MUHAMMAD YAR WALLANA, MEMBER --Succinctly stated, the appellant Muhammad Azam, Constable No, 67/C of District Police, Sheikhupura was proceeded against under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 by way of three show-cause notices bearing No, 2008/PA/SB/SKP, dated 29.11.2008, bearing No, 25/PA/SB/SKP. dated 10.1.2009 and bearing No, 223/PA/SB/SKP. dated 11.2.2009 on the charge of involvement in case F.I.R. No, 1277/08 u/Ss.
420/468/471, PPC, PS, Islampura, Lahore arising out of preparation of a forged and fabricated authority letter with forged signatures of Additional Inspector General of Police/Finance & Welfare and absence from duty since 24.11.2008 till 2.1.2009. In view of the stance taken by the appellant in his replies to show-cause notice, the competent authority deemed it appropriate to hold a regular inquiry and appointed DSP/HQ to conduct a regular inquiry. On receipt of inquiry report the competent authority passed order bearing No, 258-65/PA/SB-SKP, dated 9.3.2009 awarding the appellant major penalty of dismissal from service, against which his departmental appeal preferred before Deputy Inspector General of Police, Security & Admn. Special Branch, Punjab, Lahore was succeeded and the appellant was reinstated into service vide impugned order bearing No, 10829/APC, dated 10.6.2013, however, the appellant being aggrieved by the said order to the extent of back benefits preferred a revision petition before Additional Inspector General of Police, Special Branch, Punjab, Lahore which was turned down vide impugned order bearing No, 21091-94- ES-I, dated 4.10.2013. Hence, this appeal is filed on 4.11.2013 well within prescribed time limitation for the said purpose taking up the grounds maintained thereunder.
2. Learned counsel for the appellant submits that besides initiating departmental proceedings parallel proceedings were initiated on the same allegations by the Anti-Corruption Establishment by lodging an F.I.R. No, 1277/2008, where the appellant was acquitted from the charges honourably vide judgment dated 8.5.2013 by the Court of competent jurisdiction, whereas, on departmental side though a regular inquiry was conducted but the same was conducted in derogation of settled principles of law and natural justice as during inquiry proceedings the appellant was deprived of his right to cross-examine the prosecution witnesses. Learned counsel further submits that when the departmental appellate authority found the appellant innocent in the matter and reinstated him into service there remained no justification with the departmental appellate authority for not granting back benefits for the period the appellant remained out of service as during the said period he never remained gainfully employed anywhere.
3.On the other hand the learned District Attorney negated the contentions raised by learned counsel for the appellant and maintained that disciplinary proceedings and criminal proceedings are quite distinct to each other having altogether different characteristics and there is nothing ,always common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forum& in ' ordinary circumstances have their own domain of jurisdiction. The decision of one forum would have no bearing on the decision of other forum. Further submits that on departmental side a regular inquiry was conducted where the appellant was found guilty of the charges but despite that the departmental appellate authority shown leniency towards appellant and reinstated the appellant into service and in these circumstances he is not entitled for back benefits. The learned District Attorney also made reliance upon Syed Niaz Hussain Shah Bukhari's case (2003 SCM R 228) and Administrator Zila Council, Sahiwal's case (2011 SCM R 1082).
4.I have heard arguments of learned counsel for the appellant and learned District Attorney and have examined the record.
5.The appellant is in fact aggrieved of the order of departmental appellate authority/respondent No, 3 bearing No, 10829/APC, dated 10.6.2013 as while accepting departmental appeal the departmental appellate authority although reinstated him into service yet no effective order regarding payment of back benefits for the period he remained out of service was passed. He preferred revision petition against the said order, which was dismissed vide order bearing No, 21091-94/ES-I, dated 4.10.2013, whereafter he preferred this service appeal on 4.11.2013, which is filed well within time limitation prescribed for the said purpose.
