' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---The appellant was appointed in Pakistan Post Office in the year 1980. Lastly he had been working as sorter in Karachi in BPS-7 when he was dismissed from service vide order, dated 30-8-2000. He preferred a departmental appeal dated 26-9-2000 against his dismissal which was rejected vide order, dated 5-8-2003. Hence he filed appeal before the Tribunal on 6-9-2003, praying to set aside the impugned order of his dismissal and rejection of his departmental appeal and to reinstate him in service with all consequential back-benefits and continuity of service.
2. The facts leading to the present appeal are that an F.I.R. Being No,7 of 1992 under section 156(1)
(8) of the Customs Act, 1969 was lodged against the appellant on 29-10-1992 by the F.I.A. Alleging therein that the appellant got booked a parcel on 26-10-1992 from G.P.O. Karachi for Dera Dubai, which parcel was opened on 29-10-1992 by the F.I.A. Authorities in presence of officials of Pakistan Post Office and Pakistani currency amounting to Rs,3,20,000 was found in the said parcel.
Consequently, the appellant was placed under suspension vide order, dated 19-11-1992 on the ground that the appellant was involved in F.I.R. No,7 of 1992. There was a lull for about six years and then on 15-7-1998 a charge-sheet was issued to the appellant wherein contents of the F.I.K. As mentioned above were repeated. The appellant replied the charge-sheet. Again there was a silence and after about two years of the issuance of charge-sheet on 18-4-2000 the appellant received a letter on the subject "Enquiry Report" whereby the appellant was directed to submit his explanation within 14 days of the receipt of above letter. In the enquiry report, Muhammad Aleem, A.S. (H.Q.) claimed to be Enquiry officer statement in the alleged equity was recorded by Muhammad Mumtazul Haque, A. S. And on his transfer to Circle Officer the case was transferred to him (Muhammad Aleem). In the said enquiry report the conclusion of the said Muhammad Aleem was that the "charges of misconduct levelled against the accused (appellant) were proved to some extent". The appellant replied the said enquiry report on 30-4-2000, allegedly giving satisfactory explanation of the charges against him but without considering his explanation he was dismissed from service on 30-8-2000 and his departmental appeal dated 26-9-2000 was also belatedly rejected on 5-8-2003 although he was acquitted by the Special Judge (Customs and Taxation), Karachi, vide judgment dated 19-3-2003.
3. In the written statement/written comments filed by and on behalf of the respondents, the initial objection was taken with regard to the limitation and it was stated that the appeal was hopelessly time-barred. It was stated that the departmental appeal' of the appellant was rejected by the Deputy Postmaster Karachi Postal Region-II, vide his Memo. No,SA-77/2000 dated 10-12-2001. It was further stated that the appellant was given an opportunity in the enquiry to defend himself but he failed to defend the charges against him; that the appellant was since found involved in smuggling case, he was rightly dismissed from service by the respondents. About acquittal of the appellant it was stated that he was acquitted by the Special Judge Customs but his acquittal was not honourable acquittal as he was acquitted by giving benefit of doubt therefore, his appeal was liable to be dismissed.
4. We have heard the learned counsel for the appellant and the learned State counsel and have gone through the record of the case as also the authorities cited at the Bar.
5. The learned counsel for the appellant argued that vide judgment, dated 19-3-2003 the Special Judge, Customs had already acquitted the appellant on the same allegations as mentioned in the charge-sheet of this case, therefore, the appeal merited to be allowed as prayed by the appellant.
He pointed out that the alleged enquiry was held by Muhammad Mumtazul Haque but the enquiry report was written by one Muhammad Aleem to whom enquiry was said to have been transferred but there was noting on record to show as to who had transferred enquiry to Muhammad Aleem and whether Muhammad Aleem was appointed as Enquiry Officer or authorized to write the enquiry report. The learned counsel further argued that no show-cause notice was issued to the appellant after the enquiry and he was not personally heard. As such grave illegalities were committed by the respondents in view of which the disciplinary proceedings and the dismissal of the appellant from service could not be sustained. According to the learned counsel all acquittals are honourable acquittal. In support of his arguments the learned counsel relied on Gulab Ali Sahito v. Director-General, Intelligence Bureau, Islamabad and 2 others 2002 PLC (C.S.) 243, Syed Shah Sawar and others v. Karachi Electric Supply Corporation Limited and others 2005 PLC (C.S.)
614, Muhammad Islam, Instructor, Animal Husbandary in-service Training Institute, Peshawar v.
Government of N.-W.F.P. 1998 PLC (C.S.) 1430.
6. The learned counsel for the respondents could not controvert the contention of the learned counsel for the appellant but he vehemently urged that the appeal was hopelessly time-barred.
According to the learned counsel, if the appellant had not received the reply of the departmental appeal he should have within 120 days approached the Tribunal for redressal of his grievance of dismissal from service but he did not do so. The learned counsel for the respondent contended that the appeal of the appellant was reported on 10-12-2001 but he filed the appeal before the Tribunal on 6-9-2003 which was patently and hopelessly time-barred and was therefore, liable to be dismissed for that reason only. The learned counsel for the appellant stated that the appellant had not received any rejection order, dated 10-12-2001 and the respondents had not filed any proof of service of such rejection of appeal upon the respondent. Further that the appellant had, under the law option either to file appeal within 120 days if he had not received the reply of his departmental appeal or he could have filed the appeal within 30 days of the receipt of the rejection order of his departmental appeal; that the appellant had requested the respondents to reinstate him in service after acquittal by the Special judge Anti-Corruption but the respondents turned down his request and rejected his appeal belatedly. The learned counsel for the appellant stated that after acquittal of the appellant the very basis of his dismissal from service was wiped off and he was entitled to be reinstated in service.
7. We have carefully considered the above arguments of the learned counsel for the parties.
8. In the case reported in 2002 PLC (C.S.) 243 final order was passed on 5-7-1997 but it was communicated to the civil servant on 30-9-1999. The civil servant filed the appeal against the final order on 28-10-1999 within 30 days. It was held that such appeal was within time. This authority supports the case of the appellant.
9. So far as the enquiry is concerned as per finding of the Enquiry Officer the charges of misconduct levelled against the appellant were proved "to some extent". It has not been explained or mentioned to what extent the charges were proved against the appellant. The enquiry report besides being vague was not written by an authorized Enquiry Officer as the same cannot be relied in view of the authority reported in 2005 PLC (C.S.) 614. It has been held in the said authority that "a person not appointed as Enquiry Officer but assuming role of co-enquiry officer and also signing the findings, held; not only illegal but unfair and prejudicial to the employee". The contention of the learned counsel for the respondents that the acquittal of the appellant being on the basis of benefit of doubt was not an honourable acquittal was not correct in view of the authority reported in 1998 PLC (C.S.) 1430. It has been held that all acquittals are "honourable" and there can be no acquittal which may be said to be dishonourable. It was further held, "all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their case against the accused on the strength of evidence of unimpeachable character".
10. Apart from other discrepancies pointed out by the learned counsel for the appellant the main point which goes in favour of the appellant in that after the acquittal of the appellant on the same charges there remains no basis for his dismissal from service or for imposition of any other punishment on him on the basis of said charges.
11. In view of what has been stated above, we are inclined to allow this appeal. It is allowed accordingly. Consequently, the impugned order of dismissal of the appellant is set aside and the respondents are directed to reinstate him in service from the date of his dismissal. The intervening period be treated as the kind of leave due or may be due to the appellant.
' Parties are left to bear their own costs.
12. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of Service Tribunals (Procedure) Rule, 1974.