RAO ABDUL JABBAR KHAN, MEMBER-II , (District & Sessions Judge) --- Brief facts of the case are, that the appellant, while serving as a SST (G) at the Government High School Noshera Sharqi; District Rajanpur , was booked in a case F.I.R. No. 316/99, dated 10.7.1999 recorded under Section 302, P.P.C. with the Police Station, Rajanpur , and was arrested by the Police, was also sent to the jail. The appellant absented himself from duty due to the above-mentioned circumstances which were beyond his control and but also informed the headmaster , verbally , as well as written his request was considered but was not completely rather ;after sometime, he was marked as a wilful absentee, he was departmentally proceeded against, under the Punjab Employees Efficiency , Discipline and Accountability Act, 2006, on charge of wilful absence from duty w.e.f. 16.4.2015 to 2.5.2015, as reported by the then Headmaster , vide letter No. 083 dated 2.5.2015. The District Education Officer (SE) Rajanpur was also conveyed in this respect in his of fice, vide Endst. No. 841, dated 5.5.2015.
2. On 28.4.2015 during a visit, of the Monitoring Evaluation Assistant, the appellant was recorded absent, consequently , a Show Cause- cum-Personal Hearing Notice was served upon him under Section 7(d) of ,the Punjab Employees Efficiency , Discipline and Accountability Act, 2006 vide office Endst. No. 4011/Admn, dated 16.5.2015, and he was directed to appear before the E.D.O., Education, Rajanpur on 20.5.2015 for hearing.
3. The appellant was convicted by the then learned Sessions Judge, Rajanpur for imprisonment under Section 302, PPC for life on 02.12.2002 in the above-mentioned case. It is pertinent to menti on here that during the trial the appellant's services were suspended but the suspension allowances had not been stopped. The appellant being aggrieved of the judgment, dated 02.12.2002, passed by the learned Sessions Judge, Rajanpur , filed an Appeal No. 1032/2002, before the honourable Lahore High Court, Lahore, and was then released on bail after arrest in the month of the April, 2005 and the departm ent reinstated his services on 8.4.2005, so, he had been serving from the April, 2005 to the April 2015, competently and had also been drawing his salaries.
4. On 15.4.2015, the honourable Lahore High Court, Lahore, was pleased to dismiss the appellant's appeal No. 1032/2002 and upheld the decision of the learned Sessions Judge, Rajanpur , for imprisonment for life. Resultantly , the appellant was arrested and sent to the New Central Jail, Multan to serve out the conviction.
5. On 2.6.2015, the appellant assailed the judgment of the honourable Lahore High Court, Lahore dated 15.4.2015 before the honourable Supreme Court of Pakistan, the appellant was acquitted from the charge and the appeal was accepted on 16.9.2016 and he was released from the jail.
6. The E.D.O., Education, Rajanpur had dismissed the appellant's services under the PEEDA Act, 2006, while awarding him a penalty of dismissal from service, vide order , No. 4862-68/Admn., dated 19.06.2015, after adopting the ex parte and shorter procedure, without providing him an opportunity of hearing. and without waiting for the decision of the honourable Supreme Court of Pakistan. The appellant filed a department appeal No. 1332 on 10.07.2015 before the District Coordination Officer, Rajanpur , through the Supe rintendent, Central Jail Multan, which was also dismissed vide order No. 487, dated 19.01.2016.
7. It is pertinent to mention here that the appellant was acquitted by the honoura ble Supreme Court of Pakistan, vide Criminal Miscellaneous, No. 529-L of 2016 on 16.09.2016. Then he sought the amendment of the Appeal in light of the judgment of the honourable Supreme Court of Pakistan, vide C.M. No. 1030 dated 22.09.2017, which was allowed and the judgment of honourable apex Court was also placed on the Record.
