' CH. MUHAMMAD ARIF, J.---This petition under clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment dated 7-3-1996 made by the Federal Service Tribunal dismissing petitioner's appeal challenging order dated 29-10-1995 whereby the Appellate Authority had converted the major penalty of dismissal from service imposed on the petitioner vide order dated 9-6-1991 into that of removal from service.
2. The petitioner was working as Field Investigating Officer of the Narcotics Control Board at Attock in 1990. He received some information from Interpol Police against M/s. Mumtaz Abbasi and Afrahim Abbasi about their involvement in contraband drugs. They were kept under strict surveillance to the annoyance of Ch. Muhammad Afzal, S.H.O. Police Station Waris Khan, Rawalpindi who was friend of the said two agents. The said S.H.O. Succeeded in the registration of a case against the petitioner at the instance of these persons under section 382/365, P.P.C. Allegedly for snatching Rs,12 lac from Ashfaq Abbasi, an employee of Ehsanul Haq Abbasi. Petitioner was arrested in the case on 27-9-1990. Initially he was granted bail by the Illaqa Magistrate but later on the same was cancelled by the next higher forum. On appeal, the High Court again released him on bail on 26-1-1991. During the period of his incarceration in Jail, a show-cause notice was also issued to the petitioner on 7-11-1990. This notice was subsequently substituted with a charge-sheet dated 7-2-1991. Petitioner denied the charges contending that since the entire matter was pending consideration before the Civil and Criminal Courts, the departmental proceedings merit to be held in abeyance. However, the department proceeded with the case, appointed Mr. Mahmood Ahmad Butt, Group Leader, as Inquiry Officer who continued with the same and submitted report on 22-4- 1991 holding him guilty of the charges. The Authorized Officer recommended his dismissal from service and accordingly the Competent Authority dismissed him from service on 9-6-1991.
Petitioner's departmental appeal against this order of dismissal was disposed by the Appellate Authority vide letter dated 6-7-1992. He approached the Tribunal in appeal which was decided on 5-1-1993 when request for withdrawal was made reserving his right to move the competent Authority at appropriate time after disposal of the cases against him.
3. Subsequently, the petitioner was acquitted in the Criminal case and he made an appeal to the Secretary, Pakistan Narcotics Control Board, P.N.C.B. For short, seeking his reinstatement in service but the same was rejected on 5-4-1995. He again approached the Federal Service Tribunal and on 11-6-1995 the matter was remanded to the Appellate Authority to pass fresh orders after providing him an opportunity of hearing in person. It was after the remand that the Secretary, P.N.C.B.
Disposed it of on 29-10-1995 by converting the penalty of dismissal into one of removal from service. This order dated 29-10-1995 was made the subject-matter of the appeal before the Federal Service Tribunal which was dismissed vide the impugned order dated 7-3-1996 (incorrectly described as dated 18-3-1996).
Para. 6 of the judgment, impugned in this petition, is couched in the following terms:- "(6) As discussed in para. 3 above, the reduced penalty of removal from service has been imposed upon the appellant for absence from duty. Therefore, the only question for determination by us is whether the appellant was absent from the office and why? It is said that the appellant was not well and left the office on 29-8-1990. He was thereafter, advised bed rest by the doctor from 29-8- 1990 to 4-9-1990, again from 5-9-1990 to 18-9-1990 and further from 19-9-1990 to 27-9-1990 on account of suffering from illness. In support of his contention, the appellant has filed photocopy of three outdoor tickets of District Headquarters Hospital, Rawalpindi. The appellant who was present in the Court admitted that he did not submit these chits/so-called medical certificates to the office immediately and submitted the same to the office along with an application for leave only after the issuance of charge-sheet, dated 7-2-1991. No such application is available on record and the department has categorically denied to have received any such application. However, a day after the close of arguments on 15th January, 1996 the appellant sent by registered post photo copy of his application dated 27-2-1991 said to have been submitted with the Secretary, P.N.C.B., Islamabad. The medical certificates are also said to have been sent to the office along with this petition. Though the department has denied to have received this application but this amounts to admission by the appellant that he remained absent from the office from 29-8-1990 till the date of application i,e, 27-2-1991. Therefore, the question whether the appellant was absent from the office stands proved by admission of the appellant himself. Now