' QALANDAR ALI KHAN (CHAIRMAN).- This appeal by Sajjad Hussain, appellant/Ex-Reader of Anti- Terrorism Court, Hazara Division, Abbottabad, is directed against order dated 14-10-2008 of the Judge, Anti-Terrorism Court (ATC), Hazara Division, Abbottabad, whereby services of the appellant as Reader of the ATC Abbottabad were terminated and the District Accounts Officer was directed to recover Rs,43400/- from the appellant being, value of the stolen articles and also directed revival of the criminal case, earlier registered against unknown persons.
2. Facts of the case, as gleaned from the appeal, are that the 'appellant was appointed as Reader of the ATC, Hazara Division at Abbottabad vide order dated 22-11-2002. He was, however, informed vide order, dated 15-2-2007 of the learned Presiding Officer, ATC that he was going to conduct departmental inquiry against the appellant and that he could apply for long leave. The appellant decided not to proceed on leave, whereupon, he was called upon vide order, dated 16-2-2007 to hand over the charge of his post. Accordingly, the appellant handed over the charge vide order, dated 22-2-2007. Earlier Registrar of the Peshawar High Court had ordered inquiry in the case of theft of computer from the premises of ATC vide letter, dated 16-9-2006 in response to letter of ATC, dated 24-7-2006. Against allegations levelled against the appellant by the first Inquiry Officer, the appellant submitted representation for exoneration, dated 11-6-2007. However, on the receipt of inquiry report, the Registrar. Peshawar High Court asked the Presiding Officer ATC vide letter, dated 6-2-2007 to initiate departmental proceedings against the appellant. The Presiding Officer of ATC accordingly served charge-sheet along with statement of allegations on the appellant on 7-3- 2007, to which the appellant submitted detailed explanation on 10-3-2007. In the meantime, the then Presiding Officer, ATC died of heart attack, and his successor-in-office declared all previous proceedings illegal vide order, dated 20-9-2007 and appointed Mr. Madad Khan, Additional District & Sessions Judge-I, Abbottabad as Authorized Officer to probe in the theft of the articles mentioned in the aforesaid order. As would appear from the said order sheet, the order was made under the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973. The Additional District & Sessions Judge-I, Abbottabad returned the order stating that he could be authorized only by the High Court as he was not subordinate to the Presiding Officer of ATC. Eventually, the Registrar Peshawar High Court directed Additional District & Sessions Judge to proceed in the case as Authorized Officer vide letter, dated 7-12-2007. However, it was observed by the Registrar Peshawar High Court that no case of misconduct or for that matter counselling was made out against the appellant. While acting as Authorized Officer, the Additional District & Sessions Judge-I, Abbottabad appointed Mr. Shah Waliullah, Judicial Magistrate as Inquiry Officer vide order, dated 8-2-2008. After conclusion of probe, the Inquiry Officer declared the appellant as innocent vide his order/findings, dated 28-6-2008, and thus exonerated him of all the charges levelled against him.
The Authorized Officer, however, while relying upon the findings and recommendations of the then Senior Civil Judge; Abbottabad, which had earlier been declared illegal and set aside by the Presiding Officer ATC, held the appellant responsible for theft of the articles and recommended imposition of major penalty on him; and on the basis of report of the Authorized Officer, the Presiding Officer ATC passed the impugned order, dated 14-10-2008 terminating services of the appellant, directing recovery of Rs,43400/ from him as cost of the equipment lost and reopening the police case. The appellant preferred two separate appeals, one to the honourble Chief Justice, Peshawar High Court, Peshawar through Registrar Peshawar High Court, Peshawar and the other to the Secretary Home & Tribal Affairs Department, on 5-11-2008, and when received no response within the statutory period prescribed for the purpose, he filed this appeal on 26-2-2009, inter alia, on the grounds that the impugned order dated 14-10-2008 was unwarranted at law and facts; that the impugned order was not based on true facts of the case, evidence on record and the relevant law; that recommendation of the Senior Civil Judge once declared illegal, unlawful and arbitrary and of no legal effect, could not be subsequently made basis for recommendations by the Authorized Officer or by the Authority for the impugned order; that the only recommendations legally in field were that of the Inquiry Officer which completely exonerated the appellant; that after promulgation of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000, position of N.- W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 was entirely altered; that under the law applicable, the Presiding Officer. ATC was declared as Authority whereas there was no concept of Authorized Officer in the Ordinance; that even under E&D rules the Presiding Officer, ATC was not declared as Authority by the Governor of the Province; that an order passed without lawful authority or without jurisdiction was void ab initio; that the stolen items i.e, computer etc. Were never issued to the appellant which were related to the work of Steno and were handed over to him by the Judge ATC; and that certain items which were handed over to the appellant by the previous Reader were handed over to the new Reader at the time of handing over the charge.
