' ABDUL HAMEED DOGAR, J.--- By this common judgment, we propose to dispose of Civil Petitions Nos.74 and 75 of 2002 as they arise out of judgment, dated 24-11-2001 passed by the Federal Service Tribunal, Islamabad (hereinafter called as "the Tribunal) whereby Appeal No,1886(R) of 1999 and 117(R)(CE) of 2000 filed by the petitioner were dismissed. It is against the above said judgment, the petitioner seeks leave to appeal.
2. The relevant facts for the disposal of the instant petitions are that the petitioner joined the service of respondent-Bank as Clerk/Cashier on 19-5-1975 and was dismissed from service on 5-2- 1980 on the charge of dishonesty and theft. The respondent-Bank lodged a criminal case against the petitioner and others on 12-3-1979 under Sections 409, 419, 468 and 471, P.P.C. And in consequence whereof he was arrested and was sent to jail. It was on 26-4-1979, following charge- sheet was served upon the petitioner while he was in jail.
"(i) That he had opened three fictitious S.B. Accounts Nos.26860 (Muhammad Ghani Sheikh)
No,26873 (Muhammad Fazil) and No,26891 (S. Matloob Hussain Shah) for fraudulent transaction amounting to Rs,13,550 which pertained to F.D.Ds. Stolen from the R.M.S. Department.
(ii) That he had stolen and destroyed the account opening Form of S.B. Account No,26860 of Muhammad Ghani Sheikh which was a permanent record of the Bank."
' The petitioner denied the charges and submitted his reply from inside the jail. Being dissatisfied with the reply of the show-cause notice, a detailed inquiry was ordered which was concluded on 18-9-1979 by Inquiry Officer who found him guilty of misappropriation and destroying the bank record thus recommended for major penalty of dismissal. Accordingly, the petitioner was dismissed from service on 5-2-1980 by respondent-Bank.
3. The petitioner availed his remedy before the Labour Court which vide order dated 13-3-1985 accepted his grievance petition and set aside the order of his dismissal and directed his reinstatement into service with back-benefits within a week. This judgment of the Labour Court resulted into two appeals filed before the Punjab Appellate Tribunal, one by the respondents praying for setting aside the judgment whereas other by the petitioner claiming benefits with wages. The learned Appellate Tribunal vide judgment, dated 25-2-1985 accepted the appeal of the Management of the Bank and set aside the above mentioned order of the Labour Court On the question of jurisdiction and returned the grievance petition to the petitioner for presenting the same before the N.I.R.C. Observing that the Wage Commission Award was applicable.
4. The petitioner preferred Writ Petition No,94 of 1986 before the Lahore High Court, Rawalpindi Bench, and the learned Single Judge allowed the petitioner to perform duty in the bank by interim order of status quo dated 10-3-1986. But later on 14-10-1990, on the statement of the counsel for the petitioner, the said petition was disposed of by the Lahore High Court due to the insertion of section 2-A in the Federal Service Tribunals Act. On the same day, the respondents terminated the services of the petitioner on the ground that the stay order issued by the Lahore High Court in the above said writ petition stood vacated and order of dismissal dated 5-2-1980 was restored, thus, he was relieved from service.
5. The petitioner filed appeals before the Tribunal, which were allowed vide judgment, dated 9-12- 2000 and was reinstated in service mainly on the ground that he was acquitted from the criminal case. Respondent feeling aggrieved, preferred Civil Petition No,574 and 665 of 2001 before this Court which vide order, dated 8-5-2001 were converted into appeals and were allowed. Both the matters were remanded to the Tribunal for decision of the appeals expeditiously as far as possible within a period of three months preferably.
6. After remand, the Tribunal maintained the order of dismissal dated 5-2-1980 of the petitioner and dismissed his appeals mentioned above vide impugned judgment, hence the instant petitions.