the second question is what were the circumstances which prevented him from attending the office and why could not he submit leave application or alleged medical chits to the office before. The foremost excuse for remaining absent from the office is the illness of the appellant for which first medical chit is shown to have been issued on 29-8-1990. These medical chits too so-called medical certificates - apparently were issued by the Medical Officer, District Headquarters Hospital, Rawalpindi whereas the appellant was admittedly posted at Attock. Why such a certificate was not obtained from the doctor available at the place of posting and why this certificate was not submitted 'to the office immediately' - why the appellant had been keeping this chit with him for more than 5 months? There was no explanation to it. These certificates appear to have been manoeuvred and do not inspire any confidence in us. The second excuse for remaining absent from the office is the arrest by Police on 27-9-1990. It is, however, admitted that the appellant was granted 'bail on 1-12-1990 which was later cancelled by the Additional District Judge on 7-1-1991. He was on bail from 1-12-1990 to 7-1-1991, why he did not report to the office during this period? Similarly on release by the order of the High Court on 26-1-1991, he did not report for duty even thereafter or bother to make application for leave. The appellant moved application for leave for the first time on 27-2-1991 i,e, after about six months of his absence from the office. Narration of all these facts show that the appellant left the place of duty on 29-8-1990 without prior sanction of leave and did not make any application for leave etc. Upto 27-2-1991 without any reasonable excuse. Though the admission of unauthorised absence did not require any further inquiry, the Department was fair enough to hold an inquiry into the charge of absence etc. For which a formal charge-sheet was served on the appellant on 7-2-1991. The appellant did not join the inquiry proceedings despite repeated notices from the Inquiry Officer on the plea that civil/criminal proceedings were going on and, therefore, the departmental proceedings should have been postponed. We do not find any substance in this contention of the appellant. The appellant should have joined the inquiry and adduced proper defence evidence in support of his plea. His failure to join the inquiry proceedings supports the departmental stand that he was involved in litigation with the Police and others on his own and that the department had nothing to do with his arrest or any other civil/criminal proceedings that were initiated/conducted by or against the appellant. He had been admittedly absent from a sensitive assignment for a long time and such an absence cannot be tolerated on capricious grounds."
4. Mr. Shah Abdur Rashid, Advocate Supreme Court has simply reiterated the same objections as were attended to by the Federal Service Tribunal in para. 6 of the impugned judgment, reproduced in the preceding paragraph. According to him, nothing would turn on the absence of the petitioner between 29-8-1990 and 27-9-1990 in that he was advised bed rest by the Doctor. However, he was not in a position to state that his absence as above was either preceded by appropriate order of the competent Authority or succeeded by such order. Even the reasons detailed in para. 6 by the Federal Service Tribunal in relation to the failure on the part of the petitioner to obtain the requisite certificate from the Doctor available at the place of posting as also non-submission of the some other 'certificate' to the office immediately", have not been shown to be suffering from any factual inaccuracy whatsoever. The further observation that the petitioner applied for leave for the first time on 27-2-1991 i,e, after six months of his absence from office, was also not controverted by the learned counsel.
5. Learned counsel was of the view that in the presence of the observation by the Federal Service Tribunal that the penalty of removal from service "appears to be little excessive" and, therefore, the impugned order cannot be sustained. We are afraid even this argument does not advance petitioner's case a wee bit It was at the appellate stage that petitioner's conduct in relation to his own involvement in unauthorized litigation with the police was noticed resulting into bringing bad name to the Department as justification for the substitution of the penalty of dismissal from service with removal from service.
6. No other point was raised.
7. Not finding any force in this petition, the same is dismissed.
Leave refused.
1998 PLC (C.S.) 517 [Supreme Court of Pakistan] Present: Ajmal Mian, C.J., Abdur Rahman Khan and Ch. Muhammad Arif, JJ Mst. SIRAJUN-MUNIRA versus PAKISTAN through Assistant Deputy Director- General (Admn.), Islamabad Civil Appeal No, 260 of 1992 and Review Petition No,36 of 1994, decided on 22nd January, 1998.