3. The appeal was resisted by the Judge ATC, Hazara Division, Abbottabad (Respondent No,2) who filed written reply, wherein, it was contended that on the direction of the honourable Chief Justice, Peshawar High Court, Peshawar inquiry was conducted and the Inquiry Officer held the appellant responsible for the stolen articles, and after receipt of findings of the Inquiry Officer, the Presiding Officer ATC initiated departmental proceedings against the appellant, suspended him, issued him charge-sheet and statement of allegations under the E&D rules and entrusted the proceedings to Additional District & Sessions Judge-I Abbottabad who appointed Mr. Shah Waliullah Hamid, Civil Judge, Abbottabad as Inquiry Officer. According to the respondent, the said Civil Judge, conducted proceedings and re-examined the entire witnesses who were examined by Mr. Amjad Rahim Khan, Senior Civil Judge, Abbottabad in the first inquiry and exonerated the appellant from the charges by differing with the findings of the Senior Civil Judge, Abbottabad and submitted his findings to the Authorized Officer, namely, Madad Khan Additional District & Sessions Judge-I Abbottabad. The Additional District & Sessions Judge-I, Abbottabad, however, held the appellant responsible for the theft and recommended him for major penalty.
4. Arguments of the learned counsel for the appellant were heard on both the legal and factual aspects of the case in greater detail, and arguments of the learned A.A.-G. Were also heard, and record perused.
5. Apart from the legal validity of the departmental proceedings conducted against the appellant, which will be discussed later on, the appellant while posted as Reader in the ATC Abbottabad was charged, proceeded against and eventually terminated from service on the charge of theft of computer along with other accessories. He was saddled with the charge only because he was the last one to leave the Court premises on 10-6-2006. The appellant has been acquitted of the charge of theft by the Judicial Magistrate-I Abbottabad vide his order, dated 13-6-2009. The appellant was, however, held responsible for theft by the Senior Civil Judge Abbottabad, on the sole ground of his leaving the Court in the last in his report, dated 23-12-2006 after 'fact-finding inquiry' in pursuance of the direction of the Peshawar High Court contained in letter, dated 16-9-2006. The initial inquiry by the Senior Civil Judge, Abbottabad was admittedly 'fact-finding inquiry' because it was not held: under either, N.-W.F.P Government Servants (E&D) Rules, 1973 or N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000, and also not under .The orders of the Authority; but was held in pursuance of letter of the Registrar Peshawar High Court, Peshawar, dated 16-9-2006. Moreover, this inquiry was followed by proper departmental proceedings, in pursuance of the subsequent letter, dated 6-2-2007 of the Registrar Peshawar High Court, during which, appellant was served with charge-sheet. The initial 'fact-finding inquiry' also lost its force and effect, if any, after the proceedings before his order, dated 20-9-2007 were declared irregular and illegal by the Judge ATC, Abbottabad through the said order. Needless to say that findings of the Senior Civil Judge Abbottabad, dated 23-12-2006 are the only basis for action against the appellant.
6. Having said that, it would not be out of place to mention here that computer is used by Steno of the Court in the normal course and, therefore, it is he who retains custody of the equipment. The appellant, who was Readex of the Court, was not holding charge of the computer, therefore, he has not been charged with misappropriation of the same. Instead, the appellant has been charged with theft because he was the last one to leave the Court on the eventful day. Admittedly, the Court premises are never left unguarded, and in this case too, the court was being guarded by the police guard. In case of theft, their negligence, if not connivance, should not have been overlooked; but there seems nothing, on record to suggest that they have been taken to task for dereliction in duty.
Keeping in view size of the articles/items, their theft and taking away from the Court by some one should not have escaped notice of the police guard present at the relevant time; but the police officials have categorically stated that the appellant left the Court premises empty handed and that they did not notice the articles/items being taken away by him. Undoubtedly, there is no eye- witness account of the occurrence as no one has seen the appellant while removing the articles/items from the Court premises; and that is the reason that the appellant has been acquitted of the charge of theft under section 249-A Cr.P.C. By the Judicial Magistrate-I Abbottabad vide his order, dated 13-6-2009. In the absence of any other evidence, the only ground that the appellant was the last one to leave the premises would neither appear reasonable nor convincing to subject him to harsh penalty of termination from service, especially when the Authority also expressed his reservations about his performance and conduct; which would, indeed, smack of a predisposition.