6.Since the departmental appellate authority had deemed it appropriate and accepted the departmental appeal of the appellant and reinstated him into service, hence in this service appeal question of payment of back benefits for the period the appellant remained out of service is worth consideration. The record manifests that the disciplinary proceedings were initiated against the present appellant by issuance of three show-cause notices bearing No, 2008/PA/SB/SKP, dated 29.11.2008, bearing No, 25/PA/SB/SKP, dated 10.1.2009 and bearing No, 223/PA/SB/SKB, dated 11.2.2009 and an F.I.R. bearing No, 1277/2008, dated 24.11.2008 u/Ss. 420/468/471, PPC, P.S. Islampura, Lahore on the allegation of commission of offences of cheating, forgery and fabrication of authority letter. The departmental appellate order discloses that the appellant has been acquitted of the charges levelled in case F.I.R. No, 1277/2008 by the Court of competent jurisdiction i,e, Special Judge, Anti-Corruption, Lahore vide his judgment dated 8.5.2013. I am cognizant of this legal proposition that the departmental proceedings have to stand by their own strength and wherein a. regular inquiry the incriminating material is brought on record to prove the charges, even the acquittal of an accused of a case would not remain helpful for succeeding in a service appeal filed u/S. 4 of Punjab Service Tribunal Act, 1974. But here the circumstances are altogether different because the departmental authority had accepted the appeal and reinstated the appellant into service and when the authority had chosen to reinstate the appellant into service, the right of payment of back benefits or denial thereof has to be seen in the law and facts of omission and commission of the appellant and available material collected. in the inquiry proceedings. In present case, the respondents have not brought on record any inquiry proceedings to substantiate that the charges were proved on the basis of evidence recorded thereunder in accordance with law and the principles of natural justice applicable in determination of factual controversy in a regular departmental inquiry. Therefore, the record is suggestive of the fact that the disciplinary proceedings against the appellant were initiated merely on the basis of lodging of an F.I.R. against the appellant wherein he was acquitted honourably by a Court .of competent jurisdiction.
Therefore. in the wake of such facts and circumstances the departmental authority had committed error, which was repeated at the appellate and revisional stage as well that when the basis of disciplinary proceedings i,e, fabrication and forgery in preparation of authority letter of a senior police officer could not culminate in conviction of the appellant in criminal trial and when there was nothing on record to substantiate the allegation and charge in the departmental proceedings, the appellant could not be attributed any sort of negative attribution for inviting wrath of disciplinary proceedings due to his acts and omission. It is facilitative and persuasive to quote the relevant provisions of Civil Service Rules (Punjab) i,e, Rule 7.5. The extract whereof is reproduced hereunder:-- <i>"A Government servant committed to prison either for debts or on criminal charge should be considered as under suspension from the date of his arrest and should be allowed only those payments as are laid down in Rule 7.2 until the decision of his case by the Trial Court, unless however, on being released on bail during the ofthe authority concerned reinstates him keeping in view the nature of offence or the grounds for his commitment to prisons." </i> The orders of the respondents are also violation of the instructions 'conveyed to administrative authorities through Notification No, FS(FR)V1-17/93, dated 26.9;1993 issued by the Government of the Punjab, Finance Department. Relevant portion is reproduced here below:-- <i>"When a Government servant who has been dismissed or removed from service is reinstated, the revising or the appellate authority may grant to him pay for the period of his absence from duty."</i> The question of entitlement of civil servants for back benefits and pay and allowance had also repeatedly come under consideration of the Hon'ble apex Court and I feel enlightened from the view of Their Lordships of Honorable apex Court expressed in 1997 SCMR 1982, 2002 SCM R 1034, 2003 _SCMR 228, which are relied for this purpose.
7. I have consciously gone through the case-law referred by the learned District Attorney reported as Syed Niaz Hussain Shah Bukhari's case (2003 SCM R 228 and Administrative Zila Council, Sahiwal's case (2011 SCM R 1082). In the prefix judgment the facts relate to obtaining stay order by the said appellant and in furtherance of the same he failed to work at any place of posting which are quite distinguishable from the fact of the present case as in .present case the lodging of an F.I.R. against the appellant was the basis of ignition of disciplinary proceedings. In the later case- law rationale behind the judgment of the Honorable apex Court was that there was no specific assertion made in the plaint that the appellant had remained Unemployed between the date of his termination and his date of reinstatement and that the facts of the said case and the rationale behind the judgment of the Honorable apex Court are quite distinguishable on the basis of different facts of the present case as well as the material fact that the departmental appellate authority had considered his departmental appeal plausible and accepted the same and had reinstated the present appellant into service and the departmental' appellate order as well as revision order nowhere carry mention that the appellant had remained employed anywhere during the period he remained out of service.
8. Therefore, the appellant was entitled for all back benefits from the date of his dismissal till his reinstatement into service and resultant by accepting this appeal the appellant is held entitled to all such benefits from the date of his dismissal his reinstatement into service.