(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 18th June,. 1991 passed in Appeal No, 431(R)190).
(a) Government Servants (Efficiency and Discipline) Rules, 1973--- ----R. 4---Constitution of Pakistan (1973), Art.212---Removal from Service---Wilful absence from duty---Service Tribunal dismissed civil servant's appeal against her removal on ground of limitation---Validity---Initially, civil servant's appeal against order of Service Tribunal had been dismissed against which she had filed review application wherein judgment of Court had been challenged on ground of limitation only and not on merits-Impugned order of Service Tribunal and that of Departmental Authority were, thus, perfectly correct on merits---Judgment of Service Tribunal, however, contained cogent reasons for dismissal of appeal on merits as also on limitation for civil servant could not explain delay of each day in filing time-barred appeal before Service Tribunal---No interference was warranted in judgment of Service Tribunal in circumstances. [pp. 519, 521] A & C
(b) Limitation Act (IX of 1908)--- ----S. 5---Constitution of Pakistan (1973)', Art.212---Time-barred appeal---Delay of each day in filing appeal must be reasonably explained. [p. 520] B Appellant in person. Imtiaz Muhammad Khan, Advocate-on-Record for Respondent (on 7-1-1998).
Dates of hearing: 7th and 8th January, 1998.
' ABDUR REHMAN KHAN, J.---This Appeal No,260 of 1992 filed by the appellant Mst. Sirajun-Munira against the judgment dated 18-6-1991 of the Federal Service Tribunal was earlier dismissed by this Court on 22-1-1994. The appellant moved Review Petition No, 36 of 1994 for the review of the said order. The review petition was heard on 14-6-1994 and notice to respondent was issued for 3-7- 1994. After hearing the counsel for the parties on this date the learned Judges observed "we had formed an opinion that the review petition merits dismissal and ordered accordingly". However, while going through the record at the time of writing the judgment, certain glaring facts came to light which necessitated rehearing of the review petition". Consequently, it was ordered that the review petition be fixed for rehearing. Subsequently this review petition was allowed by order, dated 12th December, 1995 with the direction that the appeal be fixed for rehearing.
2. The relevant background which led to the filing of the appeal is that the appellant was employed as Midwife in the respondent Directorate. She was removed from service on the ground of wilful absence and negligence in performance of duty by order, dated 26th May, 1990. The appellant approached the departmental authority in appeal which was rejected on 10th July, 1990. The legality of these orders was challenged before the Federal Service Tribunal which was dismissed by the impugned order as time-barred and also on merits.
3. The charge of willful absence from duty was brought against the appellant in the circumstances that she was allowed 30 days earned leave from 2-10-1989 to 31-10-1989. She was also granted leave on full pay from 1-11-1989 to 1-12-1989 and on medical ground from 2-12-1989 to 28-12-1989. It appears that she again applied for leave from 30-12-1989 to 26-1-1990 on the basis of medical certificate but she was directed to appear before Medical Superintendent, Islamabad within a week for second medical opinion. The Medical Superintendent by letter dated 29-1-1990 informed the Director-General that she (appellant) did not report in his office for second medical opinion.
But in spite of that she again on the basis of an Out-door Ticket from Federal Government Services Hospital requested for leave from 27-1-1990 to 23-2-1990. She was again directed by the Department on 8-2-1990 and the Medical Superintendent on 15-2-1990 to report for second medical opinion. She was, however, bold enough not to care for these directions and again on the same Out-door Ticket asked for leave from 24-2-1990 to 28-3-1990. It was through telegram, dated 26th February, 1990 that the Department warned the appellant that in spite of Office telegram dated 15-1-1990 and 8-2-1990 she failed to appear for second medical opinion and if this time she again did not report then disciplinary action will be initiated against her. On 3-4-1990 she was reminded by the Department that in spite of office telegrams dated 15-1-1990, 8-2-1990, 26-2-1990 and 11-3-1990 she avoided appearance for second medical opinion and if this time through this final direction she did not report within 3 days for the second medical opinion, then her services will be terminated. The Medical Superintendent on 22-4-1990 informed the Department that the appellant did not report. But in spite of this, appellant again applied for leave from 26-4-1990 to 23- 5-1990 on the basis of the same service. It appears that on 29-4-1990 she appeared before the Civil Surgeon who confirmed the genuineness of only one medical certificate issued for leave from 26-4-1990 to 23-5-1990. It was in these circumstances that the appellant was removed from service on 26-5-1990.
