ABDUL QADEER CHAUDHARY, J.--Leave to appeal was granted to consider the effect of the dismissal of the appellant from service after he was acquitted of a criminal charge.
2. The facts, in brief are that the appellant was posted as Senior Clerk in the Office of the District Food Controller, Sialkot. On 23-6-1973, a raid was conducted and he was arrested on the allegation that he had accepted a sum of Rs.20 as illegal gratification from the complainant. The appellant was convicted and sentenced to undergo R.I. For six months and fine of Rs.100 or in default to undergo further R.I. For one month, by the Special Judge, Anti-Corruption, Lahore. By means of judgment, dated 15-8-1975. The appellant filed an appeal in Lahore High Court against his conviction and his sentence was suspended. The respondent No.2 on 10-10-1975 suspended the appellant from the date of his conviction i.e. ' 15-8-1975. The respondent No.2 vide order, dated 22- 1-1980 dismissed the appellant from service on the basis of his conviction recorded against him by the learned Special Judge. The appeal of the appellant filed against his conviction was accepted by the Lahore High Court vide judgment, dated 10-1-1981. The concluding part of the judgment reads as hereunder:-- "For the foregoing reasons, I allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge by giving him the benefit of doubt. He is on bail. He shall be discharged from his bail bonds."
3. The appellant made a representation to the respondent No.2 for reinstatement in service. A representation was also made before the departmental authority (respondent No.1) on 14-11-1981 but it was rejected on 19-1-1982 and the appellant was informed that "Your request cannot be acceded to as you have not been acquitted honourably". The appellant challenged this order before the Punjab Service Tribunal. His appeal was dismissed by the Tribunal on 23-10-1982 on the ground that the acquittal was not honourable therefore the appellant was not entitled to reinstatement in service.
4. The admitted position is that the appellant was dismissed from service as he was convicted by the Special Judge. The inquiry procedure under the Punjab (Efficiency and Discipline) Rules, was not adopted in this case. Rule 9, Punjab Civil Servants (Efficiency and Discipline) Rules, is as follows:- "9. Rules not to apply in certain cases; Nothing in these rules shall apply to a case--
(a) Where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or imprisonment; or
(b) Where the authority is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to give the accused an opportunity of showing cause."
5. Rule 9(a) of the rules would apply where a civil servant is dismissed from service on ground of his being convicted and sentenced to fine or imprisonment. The main thrust of the argument on behalf of the respondent is that the appellant was not honourably acquitted. But this fact is immaterial as no sentence of fine or imprisonment has been imposed upon the appellant. He was acquitted of the charge. Under O&M Establishment Manual, Vol. 1 (revised) (Chapter V at p.546) the following principles have been laid down:-- "I am directed by the Governor of West Pakistan to address you on the subject noted above and to say that the Judgment of a Criminal Court is not necessarily decisive as regards departmental or disciplinary action. A prosecution may fail for technical reasons; sometimes the Court notes' the facts as suspicious, but gives the accused the benefit of the doubt; and sometimes a prosecution fails for the patent reason that witnesses have been bought over. In all such cases it may well be hold that the circumstances are so suspicious that the Government servant can no longer be safely trusted; or it may be held that, though the official is acquitted on the main charge, facts brought to light in the course of the trial show defects of character or a disregard of proper procedure which would justify the taking of departmental action against the accused. But departmental action should not follow a prosecution which has failed for the sole reason that witnesses have been bought over unless the Court itself has noted that the witnesses have been influenced.
(2) Frequently, however, the above elements are absent, e.g., when an official is tried on a definite charge and is acquitted either in the original Court or on appeal and there is no question of the acquittal being merely on technical ground of evidence having been suppressed. In such cases, and when no facts are established in the course of the trial that would justify action being taken for disregard of departmental rules, the decision of the Court on the facts should be accepted and no departmental action should be taken.
(3) Similarly when the charge is dismissed without any suggestion by the Court that the conduct of the accused has been suspicious or any indication that it is merely giving the accused the benefit of a doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should be taken.---
6. The above principles have to be followed in taking departmental action against a Government servant who has been prosecuted . Criminally ' but is acquitted by the Court. A proper inquiry has to be conducted before a penalty is imposed upon a civil servant unless the inquiry procedure is dispensed with in accordance with Rules. As the appellant has not been awarded any fine or imprisonment, therefore, rule 9 is inapplicable. This Court in Muhammad Sardar Khan. v. Senior Member (Estab) Board of Revenue (1985 SCM R 1062) has examined all the relevant rules.
7. Rule 73(a) of the Punjab Civil Service Rules was interpreted by this Court in para 7 of the judgment. The operative part reads as follows:-- "The powers of the relevant authority to inflict penalty on accused civil servant in disciplinary proceedings and the procedure, therefore are provided for in the Punjab Civil Servant's (Efficiency and Discipline) Rules 1975. Under rule 5 the competent authority could initiate proceedings against a -civil servant if in his opinion sufficient ground exists for doing so. The authorised officer is then required to proceed against such civil servant. It is then within the discretion of the authorised officer to decide whether the case calls for a formal inquiry to be conducted or to proceed against him without such a formal inquiry by adopting the procedure laid down under rule 6(3). The procedure for an Inquiry Officer or inquiry committee is laid down in rule 7. Rule 9 then authorises the competent authority to dismiss or remove an accused civil servant, without following the procedure laid down in the rules, in case the ground for his removal is the conduct `which has led to a sentence of fine or of imprisonment'. Admittedly in the present case the order of removal, as the show-cause notice clearly reveals, proceeds upon the basis of rule 9 of the Efficiency and Discipline Rules. However, it does not require any elaborate argument to show that in case the sentence is set aside and the accused officer is acquitted, the very basis on which such order of removal from service stands, would disappear."
8. It was observed by this Court that:-- "A plain reading of this rule makes it abundantly clear that the rule deals with the question of the pay and allowances to which a civil servant would be entitled in case his suspension is subsequently held to have been unjustifiable or not wholly justifiable, or when a civil servant is reinstated after dismissal by the revising or appellate authority. It is with reference to the extent of the pay and allowances to which a civil servant would be entitled in such situation with which the rule clearly deals. It is not a rule dealing with the substantive ground on which a civil servant would be liable to be removed from service. Apparently, therefore, this rule could not be lifted out of context for the purpose of making it the basis of the penalty inflicted on a civil servant. The Tribunal was not dealing with the question of determination the pay and allowances to which the appellant was entitled but was considering the correctness of the order of removal from service."
The learned Assistant Advocate-General was referred to the decision of this Court in the case of Mian Bashir Ahmad v. Board of Revenue (CA. 522/1988), but the facts are distinguishable.
9. 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.