7. The impugned order, dated 14-10-2008 is based on the recommendations of the Authorized Officer/Additional District & B Sessions Judge-I Abbottabad, who recommended imposition of major penalty on the appellant, not on the basis of findings of the Inquiry Officer, appointed by him for the purpose, who had held the accused not guilty for the allegation set out in the charge, but on the basis of the report of the Senior Civil Judge, Abbottabad, dated 23-12-2006 who had conducted initial 'fact-finding inquiry' on the direction of the High Court and not on the direction of the 'Authority' under the relevant law/rules. It may be noted that despite the fact the Inquiry Officer (Mr. Shah Waliullah Hamid) Civil Judge, Abbottabad had given reasons for not holding the appellant guilty for the allegations in the charge after inquiry, neither the Authorized Officer (Additional District & Sessions Judge-I Abbottabad) nor the Authority (Judge ATC Abbottabad) advanced any reasons for disagreeing with his conclusion and making findings in the 'fact-finding inquiry' basis for their recommendations and order. As stated above, the Judge ATC Abbottabad himself declared the whole exercise, including 'fact-finding inquiry', before his order, dated 20-9-2007, as irregular and illegal, and appointed Authorized Officer, who in turn appointed Inquiry Officer for proceedings under the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973; but then relied on the same report, earlier declared by him as irregular and illegal. The only regular inquiry conducted under the rules in pursuance of the order of the 'Authority' and then the Authorized Officer exonerated the appellant of the charges; and there is nothing either on the record or in the recommendations of the Authorized Officer and order of the 'Authority' providing basis for making a departure from the findings of the Inquiry Officer and placing reliance on findings in the 'fact- finding inquiry'.
8. The Judge ATC Abbottabad as pointed out above, declared the entire proceedings conducted earlier as irregular and illegal vide his detailed order, dated 20-9-2007; and directed proceedings against the appellant under the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 by appointing Mr. Madad Khan, Additional District & Sessions Judge-I, Abbottabad as Authorized Officer, who then appointed Mr. Shah Waliullah Hamid, Civil Judge, Abbottabad as Inquiry Officer.
The learned counsel for the appellant vehemently argued that apart from the fact that, the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 has been repealed with the promulgation of N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000; even the provisions of the N.- W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 have been violated in the case because the Judge ATC assumed the status of 'Authority', without he being designated as such by the Governor in accordance with rule-2(b) of the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973. The learned counsel stressed that there was no Notification to that effect, and the respondents were unable to controvert the contention of the learned counsel for the appellant by referring to any such Notification in rebuttal.
9. Further-more, the N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect as laid down in section-11 of the Ordinance, 2000, which is as follows:- "11. Ordinance to override other laws.-- The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the North-West Frontier Province. Civil Servants Act, 1973 (N.W.F.P Act No,XVIII of 1973), and the rules made thereunder and any other laws for time being in force." (Underling is ours).
Since N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 were framed under section 26 of the North-West Frontier Province Civil Servants Act, 1973, N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000 will have an overriding effect over the C N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 in accordance with section 11 of the. Ordinance, 2000.
Moreover, section 2(e)(iii) of the N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000 defines "person in government service" also any employee serving in any court or tribunal set up or established by Government, except a Judge of the High Court or a court subordinate to the High Court and any employee thereof." This provision, though, excludes a Judge of the High Court or a court subordinate to the High Court and any employee thereof but includes any employee serving in any court or tribunal setup or established by Government. The Anti Terrorism Courts are, undoubtedly, established by the Government, therefore, their employee would be amenable to the application of N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000. If one further examines the Ordinance, 2000, he will arrive at this irresistible conclusion that unlike the N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 there is, no concept of Authorized Officer in the Ordinance, 2000. Therefore, on these grounds too, the impugned order is not sustainable in law.
10. The impugned order would show that services of the appellant were 'terminated', but the penalty of termination is alien to both the N.-W.F.P Removal from Service (Special Powers)
Ordinance, 2000 and N.-W.F.P Government Servants (Efficiency & Discipline) Rules, 1973 as in both the laws/rules major penalties have been prescribed as dismissal, removal from service, and compulsory retirement, besides reduction to a lower post, grade or time scale, or to a lower stage in a time scale; but there is no penalty known as 'termination' in either of the two. It is not clear from the impugned order that under what provision of law the Judge ATC Abbottabad has resorted to the unknown penalty of `termination' from service. No doubt, there is provision of 'termination of service' in the Civil Servants Act, 1973, but section 11 of the Act provides for 'termination of service' during probation period, on expiry of period of employment or in case of appointment made on ad hoc basis. However, 'termination of service' as a penalty/punishment is nowhere provided for either in the Civil Servants Act, 1973 or in the disciplinary laws as referred to above.
11. As a sequel to the foregoing discussion, when there is nothing on record to connect the appellant with theft of the articles/items, and also when he has not been treated in accordance with law/rules, the appeal is accepted, and while setting aside the impugned order, dated 14-10- 2008, the appellant is reinstated in service with consequential/back-benefits. There shall, however, be no order as to costs.