4. The above facts indicate that the conduct of the appellant all along remained obstinate and contumacious. It appears that she had taken it for granted that the department was bound to grant her leave on the basis of medical certificate she produced and that they would not enquire about the genuineness of the certificates. If at all in spite of the inherent defect in the medical certificate for leave from 26-4-1990 to 23-5-1990 as the Medical Superintendent has neither confirmed the existence of the ailment nor has verified the identity of the appellant, this certificate is accepted as correct, than it shows that the appellant fearing the fake nature of the other medical certificates either did not produce them or if they had been produced they were not held genuine. The plea of the appellant that she did not know of the telegram, show-cause notice etc. Appears to be ridiculous because she was served through her home address which is situated in T & T Colony. It could not be shown as to how she came to know of the final notice wherein she was warned that if she failed to appear within 3 days then her services will be terminated. Moreover, in her reply to the application for additional document she admits knowledge of show-cause notice.
It is also established on record that she continued residing in her official residence in T & T Colony.
In any case there is absolutely no explanation for her absence from .23-5-1990 to 26-5-1990. It is also strange to note that she filed departmental appeal the same date i,e, 26-5-1990 on which she was removed from service. It is, thus, clear that she knew about the proceedings but did not bother about it till an adverse order against her interest was passed. The perusal of the memo of review petition would show that the judgment of this Court has been challenged on ground of limitation only and not on merits. Therefore, on merits the orders of Departmental Authority and the Federal Service Tribunal are perfectly correct.
5. The Federal Service Tribunal was also correct to hold that the appeal before it was time-barred.
The appellant conceded that the appeal is being filed after prescribed period of limitation therefore, she submitted an application under section 5 of the Limitation Act for condo nation of delay. In this application it is admitted that the order of departmental authority in her appeal was intimated to her on 15-7-1990. The appeal before the Tribunal should, therefore, have been filed on 15-8-1990 but it was filed on 18-10-1990 with a delay of more than 2 months. This cannot be disputed that under the law the delay of each day in filing the appeal is to be reasonably explained. In the application for condo nation the reason for delay has been stated in para.2 which reads; "that the petitioner's departmental appeal was rejected on 10-7-1990. At that time the petitioner was pregnant. She was under medical treatment. She was operated on 8-8-1990 and gave birth to a female baby. She remained on bed 6/8 weeks under medical advice." For this malady she relies on the medical certificate dated 30-9-1990 issued from a private Clinic wherein operation is stated to have been performed on 8-8-1990 and she was advised rest for 6 weeks. The appellant has not made any effort to prove the identity and admissibility of this certificate in any manner. It shows to have been signed "For Abrar Surgery (Pvt.) Ltd". However, it could not be explained as to whether the authority signing it was competent to do so. In any case even if in spite of its doubtful nature if the period of six weeks is counted from the date of operation then it would end on 20-9-1990 but the appeal was filed on 18-10-1990 i,e, 28 days thereafter. Appellant did not hesitate to make misstatement in the application showing that she remained on .Bed for 6/8 weeks under medical advice. Even if the period of rest is read as 8 weeks then the last date for filing the appeal comes to 5-10-1990 and in that case the appeal would be barred by 13 days. Probably being conscious of this delay she managed to obtain another certificate on 7-3-1994; after about four years of the actual ailment and submitted it along with the review petition to show that she was advised rest till 20-10-1990. To say the least it was neither proper for the appellant nor for that matter for the concerned Doctor to go such out of the way to change the course of judicial proceedings by these maneuvered and unbecoming tactics. It was noted in the order of this Court of 3rd July, 1994 whereby the review petition was fixed for rehearing that if six weeks' time is counted from 30-9-1990 which is the date on which the certificate was issued then six weeks rest was to expire on 15-11-1990 and appeal having been filed on 18-10-1990 was apparently within time.