8. The appellant, in the meanwhile, attained the age of superannuation on 8.9.2017 during the pendency of this Service Appeal, but the department did not pass the notification of his retirement and the appellant was considered as a dismissed employee/Civil Servant in light of the penalty of dismissal from service as mentioned in the impugned order dated 19.01.2016 despite having 33 years service at his credit. Hence, this appeal before this Tribunal was instituted.
9. The learned counsel for the appellant argues that the respondent has committed an error and the appellant deserved to be reinstated with all back benefits and privileges. Moreover , the criminal proceedings and civil are quite distinct in nature and cannot affect the fate of each other , so the impugned orders are not sustainable in the eye of law, the respondents are liable to be directed to issue an order of his order of his reinstatement. The learned counsel for the appellant further placed reliance on PLD 2003 SC 187 , which is as follows:--- "Acquittal is acquittal whether it is on the basis of a declaration by a Court on conclusion of trial that someone is not guilty of charge or at any stage under S. 249-A or 265-K, Cr.P.C. or on the basis of compromise u/s. 345, Cr.P.C., main criteria of acquittal is the satisfaction of the Court itself, but such satisfaction should always be objective and not subjective. Once an accused has earned acquittal in his favour , he enjoys double presumption of innocence."
10. Conversely , the learned District Attor ney submits, that, the appellant was booked in a murder case cited ibid and was convicted by the learned Sessions Judge and his conviction was maintained by the honourable Lahore High Court, Lahore but he was acquitted on the basis of compromise with the complainant and his legal heirs. This acquittal cannot be treated as honourable. He placed his reliance on: "Government of the West Pakistan through the Secretary PWD (Irrigation Branch) v. Mian Muhammad Hayat PLD 1976 SC 202 in which it was held that: it is for the revising authority or appellate authority to form its opinion on the material placed before it whether such person has been honourable acquitted or not. It is left to objective discretion for the authority . The Tribunal, therefore. dismissed the appeal. Parties are left to bear their own costs. File he consigned to record room."
11. I have heard the arguments and perused the Record.
12. It is a settled law that the judgments and the decisions of the honourable Supreme Court of Pakistan, have binding ef fects on all the Judicial and Executive Authorities. Reliance is placed on 2013 PLD 472 .
13. The appellant was a Secondary School Teacher in Basic Pay Scale- I 8 and w as booked in a Case FIR. No. 216/99, he was awarded imprisonment for life by the learned Sessions Judge under Section 302(b), PPC, which was confirmed by the honourable Lahore High Court, Lahore, on 15.04.2015.
14. Ultimately , the matter went before the honourable Supreme Court of Pakistan in an appeal which was allowed and the appellant was acquitted on 16.09.2016, vide Criminal Petitions No. 625- and 563-L of 2015 on the basis of compromise with the legal heirs of the deceased.
15. The contentions of both the sides were considered in light of the cited settled law by the honourable higher and superior Courts on the subject, which is reproduced here as under for the purpose of the ready reference:--- PLD 1994 Lahore 338
(b) Criminal Procedure Code (V of 1898)-- S. 265-K---Pakistan Railways Establishment Code, R. 2044-- Fundamental Rules, R. 54---Acquittal of accused under S. 265-K, Criminal Procedure Code , 1898, for lack of evidence---Although the term 'honourable acquittal' has been used in the Fundamental Rules, Railway Rules and Civil Service Rules (Punjab) yet this term does not figure in the Criminal Procedure Code anywhere, therefore, an acquittal is to be deemed as 'honourable acquittal'. These provisions , came, up for consideration in the case of Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991 SCMR 209 where civil servant was convicted by the Special Judge but this Court set aside the conviction. The civil servant claimed back benefits but the same were disallowed on the ground that he has not been acquitted honourably . The appeal before the Punjab Service, Tribunal also failed. The honourable Supreme Court held that as no sentence of fine or imprisonment has imposed, therefore, the appellant is entitled to back benefits and relying upon earlier judgment in case of Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore' 1985 SCAB? 1062 and Rule 703 of the CSR (Punjab), Volume I, Part I, it was held that "The dismissal of the appellant was based on, the 'conviction recorded against him. Since the conviction has been set aside the order of dismissal cannot be maintained and has to be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back benefits with effect from 22-1-1980 ". 1998 SCMR 1993 "Acquittal of a civil servant from the crimin al case was to be considered as he has committed no offence because, the competent Criminal Court had freed and cleared him from an accusation or charge connecting the crime. Such civil servant, therefore, was entitled to grant of arrears of his pay and allowances in respect of the period he remained under suspension on the basis of murder case against him."
