' KHALID MAHMOOD RAMAY, (MEMBER-V).--- Brief facts for filing the instant appeal as narrated are that the appellant was a PTC teacher in 1983 in district Bhakkar and was gradually promoted to the level of SST/' Headmaster in the year 2004. The appellant aung write three real brothers was implicated in case FIR No,105/2004 under sections 302/324/34, P.P.C. Resultantly the appellant was suspended w,e,f, 19.04.2004 vide order No,Admn-I/28-05/12348-53 dated 22.06.2006. On 27.01.2005 he was sentenced to imprisonment for life and to pay compensation of Rs,50,000/- to the legal heirs of the deceased by Additional Sessions Judge, Bhakkar. He was issued a show cause notice dated 04.05.2006 by the competent authority and being confined in jail he was not in a position to defend the charge of misconduct against him. The appellant filed an Appeal No,248/2005 before the Hon'ble Lahore High Court but the authority without waiting for the outcome of the said appeal and without affording the appellant any 'opportunity of personal hearing, vide order No,Admin- 1/28-05/12348-53 dated 22.06.2006 imposed major penalty of removal from government service upon him w,e,f, 27.01.2005. The appellant filed departmental appeal against the impugned order of removal from service before respondent No,2/D.C.O Bhakkar. Meanwhile his appeal before Hon'ble Lahore High Court against his conviction order in the above mentioned criminal case was partially accepted by modifying Section 302(c), P.P.C. And reducing the sentence from life imprisonment to imprisonment for 10 years which the appellant had already undergone and consequently he was released from jail. He yet preferred an appeal before the Hon'ble Supreme Court of Pakistan vide Cr.P. No,877/2011 but meanwhile the respondent No,2 vide Order No,1208/DCO/Asstt (Coord) dated 21.10.2011 rejected the departmental appeal hence the instant appeal.
2. Record as produced by the department was perused and arguments from both the sides heard.
3. Learned counsel for the appellant argued that the charge of misconduct is not proved on the appellant since the appellant although implicated and sentenced by the Court was not responsible for the act allegedly have been committed by him rather, as it has been held in the judgment passed by the learned Additional and Sessions Judge, that there was no motive behind this crime and it was an outcome of sudden provocation. Therefore, the allegation of moral turpitude (misconduct) does not hold good in case of the appellant. He further argued that the appellant was not present on the spot and was falsely implicated being real brother of co-accused persons. He stated that the deceased was a real cousin of the accused person and as a matter of rural culture of "sharika" the appellant was involved in the criminal case. He said that the impugned order is liable to be set aside being unlawful and against the facts because the appellant was removed from service on 22.06.2006 whereas he was initially suspended on 22.06.2004. During the suspension period till January 2005 he was paid salary but beyond February 2005 to 22.06.2006, the date of his removal from service, he was not paid the salaries therefore, the appellant is legally entitled for his pending salaries till the date of his removal from service in view of Section 4 of Removal from Service Ordinance, 2000. He relied upon PLD 2011 TC (sic) (S) in this regard.
4. He continued that false implication of appellant in a criminal case and pendency of his appeal before Hon'ble Supreme Court does not constitute any ground towards charge of misconduct as has been leveled against him. He pointed out that initially the appellant was suspended vide order dated 26.06.2004 whereas no suspension could have been made with retrospective effect. Since the ,appellant was not charged for allegations of moral turpitude or financial irregularities hence it was binding upon the authority to issue a show cause notice under section 3(2) of Punjab Removal from Service Ordinance, 2000. He argued that misconception of law and facts on part of the authority could not be made basis to deprive the appellant of his legitimate rights particularly the financial contributions he has made for quite long time.
5. He argued that the impugned penalty of removal from service is too harsh and excessive in view of the past service record of the appellant and in view of the findings of the learned Trial ,Court wherein the occurrence has been held as a sudden provocation which do not constitute any misconduct. The counsel further relied upon 2012 SCM R 165 wherein it has been held by the Apex Court that an offence lawfully compromised whereby civil servant was acquitted cannot be taken as disqualification coming in the way of his reinstatement in service. He maintained that vide the judgment passed by the learned Sessions Judge Bhakkar on 27.02.2014 the accused has been lawfully acquitted on the basis of a compromise effected between the accused and legal hairs of the deceased and the learned Court has acquitted the accused/appellant in order to "promote better sense between the parties".
6. Learned District Attorney on the other hand argued that the accused has rightly been involved in the criminal case as is evident by the sentence of 10 years he has undergone in the jail. He further argued . That acquittal of the accused from the criminal case is dependent on a compromise with the legal hairs of the deceased as allowed by the competent Court of jurisdiction, which is not an honourable acquittal and misconduct on part of the appellant is proved beyond any shadow of doubt. He further argued that the reinstatement of the accused in the service would be like promoting the civil servants to commit any kind of immoral activities and then knock the doors of Punjab Service Tribunal. To get them reinstated into service without any fear or hesitation.
7. He further relied on 2011 SCM R 534 wherein it has been held that inquiry would not be necessitated in a case where all facts were admitted and available on record and this was rightly the case of the present appellant because everything is crystal clear on the record regarding his involvement in the criminal case, misconduct and the imprisonment which he had undergone. He further pointed out that through the same judgment it has been further held that acquittal in case would not be an embargo against disciplinary proceedings.
8. I have given due consideration to record and the arguments forwarded by both, counsel for the appellant and the District Attorney.
9. During the course of arguments learned counsel for the appellant has submitted that if the penalty imposed by the department is lower down to the extent of compulsory. Retirement instead of removal, the same shall fulfill requirement of the justice and the appellant will remain satisfied. It is established on record that the appellant was involved in a murder case in which he was sentenced for life imprisonment which was later converted into imprisonment for ten years by the Hon'ble Lahore High Court and held as undergone by the August Supreme Court of Pakistan.
10. It is also observed by perusal of the record that the present appellant and the deceased were real cousins to each other and that the occurrence was an outcome of sudden provocation and it was not a planned or organized murder with any kind of calculated motives. This fact has been conceded by the Hon'ble Lahore High Court and thereupon the punishment was reduced. If this fact is analized in view of our sociocultural setup especially that of interior and Southern Punjab it is not difficult to deduce that "Sharika" plays a very important role in the rural society. This has also happened in this case where as a result of sudden provocation one of the family members was murdered at the hands of the present appellant, yet another family member.
11. It has been admitted by the department that he was recruited as PST and by virtue of his persistent performance he was elevated to the level of a Headmaster after rendering service .Worth decades old. It is also not out of question to mention that he has been contributing throughout towards different heads of the government exchequer including his pension, G.P. Fund, group insurance etc., and to deprive him of his financial rights particularly earned by his own contribution would not be justified in the eyes of law. Promoting better sense between the parties as has been held by the learned District and Sessions Judge has to be considered along with the fact that the appellant is an educated and qualified person who has adopted the same by compromising with his family members. He has undergone an imprisonment of 10 years and has passed the paramount period of his life behind the bars hence he deserves leniency and encouragement. In view of above discussion, the instant appeal is partially accepted. The impugned orders dated 22.06.2006 and 15.10.2011 are set aside and the penalty of removal from service is hereby converted into compulsory retirement from service from the date he was removed from service and is declared entitled to all benefits and pensionary rights admissible under law.