7. So far as Civil Petition No,74 of 2002 is concerned, it is barred by five days for which no plausible explanation has been furnished by the petitioner. The petitioner on insertion of section 2-A in the Service Tribunals Act, withdrew his Writ Petition No,94 of 1986 before the High Court on 14-10-1999 and on the next day, he without invoking the departmental remedy, filed Service Appeal No,1886(R) of 1999 before the Tribunal, whereas filed another Appeal No,117(R)(CE) of 2000 before the Tribunal after exhausting the departmental remedy against the respondent's order dated 14-10-2000. Since both these appeals have been disposed of by the impugned judgment as such we propose to dispose of the same by common judgment.
8. We have heard Ch. Sadiq Muhammad Warraich, learned Advocate Supreme Court for the petitioner and Mr. Ajmal Kamal, learned Advocate Supreme Court for the respondents and have gone through the record and the proceedings of the case in minute particulars.
9. Learned counsel for the petitioner contended that the learned Tribunal has erred in facts and law while dismissing the appeal of the petitioner. According to him, the Tribunal has not examined his case independently on the basis of material collected during the departmental inquiry including the show-cause notice and inquiry report as directed by this Court in remand order dated 8-5- 2001. The entire material collected by the Inquiry Officer in the domestic inquiry, is based on hearsay, illegal and inadmissible evidence which would not at all constitute a valid basis for the dismissal of the petitioner. He next argued that the allegation that the petitioner has opened three fictitious accounts in the name of Messrs Muhammad Ghani Sheikh, Muhammad Fazil and Mutloob Hussain Shah and misappropriated its amount was falsified by the F.I.R. Itself whereby it was said that some Muhammad Aslam introduced such accounts. Learned counsel further argued that the petitioner is found guilty only on the ground that one Railway Mail Service employee Manzoor Hussain was his accomplice and he was found knocking at the door of said Manzoor Hussain. His detailed statement given in defence in the inquiry was not at all considered and was ignored. He went on to state that after the reinstatement on the interim order of the learned High Court, the petitioner was allowed House Building Finance Loan to the tune of Rs,3,76,800 and was promoted as G-III Officer and was also awarded cash payment of Rs,3,000 in lieu of Gold Lapel Pin on 4th September, 1995. He was also awarded one grade increment amounting to Rs,175 on completion of 20 years' service on October 16, 1975. Irrespective of above, he was also issued a letter of appreciation for fetching handsome deposits in token whereof he was awarded with Rs,300 cash on May 5, 1997.
10. Mr. Ajmal Kamal, Advocate Supreme Court for the respondents, mainly controverted the above contentions and argued that in fact the petitioner belonged to a gang of miscreants who used to open fictitious accounts in the banks in the name of fictitious persons and then draw the same illegally. In his case, a detailed inquiry was conducted in which many persons from the bank employees and Mirza Tufail, D.S.P. Who recovered the embezzled amount of Rs,13,550 were examined and all of them had deposed that he was involved in the matter. According to him, he opened a fictitious accounts in the names of Messrs Muhammad Ghani Sheikh, Muhammad Fazil and Matloob Hussain Shah and withdrew the money from the same fraudulently, thus, was rightly held to be guilty of misconduct.
11. It is established from the inquiry report and the record placed on the file that the petitioner in connivance with the other accomplices opened Saving Account No,26860 on 21-10-1978 in the name of Mr. Muhammad Ghani Sheikh. He in the same branch opened Saving Account No,26891 in the name of Syed Matloob Hussain Shah with the introduction of said Muhammad Ghani Sheikh.
Again on 26-10-1978, a Saving Account No,26873 was opened in the name of Muhammad Fazil on the introduction of said Muhammad Ghani Sheikh. On 9-11-1978 a foreign draft for a sum of Rs,9,610 was deposited in Account No,26860 of said Muhammad Ghani Sheikh. By virtue of Cheque No,451702 dated 11-11-1978, a sum of Rs,9600 was withdrawn from the same account.