However, neither the appellant has pleaded her case on these lines nor such inference can be supported from the material on record. It is stated in the certificate that the appellant was operated on 8-8-1990 and was advised rest for six weeks. The reasonable inference is that six weeks is to be reckoned from the date of ailment. But the stand of the appellant, as taken in the application for condo nation, is that after the operation on 8-8-1990 she remained on bed for 6/8 weeks under medical advice. The appellant also herself did not consider the period of rest to run from the date of certificate; firstly, because in that case there would have been reason for her to submit an application for condemnation of delay. Secondly, she was not required to obtain another certificate after about four years when she was advised rest till 20-10-1990. And thirdly, the appellant in ground "(a)" of her review petition admits that she remained under treatment till 20- 10-1990.
The impugned judgment of the Federal Service Tribunal contains cogent reasons for dismissal of the appeal on merits as well as on limitation and we find no justification to differ with it. This appeal is, therefore, dismissed with costs.
Appeal dismissed.
1998 PLC (C.S.) 521 [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui and Munawar Ahmad Mirza, JJ INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others versus MAHMOOD IKRAM Civil Appeal No,937 of 1996, decided on 13th February, 1998.
(On appeal from the judgment dated 14-5-1995 passed by the Punjab Service Tribunal, Lahore, in Appeal No,27 of 1993).
(a) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R. 6---Probation of Offenders Ordinance (XLV of 1960), S.11--- Constitution of Pakistan (1973), Art. 212(3)---Misconduct---Recovery of contrabands from civil servant---Dismissal from service-- -Criminal Court on confession of commission of crime by civil servant granting him probation in lieu of sentence---Dismissal from service challenged by civil servant whereupon Service Tribunal taking lenient view converted penalty of dismissal from service into reduction of pay---Validity--- Leave to appeal was granted to consider effect of probation allowed to civil servant after his conviction qua misconduct attributed to him. [p. 524] A (b)
(c) #TBS
(d) PLC
(e) #TBE
(f) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R.6---Probation of Offenders Ordinance (XLV of 1960), S. 11---Conviction and probation of civil servant on charge of criminal offence---Departmental proceedings for enquiring into misconduct of delinquent civil servant---Effect of pendency of criminal trial and effect thereof on ultimately holding him guilty or innocent by Criminal Court---Competent Authority with regard to act or omission of civil servant constituting misconduct, was not precluded from initiating proceedings under relevant Efficiency and Discipline Rules irrespective of pendency of criminal trial---Criminal Court's final decision would have merely supporting evidentiary value, for, both such proceedings have distinct methods and basis for arriving at final conclusion. [p. 525] B Dy. I.-G. Police v. Anis-ur- Rehman Khan PLD 1985 SC 134 rel.
(g) Punjab Police (Efficiency and Discipline) Rules, 1975--- ----R. 6---Probation of Offenders Ordinance (XLV of 1960), S.11(2)---Constitution of Pakistan (1973), Art. 212---Civil servant---Charge of criminal offence---Conviction---Probation---Effect of probation of penalty contemplated by Punjab. Police (Efficiency and Discipline) Rules, 1975--- Offender on grant of probation, although would get opportunity of rehabilitation in society without stigma of conviction, yet in case of civil servant, without prejudice to benefit available under Probation of Offenders Act, 1960, Departmental Authority was not precluded from initiating action for misconduct under relevant Efficiency and Discipline Rules---Service Tribunal had partially accepted appeal without assigning reasons or examining effect of S.11, Probation of Offenders Ordinance, 1960---Service Tribunal by merely taking into consideration lenient view of Trial Magistrate placing civil servant on probation, had proceeded to award lesser penalty to civil servant, which was violative of law---Departmental Authority had independently drawn proceedings contemplated under Punjab Police (Efficiency and Discipline) Rules, 1975 by giving show-cause notice to civil servant, entertaining his reply and providing hearing and passed final order i,e, dismissal from service---Validity of such Departmental proceedings was neither analysed by Service Tribunal nor effectively challenged before it---No glaring impropriety or legal infirmity, as regards Departmental proceedings independently drawn against civil servant was pointed out---Judgment of Service Tribunal being patently erroneous, was, set aside in circumstances. [p. 534] C AIR 1975 SC 2216; AIR 1975 SC 2222 to 2254 paras. 12 to 15, 17,18, 20; R.
