The appellant Muhib Ali Mangi who is present in person requested in writing that since his counsel had not come, his case be heard in his absence. Accordingly, we heard the appellant and the learned A.A.-G. We also perused the relevant documents involved in the appeal, particularly the report of Mr. Nazir Ahmad Shaikh, S.D.P.O. Rato Dero, Inquiry Officer.
2. All that the appellant urged was that the penalty of dismissal awarded to him be reduced and he may be ordered to be re-instated in service. It appeared to us that he did not seriously contest the findings of the Enquiry Officer holding him guilty of the charge of misconduct. Even otherwise, we see no reason to interfere with the said findings. The appellant was admittedly armed with rifle at the time of incident. If he had shown the requisite vigilance, the prisoner Fiaz Muhammad would not have dared to escape in the manner, he had done it. At the time of opening of the prison gate, appellant was expected to stretch his rifle, pointing it towards the gate and as soon as the above prisoner made an attempt to escape, he could have foiled it, first by sounding a quick warning of "shooting him" and then by actually shooting at him. No such indication is however, available on record. His mare acquittal in the criminal case in respect of the same occurrence would not help him. Such acquittal cannot be construed to have washed of the findings of the Enquiry Officer. If the departmental action was grounded on the case filed in the criminal Court, then of course it would follow the result of the Court case and on his acquittal in the criminal case, the accused would automatically be discharged from the liability incurred by him in the departmental enquiry. That is however riot the case here. The disciplinary action in the instant case was initiated against the appellant independently of the criminal case, Consequently, his acquittal in that case would not automatically relieve him of the charge he is found guilty in the departmental enquiry.
3. Apart from above, the departmental enquiry and the criminal case started against a civil servants in respect of same matter either simultaneously or one after the other would note necessarily lead to the same result. This is because not only the nature of the charges brought out in the two proceedings are different but also the standard of evidence required to prove these charges is not same. Obviously stronger evidence is needed to establish the case in the Court of law because if the case is proved against the accused civil servant, he would be liable to be sent to jail. But in the departmental proceedings he would at the most lose his job. Therefore in deciding the above two proceedings totally different considerations are kept in view by the punishment authorities. For the purpose of convicting the accused civil servant, the case may not be proved in the Court, still the departmental authorities may find him guilty for awarding any of the prescribed penalties.
4. In this connection, we may refer to the case of Deputy Inspector---General of Police, Lahore and others v. Anis-ur-Rehman's Khan PLD 1985 SC 134, in which both criminal case and departmental enquiry were instituted against the accused police officials. Pending the decision of the criminal case, the accused were found guilty in departmental enquiry and were awarded penalty of dismissal. The accused approached the Service Tribunal who allowed their appeal mainly on the ground that the result of the criminal case should have been awaited before awarding the penalty of dismissal in the departmental proceedings. The Supreme Court was pleased to observe as under:- "The Tribunal, it appears, with respect, was clearly in error in assuming that the two charges were co-extensive and inter--connected that the judicial trial was proper alternative and once having been resorted to, the departmental inquiry should not have been held and the trial should have served as a substitute for departmental inquiry.
It was further held by Honourable Supreme Court:- "In the case before the Tribunal the judgment in the criminal case could be relevant only for reascertaining whether it was a judgment of conviction or acquittal and whether it was an honourable acquittal. The other opinions or findings, apart from these two, recorded or expressed in the judgment could not be utilised for unsetting the other proceedings ...................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The scope ,and. The law applicable to the criminal trial was different from that applicable to departmental inquiry. The charges in the two were not identical nor substantially the same. The competent authority was not, therefore, duty bound under any provision or principle of law to await and follow the judicial verdict in the case."
For above reasons, we maintain the findings of the appellant being guilty of misconduct.
5. However, we are inclined to the view that penalty of dismissal awarded to him is, too, heavy and is not at all commensurate with the gravity of the charge proved against, him. On seeing the prisoner the appellant had raised hue and cry which attracted other police personnel also. The escaping prisoner was ultimately over powered and apprehended and the appellant was amongst those who seized the prisoner. Moreover the appellant has suffered a lot as he faced two proceedings one in Court up to the appeal stage and another departmental inquiry. In this way, he not only suffered a financial loss but was also subjected to mental agony particularly when he was thrown out of job with blemish of dismissal and hence had no prospect of getting any other Government job. Furthermore, the report submitted by the Inquiry Officer reveals that the punishment proposed by the said officer was only censure. It may also be kept in view that the appellant has been acquitted in the criminal case arising from same incident. For these reasons, we reduce the penalty of dismissal awarded to the appellant to the stoppage of two increments due to him for the years, following the passing of the impugned order of dismissal. Accordingly his appeal is partly accepted to the above extent. It is hereby directed that the appellant will be reinstated in service. As regards the payment of the emoluments to him for the inetervening period from date of his dismissal to the date of his reinstatement the competent authority will be free to take any decision that it may deem fit.
6. Given under our hand and the seal of this Tribunal this 29 day of July, 1986 at Karachi.
A.E/87/Lb/S