' Similarly, a foreign draft worth Rs,2,000 was deposited in the account of 26891 of Syed Matloob Hussain Shah and on the same day, the said amount was withdrawn by means of Cheque No,453251 and in the same way a foreign Draft No,1951 was deposited in Account No,26873 of Muhammad Fazil and on 29-10-1978 vide Cheque No,452311 a sum of Rs,1,950 was withdrawn. This all got disclosed on the letter written by respondent-Bank to Muhammad Ghani Sheikh thanking for opening and introducing the above said accounts and in response Muhammad Ghani Sheikh denied the opening and introduction of the above said accounts as according to him, he was already maintaining an Account No,6965 in the said branch since 1967. Sheikh Abdul Waheed, Manager, in order to detect the crime, kept an eye over his employees and saw Manzoor Hussain an employee of Railway Mail Service visiting petitioner in the branch during the bank hours.
Thereafter, it transpired that the petitioner Manzoor Hussain and others used to sit in hotel in Machine Mohallah, Jhelum and sign some papers and divide some amounts among themselves.
The Manager scrutinized the record and found that sum of Rs,13,550 was drawn from the bank through the above false and fictitious accounts and suspected the hand of the petitioner and Manzoor Hussain behind the same. He accordingly lodged F.I.R. On 12-3-1979 at Police Station City Jhelum. During the investigation, Tufail Hussain Mirza, S.H.O., Police Station City Jhelum raided the houses of the petitioner and other accused nominated in the F.I.R. And thus, so many documents consisted of 48 coloured photographs, 48 pass-books of HBL Saving Accounts Nos. And amount of Rs,13,550 were recovered.
12. It would be pertinent to refer here that Investigating Officer examined all the three above- mentioned account-holders, namely, Muhammad Ghani Sheikh, Muhammad Fazil and Syed Matloob Shah, Muhammad Fazil stated that his son wrote him a letter to confirm from him about receipt of draft of Rs,1951. Accordingly, he enquired from the Manager, Habib Bank Limited, Ram Din Bazar Branch, Jhelum, who replied in negative and it was disclosed that the said draft had been encashed by somebody. He was shown cheque book and requisite slip ostensibly bearing signature of said Muhammad Fazil. Similarly, Muhammad Ghani Sheikh and Syed Matloob Hussain Shah also stated in the same manner that their relatives had sent foreign drafts in the above- mentioned bank but were fictitiously withdrawn from the bank. Sheikh Abdul Wahid, Manager, H.B.L.
Concerned produced the following documents during the investigation before the Investigating Officer:-- "Original/genuine documents regarding Account No,20763 of Muhammad Fazal opened on 21-11- 1975.
(i) Account opening form of Muhammad Fazil introduced by Ibrar Hussain Exh.P.I.
(ii) Specimen signature card bearing 2 specimen signatures of Muhammad Fazil.
Documents relating to fictitious Account No,26873 of Muhammad Fazil opened on 26-10-1978.
(i) Account opening form of Muhammad Fazil bearing allegedly the introduction of Ghani Sheikh.
(ii) SS Card bearing two specimen signatures of Muhammad Fazil.
(iii) Deposit Slip No,15961 dated 26-10-1978 Exh.P.60.
(iv) Cheque Book requisition slip of Account No,26878 Exh.P.3.
(v) Deposit Slip No,15963 dated 26-10-1978 for Rs,1951 through which UBL Draft No,261581 was deposited Exh.P.61.
(vi) Cheque No,452311, dated 29-10-1978, on the basis of which,a sum of Rs,1950 had been withdrawn, which cheque bore fictitious signature of Muhammad Fazil.
(vii) A letter of thanks dated 26-10-1978 sent by branch to Muhammad Fazil Exh.P.62.
Original papers of Account No,6965 of Muhammad Ghani Sheikh, opened on 22-8-1967
(i) Account opening form of Muhammad Ghani Sheikh, bearing introduction of Habib Bank, London, Exh.P.63.