Kumaraswa mi Aiyar v. The Commissioner, Municipal Council, Tiruvannamalai 1957 Cri.LJ 255; Prakash v. The Director Postal Services (Posts and Telegraphs Department), Punjab Circle, Ambala AIR 1973 Punj. 1; 1973 Lab IC 74; Director of Postal Services v. Daya Nand 1972 Sery LR 325; 1972 Lab IC 736; Akella Satyanarayana Murthy v. Zonal Manager, Life Insurance Corporation of India, Madras AIR 1969 Andh. Pra. 371 = 1969 Lab IC 1241; Premkumar v. Union of India 1971 Lab IC 823 and Shankar Dass v. Union of India 1985 SC (L&S) 444 ref. Altaf Ellahi Sheikh, Additional Advocate-General, Punjab and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for appellants. Seerat Hussain Naqvi, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Respondent.
Date of hearing: 2th February, 1998.
' MUNAWAR AHMAD MIRZA, J.---This appeal is directed against judgment dated 14th May, 1995 passed by Punjab Service Tribunal in Appeal No,27 of 1993.
2. Material facts lie within narrow compass. Respondent a police constable of Mianwali District on deputation with Irrigation Department was apprehended from passenger Bus No,MI-5286 near Railway Crossing, M.M. Road, while carrying 1600 Grams of Charas. Excise Inspector recovered said 1600 Grams of Charas from the physical possession of respondent Mahmood Ikram on 28th August, 1987 and lodged F.I.R. No,88 with Police Station Kundian, District Mianwali under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (IV of 1979).
3. After completion of investigation, the respondent was sent up for trial before Magistrate 1st Class, Mianwali. He pleaded guilty and was sentenced by the trial Court to undergo simple imprisonment for one year vide judgment dated 13th June, 1988. Considering candid admission of guilt, the trial Court granted the respondent facility of probation subject to furnishing surety and personal bond for maintaining peace and keeping good conduct.
4. The respondent on 7th April, 1988 was, however, served with notice for showing cause disciplinary action including dismissal from service be not taken against him regarding grave misconduct of transporting 'Charas'. Respondent was provided hearing and after considering the material the competent authority vide order dated 5th August, 1990, dismissed him from service.
5. Respondent towards 18th August, 1990 filed departmental appeal against his dismissal from service, which was eventually dismissed on 17th November, 1990 after providing him fair opportunity of hearing. He then sent another representation to Inspector-General of Police, Punjab on 16th December, 1990, which also met the same fate and was rejected on 16th December, 1992.
6. Thus feeling aggrieved respondent had preferred an Appeal No,27 before Punjab Service Tribunal, Lahore, on 16th January, 1993. The Superintendent of Police (respondent No,3 in said service appeal) filed detailed comments. The claim of respondent set forth in the appeal was vehemently repudiated. It may be seen that the Tribunal partly accepted the appeal; and imposing major penalty of reduction in pay by a stage directed his reinstatement vide judgment dated 14th May, 1995. Operative portion whereof is reproduced below: "10. I have heard the parties and feel that the charge that the appellant was found to have been in possession of 1600 grams Charas by itself requires careful consideration. The appellant had in his appeal contended that he was a victim of conspiracy by certain Police Officers. The trial Court placed the appellant on probation by taking a lenient view as clearly indicated in the Court order.
Rule 10 of the Police E & D Rules provides reduction in rank as a penalty as an alternative to such severe penalties as those of dismissal or removal from service. I am, therefore, of the view that the appellant should be re-instated in service with a lesser penalty being imposed on him so that he makes a conscious effect to show good conduct in future and the purpose with which the learned Court had placed him on probation, keeping in view his young age is not defeated.
11. In view of the foregoing discussion, I set aside the impugned order, re-instate the appellant in service and impose upon him the major penalty of reduction in pay by a stage. The period between his dismissal from service and resumption of duty should be treated as leave subject to title".
