. At the time of the said recovery of gold bangles the appellant was also present in the Aircraft hold along with loaders Safdar Hussain Shah and Nazir Ahmed. The said loader Safdar Hussain Shah confessed in his statement that the appellant also connived and abated in the said theft. Therefore, the appellant was issued show-cause notice, who submitted his reply and after inquiry conducted through Inquiry Officer Shamshad Ahmed, Security Manager. The Inquiry Officer, after conducting the inquiry submitted his report, finding the appellant guilty of the charges, and after giving him opportunity of personal hearing, he was dismissed from service.
4. We have heard the learned counsel for the parties and have also perused the record carefully.
We have also gone through the authorities cited at the bar.
5. The learned counsel for the appellant argued that entire case against the appellant depends upon the confessional statement of co-accused Safdar, which statement has no value in the eyes of law; that the appellant was booked in F.I.R. And was finally acquitted vide order, dated 8-2-2000, whereas the dismissal order was issued on 25-8-2000; hence, the appellant could not have been dismissed from service by the respondents and such action is mala fide and unlawful; that four persons were involved in the incident and only appellant has been punished on the basis of evidence of co-accused, who has been retained in service, which action of the respondents is mala fide and amounts to discrimination; that at the time of passing the rejection order, dated 25- 10-2000 no personal hearing was afforded; hence, action of the respondent is unlawful; that fact finding inquiry was used to pass the impugned order.
6. The main contention of the learned counsel for the respondents was that the theft and recovery of the stolen bangles having been taken place during the duty hours and while appellant Abdul Karim was present in the Aircraft at the place of the theft and recovery he was liable and responsible for the incident, as he had failed to prevent the theft in the Aircraft. He argued that since it was the duty of the appellant to prevent any untoward incident in the Aircraft where he was posted he was responsible for such incident as per PIA Rules. The learned counsel argued that criminal proceedings and the domestic inquiry held against the appellant are two independent and separate proceedings; hence, his acquittal in the criminal case has no bearing to the result of the domestic inquiry. He stated that scope of criminal inquiry is different from that of a departmental inquiry under the said Rules.
7. We have considered the arguments of both sides. One of the most crucial point involved in the appeal is the discrimination against the appellant as much as three persons, who were co- accused and acquitted with the appellant were allowed to remain in service while disciplinary action has been taken against the appellant by dismissing him from service although his case at the most falls within the purview of negligence. So far as theft is concerned there were only three persons in the bay viz. Safdar Hussain, Nazeer and appellant Abdul Karim. Admittedly, commission of theft was not witnessed by anyone. However, recovery of three gold bangles was made by Vigilance Team from Safdar Hussain during the process of loading. The main culprit was Safdar Hussain. Whether Nazeer or appellant had any hand in the theft or whether they had the knowledge that Safdar Hussain had in his possession bangles in question needed to be proved by evidence but there is no evidence to that effect except the hearsay evidence and the so-called confession of accused Safdar Hussain before the police or Vigilance Team. The appellant cannot be connected to the said confession of Safdar Hussain. It is a settled principle of law that in case of denial having made such statement, such alleged confession, in the circumstances, could be used against the accused only if person before whom same was alleged to have been made, would have appeared in inquiry in presence of accused with opportunity of cross-examination. In the present case, nothing appears to have been done. A perusal of record shows that respondent-PIA had adopted different methods for different officials in one and same case. In the case of present appellant a regular inquiry was ordered which was conducted by Shamshad Ahmed who in his report had stated that, "the accused had not taken body search of the loaders properly and also intentionally remained oblivious of the above said theft/pilferage occurred in his presence. His connivance with the loaders in the attempted theft/pilferage is thus, established in the circumstances of the case". The learned counsel for the respondents was asked to satisfy the Tribunal about discrimination meted out to the appellant, but no such thing has been brought on record, hence we are constrained to hold that the double standard and discriminatory treatment on the part of respondents itself is sufficient to vitiate the whole proceedings. Reliance is placed on 1993 SCMR 603 and 2003 PLC (C.S.) 1306. We have also found that although a departmental inquiry was conducted, but it was defective and improper and not as per settled rules of precedence laid down by the Honourable Supreme Court. Reliance is placed on 1985 PLC (C.S.) 518. The Honourable Supreme Court in a number of cases has held that after the inquiry, second show-cause notice has to be issued, copy of inquiry proceedings and inquiry report has also to be supplied and an opportunity of personal hearing has also. The facts of the above referred judgment fully apply to the case in hand, as the appellant was also acquitted of the charges by the Vth Judicial Magistrate, Malir Sindh, vide judgment dated 8-2-2000.
8. In view of the above discussion, we hold that the impugned order of dismissal passed against the appellant is not only illegal, but having been passed in a discriminatory manner. We, therefore, allow this appeal, set aside the impugned orders dated 25-8-2000 and 25-10-2000 and direct the respondents to reinstate the appellant in service with full back benefits for the period the appellant remained out of job provided that the appellant shall submit an affidavit before the competent authority to that effect.