Documents regarding fictitious Account No,26860 of Muhammad Ghani Sheikh, opened on 21-10- 1978.
(i) S.S. Card bearing 2 signatures of Muhammad Ghani Sheikh.
(ii) Cheque Book requisition slip showing issuance of cheque book leaves from 451701 to 451710.
(iii) Deposit Slip No,9969 dated 21-10-1978 for a sum of Rs,5 with which account was opened Exh.P.64.
(iv) Deposit Slip No,10, dated 25-10-1978 for a sum of Rs,9,620 on which is written Cheque No,003761 of UBL Mirpur Azad Kashmir Exh. P.65.
(v) Cheque No,451702 dated 11-1-1978 on the basis of which a sum of Rs,9,600 was fraudulently withdrawn in the name of Muhammad Ghani Sheikh (not on record).
(vi) Photostat copy of Draft No,003761 issued by UBL London dated 10-9-1978 paid by UBL Mirpur Exh.P.66.
Documents relating fictitious Account No,26891 of Syed Matloob Hussain Shah opened on 6-11-1978
(i) Account opening form relating to Account No,26891 in the name of Muhammad Ghani Sheikh, bearing a fictitious introduction (not on record).
(ii) Specimen signature card of Matloob Hussain bearing his two specimen signatures (not on record).
(iii) Cheque book requisition slip showing issuance on 6-11-1978 of cheque book bearing leaves from 453251 to 453260 (not on record).
(iv) Deposit Slip No,68895 dated 6-11-1978 for a sum of Rs,10 with which account was opened Exh.P.67.
(v) Deposit Slip No,68896 dated 6-11-1978 for the sum of Rs,2,000 on which Draft No,094953 is written P.68:
(vi) Original Draft No,094953 issued by HBL Knight Bridge Branch, London, for a sum of Rs,2,000 dated 23-10-1978 in the name of Syed Matloob Hussain Shah P.69.
(vii) Cheque No,453258 dated 7-11-1978 on the basis of which a sum of Rs,2,000 was withdrawn from Account No,2689 on 7-11-1978 under the name of Syed Matloob Hussain Shah (not on record).
(viii)Letter dated 11-1-1978 from HBL, Ramdin Bazar Branch, Jhelum, in which Syed Matloob Hussain Shah was requested to come to the bank which letter was returned undelivered on the ground that the addressee was not available on the said address."
13. It has also come on record and has been established in the inquiry that the petitioner in connivance with other accomplices was engaged in opening fictitious accounts and withdrawing the amount therefrom fictitiously in the fake names, thus, misappropriated the bank drafts and was rightly found guilty of the misconduct. The contention of the petitioner's counsel that the dismissal of petitioner consequent to the departmental proceedings, would be of no legal consequence as he had been already acquitted by the competent Court of law in criminal proceedings is devoid of force in view of the dictum laid down by this Court in the case of Inspector-General of Police, Punjab, Lahore and others v. Muhammad Tariq 2001 SCM R 789 wherein it has been held that the acquittal in criminal cases would not debar the departmental authority to take action against delinquent in accordance with law and rules. Such acquittal does not give to a delinquent clean certificate of his absolvement from the departmental proceedings. Both the proceedings are conducted respecting the case registered against delinquent while the departmental proceedings are regarding the charges of malversation and misconduct. Both the proceedings, however, can go side by side as their nature is totally different. It has also been observed that penalty imposed on a civil servant as a consequence of departmental proceedings under the Efficiency and Discipline Rules, after the accused officer has been A acquitted of a criminal charge, is not barred. Rule 37 of the Rules Governing the Service of Employees of Habib Bank Limited, also provides that when an employee of the Bank is guilty of misconduct the competent authority is empowered to impose upon him major penalty of dismissal from service.
14. In view what has been discussed above, we are of the considered opinion that the petitioner has failed to make out a case for interference. Resultantly, while maintaining the impugned judgment, both the petitions are dismissed and leave to appeal refused.