Justice (R) Abdul Ghani Shaikh, Chairman.--The appellant has approached this Tribunal through the instant appeal against the appellate rejection order dated 13.01.2007 whereby penalty of dismissal imposed upon the appellant vide order dated 30.08.2006, passed under the Removal from Service (Special Powers) Ordinance, 2000, has been modified to that of "reduction to minimum of his pay scale for 2 years without future effect".
2. The facts of the case, as disclosed in the memo. of appeal are that earlier the appellant was dismissed from service on 28.03.2003 on the charges that he had used fake PT-24(AL) receipt and had caused loss to the government exchequer. The said order of dismissal was challenged by the appellant before this Tribunal through Appeal No,244(K)CS/03, and this Tribunal vide judgment dated 17.12.2005, ordered reinstatement of appellant and remanded the matter to the respondent for holding denovo proceedings to be initiated and completed within a period of four months. As a result thereof, appellant was reinstated in service vide order dated 03.1.2006 and an inquiry was thereafter ordered. The appellant was then served with statement of allegations dated 18.01.2006.
The inquiry committee conveyed the letter to appellant 24.01.2006 for the same set of charges and directed him to submit reply. The appellant submitted his reply to the show-cause notice and rebutted the charges, leveled against him. It is stated in the memo. of appeal that an inquiry was, thereafter, conducted, which submitted its report, vide letter dated 26.04.2006, thereby proving the appellant not guilty. After receipt of such report, a show-cause notice dated 11.8.2006 was issued to the appellant, dis-agreeing with the report of the inquiry committee. The appellant denied the charges levelled in the said show-cause notice vide his reply dated 22.08.2006. The appellant was then called for personal hearing by the D.S. Postal Services Larkana. Thereafter, vide order dated 30.08.2006, appellant was again dismissed from service. He preferred departmental appeal and the departmental appellate authority, vide order dated 13.01.2007 converted the said penalty of dismissal into reduction of minimum to his pay scale for two years without future effect. In the said order, it has been stated in the memo. of appeal, the appellant was also debarred from holding independent charge of Postmastership for two years and that the authority had also decided the period from 04.09.2006 to 13.01.2007 as leave of kind due; hence, this appeal.
3. It has been stated in the comments that the appellant was caught red handed by the Vigilance Team by using fake PT-24 (AL) receipts and he himself confessed his guilt before the Vigilance Team. That the appellant was provided full opportunity to defend himself but he even did not submit written defence statement after issuance of four reminders, therefore, it was clear that he had nothing to defend himself, therefore, exparte decision was made on 28.03.2003. It has been stated in the comments that in pursuance of judgment, appellant was reinstated in service and denovo proceedings were initiated against him as per existing rules. The inquiry committee submitted its report late deliberately and did not try to prove the allegations. It is stated that the appellant did not refute the allegations levelled against him in the statement of allegations, he only denied the allegations in the reply to show-cause notice and mere denial of the allegations does not make him free from the allegations. It has further been stated in the comments that the inquiry committee did not try to prove the allegations levelled against the appellant and wanted to give undue advantage to the appellant and submitted his report that the above allegations as 'NOT PROVED'", whereas, the appellant was caught red handed by Vigilance Team by using fake PT-24
(AL) receipts, under his down handwriting, he himself also confessed his guilt before the Team. The inquiry committee willfully prepared report in favour of appellant by ignoring documentary evidences which provided to the committee through departmental representative. The punishment of dismissal from service, awarded to the appellant as per nature of offence committed by him. It has been mentioned that appellate authority converted the punishment of dismissal from service into reduction to minimum of his pay scale for one year without future effect which shows that appellate authority also found the appellant guilty of the allegations but took lenient view.
4. We have heard the learned counsel for the parties and with their assistance carefully perused the record. Before proceeding with the merits of the case, we like to point out that a lot has been stated by the respondents in the comments that the appellant had confessed his guilt before the Vigilance Team, but surprisingly enough, the said confession and/or confessional statement has not been placed on record either alongwith the comments or during the course of arguments, in order to enable this Tribunal to scrutinize whether the said confession of the appellant was voluntary or it was under duress or coercion. On this point, even the inquiry committee in its findings, appointed by the respondents itself to scrutinize the allegations levelled against the appellant, had observed that, "It also pointed out that for discussion whether the alleged official has confessed his guilt before vigilance Team on 09.01.2003. In fact the confession is only an element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence, while under "Islamic Jurisprudence, in order to make a confession reliable, it "should be voluntarily made and not on account of coercion, duress or violence Thus in absence of any documentary evidence coming from, the respondents, alleging that the appellant had confessed his guilt, having not produced on record, it cannot be said that the appellant had confessed his guilt. Further, the report of the Vigilance/Army Team has no significance. Reliance is placed on PLD 2002 SC 66. The inquiry committee in its report/finding' did not find the appellant guilty of the charges, levelled against him and submitted its report, but the Authority, though was competent enough to disagree with the said findings, but for that it has to record sound and cogent reasons for such dis-agreement. No reasons for such disagreement appear to have been recorded and thus the penalty, so imposed upon the appellant through the appellate rejection order, in our view, cannot be maintained. We rely on PLD 2002 SC 630, 2001 SCMR 526 and 2006 SCJ
949. The report of the inquiry committee covers all aspects of the matter; hence, was required to have been considered by the authority, which he failed to take into account and passed adverse order of dismissal of the appellant from against the appellant without any justification and appellate authority modified the penalty in defiance of the documentary evidence/record as also findings of the inquiry committee, therefore, both the. orders are not sustainable in law. We rely on 2002 TD (Service) 358, 2006 TD (Service) 101 and 2006 PLC (CS) 591. The' findings of the inquiry committee are sound and based on evidence, which had discussed all the aspects of the case and observed that, "Hence strong evidence of the case was spoiled and prosecution has nothing to produce before inquiry committee for discussion and cross-examination of the alleged official for which he has insisted from the very beginning. Needless to say that in every disciplinary case, the prosecution is always burdened to prove its case beyond any shadow of doubt". The charges, as stated above, were not proved during the inquiry as per report of the inquiry committee, therefore, the order dated 30.08.2006 as well as appellate rejection order are inconsistent with the inquiry report. The appellate authority, while rejection the departmental appeal of the appellant and deciding the period, was required to have kept in view FR-54, which reads as under:-- "F.R.54. When the suspension of a Government servant is held to have been unjustifiable, or not wholly justifiable; or when the. Government servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence of duty--
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(b) if otherwise, such proportion of such pay and allowance as the revising or appellate authority may prescribe.
In case falling under clause (a), it will not be treated as a period spent on duty.
In case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs."
That in the instant matter, two period were involved (1) 01.04.2003 to 5.1.2006 and (2) 4.9.2006 to 26.1.2007, the appellate authority decided the second period unlawfully, but did not decide the earlier one, which was in continuity of the same cause of action, as such, the orders, original as well as appellate both are not sustainable in law, as the period, under FR-54 was required to be treated as spend on duty.
5. In view of the foregoing discussion, the impugned appellate rejection order dated 13.01.2007 as well as the original order dated 30.08.2006 are set-aside. The intervening period w,e,f, 01.04.2003 to 05.01.2006 and 04.09.2006 to 26.01.2007 be treated as spent on duty, as he did not remain gainfully employed anywhere during the said period, as stated in the memo. of appeal, supported by an affidavit, which is not controverted by the respondents through any counter-affidavit. No order as to costs.
6. Parties be informed accordingly. 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.