1983 SCMR 160 and IGP Notification No. 17276-17316/VL dated 23.12.1996 "It has been very well-settled that the departmental authorities should wait for the verdict of the Court in the criminal case, before initiating departmental proceeding against a civil servant charged."
1998 PLC (C.S.) 1430 Fundamental Rules No. 54-Civil Service "Civil Servant was involved in a case under S. 302/34, P.P.C. for murder ---No evidence could be brought against the accused civil servant on charge of murder , thus, proving that allegations levelled against him were baseless--- Acquittal of civil servant from the criminal case---Accused civil servant in case of acquittal was to be considered to have committed" no offence because, the competent Criminal Court had freed/cleared him from an accusation or charge of crime---Such civil 'servant, therefore, was entitled to grant of arrears of his pay and allowances."
2012 PLC (CS) 913 "All acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character . It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals'? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals. That term "acquittal" has not been defined anywhere in the Criminal Procedure Code or under some other law. In such a situation, ordinary dictionary meaning of "acquittal" shall be pressed into service. Mian Muhammad Shafi v. Secretary to Government of the Punjab, Population W elfare Programme, Lahore and another 1994 PLC (C. S) 693 ref"
2001 PLC (C.S) 667 "Acquittal of Civil Servant from the criminal case. Civil Servant in case of acquitta l was to be considered to have committed no offence because the comp etent Criminal Court had freed/cleared him from an accusation or charge of crime. Such Civil Servant, therefore, was entitled to grant of arrears of his pay all allowances in respect of the period he remained under suspension on the basis of murder case against him.".
2001 SCMR 269
(d) Fundamental Rules Acquittal of Civil Servant from criminal case---Civil Servant was reinstated in service after acquittal from a criminal case---Payment of subsistence allowance only to the civil servant-- Validity--W here criminal charges were not established before competent Court of law and a civil servant was acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified-- Civil Servant was acquitted by the competent Court of Law which would mean that civil servant had not been suspended and would be entitled to all pay and allowanc es admissible under the rules, minus the amount which the civil servant had already drawn, (p. 274)D PLD 2010 Supreme Court 695
(e) Penal Code (XLV of 1860)------S. 310(5)---Criminal Procedure Code (V of 1898), S. 345---Compounding of offence of murder ---Admission of guilt---Scope--It is not always that a comprom ise is entered into by accused person on the basis of admission of guilt by him---In many cases of false implic ation or spreading net wide by complainant party accused persons compound the offence only to get, rid of the case and to save themselves from the hassle of trouble of getting themselves acquitted from Courts of law after arduous, expensive and long legal guilt on the part of accused person or that an acquittal earned through such compounding of an offence may not have ramification regarding all spheres of activity of acquitted person's life includ ing his service or employment, beyond criminal case against him. (pp. 703, 704)E&G
(f) Criminal Procedure Code (V of 1898)---S. 403---Constitution of Pakistan (1973 ), Art. 13(d)---Acquittal--Maxim autrefois acquit---Principle of Afw---Scope---Ultimate acquittal in a criminal case exonerates accused person completely for all future purposes vis-a-vis the criminal charge against him---Concept of autrefois acquit embodied in S. 403, Cr.P.C., protection guaranteed by Art. 13(a) of the Constitution, Afw (Waiver) or Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime (p. 703)
2013 TD (Service) 353
(c) Acquittal of Civil Servant---All acquittal of civil servants in criminal cases filed against them are certainly honourable acquittals. There can be no acquittal which may be said to be dishonourable as the law has not drawn any distinction between two types of acquittals. (P . 356, 357)
16. It is a case, in which the appellant was dismissed from service on 19.06.2015 by the Executive District Officer, Education, Rajanpur being a Competent Authority , after the decision of the honourable Lahore High Court, Lahore, ex parte and without waiting for the decision of the honourable Supreme Court of Pakistan and awarded him a major penalty , without any regular inquiry , which was necessary before passing the impugned order . The appellant has not been heard and the order was in violation of maxim "Audi Alteram Partem ", in which it has been held that the departmental regular inquiry is necessary . So, the impugned order dated, 19.06.2015 was result of incorrect exposition of law on the subject, which was not sustainable being illegal and contrary to the law as settled in 1984 PLC (CS) 61, 1993 SCMR 1543, 1997 SCMR 1543 , 2007 SCMR 192, 2009 SCMR 339. Resultantly , the impugned orders suf fer from legal error , irregularity , illegality and hit by the misuse of power .