7. Department had challenged above decision through petition for leave to Appeal No,1244-L of 1995. This Court, however, granted leave on 26th February, 1996, to consider effect of probation allowed to respondent after his conviction qua misconduct attributed to him.
8. Learned Additional Advocate-General criticizing validity of the impugned judgment argued that respondent was undisputedly involved in an offence covering moral turpitude; establishing recovery of Charas weighing 1600 grams from his possession which fact was also admitted by him before trial Court while pleading guilty. He maintained that detailed departmental inquiry was not required because grave misconduct committed by respondent was further supplemented by sentence awarded to him by Court of competent jurisdiction. It was emphatically urged that Service Tribunal had acted arbitrarily in converting penalty of respondent's dismissal from service to reduction in rank. According to learned State counsel impugned judgment even otherwise suffered from material defects because no justification was given or reasons assigned regarding aforesaid modification in the penalty.
9. Mr. Seerat Hussain Naqvi, ASC, controverted the above stand and with great vehemence argued that irrespective of admitted feature of the case or conviction recorded by the trial Court; undenyingly respondent was granted probation, therefore, under section 11 of the Probation of Offenders Ordinance, 1960 (Ordinance No,XLV of 1960) the said imprisonment cannot constitute any disqualification or disability.
10. We have carefully perused the record and considered above arguments in the light of relevant law.
11. It may be seen that criminal charge pertaining to recovery of Charas from the possession of respondent (Mahmood Ikram) and departmental proceedings regarding charges of misconduct drawn under Police Efficiency and Discipline Rules, 1975 are quite independent and distinct.
Admittedly respondent was convicted by the trial Court on his pleading guilty at the very inception and simultaneously granted probation vide order dated 13.6.1988. Two important primary questions arise for determination. Firstly, whether departmental proceedings for enquiring into misconduct of the delinquent official are affected by the pendency of criminal trial and its effect on ultimately holding him guilty or innocent by the trial Court and secondly, whether after conviction the grant of probation under section 11(2). Probation of Offenders Ordinance, 1960, completely obliterates the guilt automatically, protecting such offender from imposition of penalty contemplated by relevant Efficiency and Disciplinary Rules.
12. Now taking up the first point, it hardly needs elucidation that, Competent Authority with regard to act or omission of Government servant constituting misconduct, is not precluded from initiating proceedings under Efficiently and Disciplinary Rules irrespective of the pendency of criminal trial.
Besides, its final decision has merely supporting evidentiary value, because both these proceedings have distinct methods and basis for arriving at final conclusion. This Court has authoritatively ruled in case of Deputy Inspector-General Police v. Anis-ur-Rehman Khan (PLD 1985 SC 134) that judgment of conviction or acquittal against accused officer, who has violated law or rules is merely an assessm ent of the criminal action alleged to have been committed by him whereas departmental proceedings whereby action is sought; regulates his act or omission showing misconduct or malversation; therefore, both types of proceedings are quite distinguishable and relate to comprehensive procedure specified under corresponding penal law or Efficiency and Disciplinary Rules. In the afore-quoted report two police officers were issued show-cause notices for committing acts of misconduct and malversation with Mst. Aisha, who was recovered from residential accommodation of Inspector Anis-ur-Rehman during raid conducted by superiors. F.I.R. No,.100(376) was registered against the police officers under sections 342, 354, 376 and 511, P.P.C. On 27th. June, 1980 at Police Station Mozang. When criminal case was pending the accused officers were served with show cause notice. It is quite evident that after recording proceedings under relevant rules they were dismissed from service on 9th July, 1980. Both filed appeals before next higher authority. Meanwhile these accused officers approached Punjab Service Tribunal, where service appeals were accepted, directing their reinstatement with back benefits. It is pertinent to mention that for failure of proper proof both accused were acquitted of criminal charge. However, judgment of Punjab Service Tribunal was challenged before this Court, when setting aside the decision, their dismissal from service was upheld. The extracts from observations appearing at pages 139, 140, 143 and 144 of afore-quoted report have direct bearing on the pivotal question in hand, therefore same are reproduced below:--- Pages 139 and 140 "As regards the scope of two proceedings it has to be noted that the criminal trial of the appellants was on a case registered under section 342/354/376/511, P.P.C. In more comprehensive terms it implied an attempt on the part of appellants to wrongfully confine a lady and attempt an assault or use criminal force with a view to outrage her modesty and to commit rape on her. These charges would fail if the lady concerned at the proper stage made a statement that she was a consenting party to all that happened. The charge against the appellants in the disciplinary inquiry was one of malversation and misconduct against one and of abusing her and escorting her to a residential portion of Anisur Rehman the co-appellant against the other. The word malversation' has the meaning "corrupt behavior in position of trust; corrupt administration (of Public money etc.).
