KHALID MAHMOOD RAMAY, MEMBER-II. --- Brief facts of the case are that the appellant was proceeded against departmentally under Punjab Police (E&D) Rules, 1975 on the charge of snatching cash of Rs. 40,000/- at gunpoint, while on duty, from one Hayat Ullah. An enquiry into the matter was got conducted and resultantly vide order dated 30.01.2015 passed by respondent No. 2, i.e. DIG of Police, Operations, Lahore, the appellant was awarded major penalty of "Dismissal from Service". Feeling aggrieved, the appellant, preferred departmental appeal before respondent No. 1, i.e. CCPO Lahore, who vide order dated 28.11.2015 rejected the same. Hence, this appeal.
2. Arguments of learned counsel for the appellant and the learned District Attorney have been heard. Contents of memorandum of appeal, record submitted by the department and parawise comments offered by the respondents have also been perused.
3. The learned counsel for the appellant submitted that the impugned orders are against the law and contrary to the facts of the case. He argued that major penalty of dismissal from service was awarded to the appellant without conducting any regular enquiry, rather on the basis of a probe or fact finding enquiry and hence the impugned orders are not sustainable in the eyes of law keeping in view the dictum laid down by August Court of Pakistan in the judgment reported as 1997 SCMR 1543, wherein it has been held that if the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular enquiry cannot be dispensed with. In the above regard, learned counsel for the appellant has also relied upon case-law reported as 2003 PLC (CS) 353 and 2009 SCMR 412.
4. Learned counsel for the appellant further submitted that the appellant has been condemned unheard as no opportunity of personal hearing was afforded to him before inflicting upon him the major penalty. He continued that F.I.R No. 101/2014 u/s. 392, PPC was also registered against the appellant on the same charge and since he has been acquitted from this case u/s. 249-A, Cr.P.C. vide judgment dated 24.05.2014 passed by Judicial Magistrate Section 30, Lahore, therefore no justification was left with the departmental authorities to take the appellant to task. In support of his stance, counsel for the appellant relied upon 2001 PLC (C.S) 667, 2012 SCMR 165 & 2002 SCMR
57. In the judgment reported as 2002 SCMR 57, it has been held that:--- "---Dismissal from service---Acquittal from criminal charge---Civil servant was acquitted by the Trial Court---Departmental Authority dismissed the civil servant from service only on the charge of being involved in criminal case---Service Tribunal maintained the decision of the departmental authority' and appeal was dismissed---Validity---Regular enquiry having not been conducted by the Departmental authority, petitioner could plead that having been exonerated by the Criminal Court, the departmental authority was not competent to discharge/remove him from service---Where the departmental authority failed to conduct any regular enquiry against the civil servant, it had, therefore, no basis to hold the civil servant guilty of misconduct---Judgment passed by the Service Tribunal was set aside and Supreme Court directed the authorities to reinstate the civil servant in service with back benefits for the period he had not been gainfully employed elsewhere---Appeal was allowed."
5. At the end, while concluding his arguments, counsel for the appellant submitted that the appellant is a poor person having no source of income except the job and if the appellant is not reinstated into service, not only he but his whole family shall suffer from starvation, hence he may be treated leniently by setting aside the impugned orders or by converting the major penalty of dismissal from service into a suitable lesser penalty. With these submissions, counsel for the appellant prayed for acceptance of the instant appeal.
6. The learned District Attorney argued that all the legal formalities were fulfilled while proceeding against the appellant. He held that conduct of the appellant remained highly objectionable and sufficient material was available on record against the appellant, hence there was no need of holding regular enquiry and the same was dispensed with in accordance with law. Moreover, an enquiry into the meter was got conducted through S.P. Iqbal Town Division, Lahore who held the appellant guilty of the charges. He further argued that the appellant was not acquitted honourably, rather he was acquitted u/s. 249-A, Cr.F ., on the basis of compromise and even otherwise acquittal in a criminal case does not bar the departmental action against delinquent official as both the proceedings are distinct and independent of each other. 1 Learned District Attorney concluded that for the foregoing reasons the instant appeal is baseless and not tenable, which may very graciously be dismissed.
7. Patient hearing has been given to both the sides. It is inclined to agree with the submissions made by learned counsel for the appellant that since the appellant was acquitted by the competent Court of jurisdiction vide judgment dated 24.05.2014, from the criminal case i.e. FIR No. 101/2014 u/s. 392, PPC registered against him on the same allegation which is the basis against him in the departmental proceedings. no justification was left with the department to proceed against himexcept by way of proving the allegation through a regular departmental enquiry wherein opportunity of coss-examination of witnesses should have been provided to the appellant, which has not been done. Law laid down by the honourable Supreme Court of Pakistan in the judgments reported as 2001 PLC (C.S) 667, 2002 SCMR 57 & 2012 SCMR 165, 2003 PLC (C.S) 353, 1997 SCMR 1543 and 2009 SCMR 412, which has been relied upon by the learned counsel for the appellant, supports his version. However, it can be viewed that in the light of conduct of complainant during investigation by not participating in the identification parade and particularly when the complainant has himself submitted affidavit in favour of the appellant during the course of criminal proceedings in the Court of learned Judicial Magistrate Section 30, Lahore, remand of the case at this belated stage will be a futile exercise and would amount to indulge the appellant in further rounds of prolonged litigation.
8. Even otherwise. the penalty awarded to the appellant is harsh and does not commensurate with the gravity of the misconduct attributed to him, which could not be proved even. 1 he philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or through reformation. The honourable Supreme Court of Pakistan or observes in its various judgments that in service matters, extreme penalty for minor acts would defeat the reformatory concept of punishment. Reliance is placed on 2006 SCMR 60. In this view of the circumstances, the impugned orders passed by the respondents do not hold .good with reference to natural justice. Therefore, the instant appeal is partially accepted and the impugned orders are modified by converting major penalty of "Dismissal from Service" into another major penalty or "Forfeiture of 01 year approved service", Resultantly, the appellant is reinstated into service from the date of his dismissal and the intervening period is treated as leave of the kind due. Disposed of.