17. In light of the above settled law that every acquittal is to be deemed honourable acquittal:-- "whether , on the basis of benefit of doubt on payment of diyat or compromise with legal heirs of the deceased The principle of 'Afw' and maxim 'Autrefois Acquit' fortifies the case of the appellant".
It has also been settled the case-law reported as 2005 SCMR 664 (Chief Secretary , Government of Sindh and others v. Alhaaj Professor Sibte Hassan Zaidi and others), in which the respondent was removed from service and he filed the Service Appeal before the Sindh Service Tribunal, the order of the removal from service was struck down by the Sindh Service Tribunal as not sustainable and illegal because the inquiry officer submitted his report declaring him guilty without examining the accused official or any other witness and directed the Education Department to issue notification of retirement of the respondent on attaining the age of superannuation. In this view of the matter, while placing the reliance on the above-cited judgments, the department is directed to issue the notification of retirement of the appellant with all back benefits, because civil servant who was reinstated by the government or the department, grant of back benefits is rule and denial of such benefits is an exception, on the proof that such civil servant had been remained gainfully employed during the intervening period between his dismissal/removal and reinstatement.
18. The law has been settled that there is no acquittal other than the honourable acquittal as in the case of appellant, so the contentions of the learned District Attorney that the appellant was acquitted on the basis of compromise are not tenable in light of the above settled law of the honourable apex Court of Pakistan. As far as, the objection of the learned District Attorney that the appellant has attained the age of superannuation and is not entitled for his benefits, is concerned, Civil Service Rules (Punjab)
As per rule 73 read with F.R. 54 and ESTA Code, 2067 Edition, Vol. II SI. No 155, grant of back benefits to a civil servant who was reinstated by a Court/T ribunal or the department is the rule and denial of such benefits is an exception on the proof that such civil servant had been remained gainfully employed during intervening period between his dismissal/removal and reinstatement. However , entitlement of back benefits of a civil servant has to be determined or the basis of facts of each case independently . There could be cases at times when no difficulty would be felt by the Court or Tribunal to grant back benefits when there are admitt ed facts between the parties but when there is a dispute in respect of the facts then, of course, the matter has to be referred to the department."
2013 TD (Service) 353.
It is settled law that when initial, order is contrary to law, the whole of the construction on the basis of the said void order would be illegal and liable to be struck down (see 2009 SCAM 339).
19. What has been discussed above in detail, the impugned order No, 4862-68/Admn, dated 19.06.2015 and order No, 487, dated 19.01.2016 are hereby set aside, being void and illegal as well as not sustainable in the eye of law.
Resultantly; the respondents are directed to issue a formal notification of retirement of the appellant as per rules and law. The appeal is accepted in the above terms. The relevant staff of this Tribunal in view of rule 21 of the PST (Procedure) Rules, 1975 is directed to furnish/send the copy of this judgment to the competent authority within 15 days from the date of receipt of this order in the concerned branch. The file be consigned to the Record Room.