' Its root is in Latin ' male' meaning badly and versari meaning 'behave'. 'Corrupt' has the meaning 'rotten, depraved, wicked, influenced by bribery' (Concise Oxford Dictionary). Misconduct' has been defined in clause (iii) of rule 2 of Punjab Police (Efficiency and Discipline) Rules, 1975 under with the appellants were proceeded against. It reads as follows:-- "2. Definitions.--In these Rules, unless the context otherwise requires:-- (i)
(ii)
(iii) 'misconduct' means conduct prejudicial to good order or discipline in the Police Force, or contrary to Government Servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any of the prove and rules regulating the function and duty of a Polio bring or attempt to bring political or other outside in flue or indirectly to bear on the Government or any Govern in respect of any matter relating to the appointment, transfer, punishment, retirement or other conditions of Police Officer; (iv)
(v)
' These charges of malversation and misconduct have notion to do with the criminal, charge or with the cones willingness of the victim. It is a charge relatable to the ft. And the service discipline within which he works. The Ti appears, with respect, was clearly in error in assuming that the two charges were co-extensive and inter-connected that the judicial trial was the 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."
Pages 143 and 144 "It appears to us that the Tribunal has laid down certain requirements for the competent Authority deciding to hold a departmental inquiry without the appointment of an Inquiry Officer. These cannot be sustained on the basis of law on the subject. The good record, the press reports and the quality of service rendered by an official is not the criteria for determining whether the inquiry shall be held after appointing an Inquiry Officer or by issuing a show-cause notice straightaway. It is the nature of the allegation, the time, occasion, the place and the presence or absence of superiors etc. Which may have a bearing on this question. No exhaustive or enumerative description of all the facts and circumstances can be provided. The competent Authority is the best judge of it. Its discretion cannot be controlled by any such standards as have been indicated by the Tribunal in its order.
' 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 principles of law to await and follow the judicial verdict in the case."
13. Now we advert to second aspect whereby under the provisions of Probation of Offenders Ordinance, 1960 (hereinafter referred to as 'The Ordinance') immunity from departmental disciplinary proceeding has been claimed. It may be seen that primary object of enacting law regarding probation was to provide reformatory measures and retrieve the amateur offenders who are neither involved for committing heinous offences nor those connected with moral turpitude; thereby making genuine attempt of restraining them from repetition of crime and ensuring their useful rehabilitation as honest, industrious and law abiding citizens within the purview of section 5(2) of The Ordinance: Thus, a Court trying the case has been empowered to exercise discretion in suitable cases so that ' First Offenders' may be saved from indignity of incarceration and becoming obdurate criminal by preventing their association with hardened guilty persons and thereby keep them from unhealthy influence of jail life. It is noticeable that section 11(2) of 'The Ordinance' clearly mentions about wiping away the stigma of conviction, which could create future impediments or hazards of such offender while making efforts to rehabilitate himself thus providing a shield from social sickness or his rejection in the society on the ground of past conviction.
14. Now looking to the facts of present case it may be seen, that under section 6 of the Punjab Police (Efficiency & Discipline) Rules, 1975, when departmental proceedings are drawn against the persons responsible for misconduct the Authority is competent to determine whether circumstances require detailed inquiry by appointing an Inquiry Officer or summary proceedings be held by providing personal hearing and summoning the accused officer in orderly room after apprising of the charge. Evidently in the present case required procedure was duly complied with, besides providing adequate opportunity of hearing to respondent at every stage. From the admitted facts we are obliged to examine whether disregarding of disability imposed by any law contemplated by section 11(2) of ' The Ordinance', would extend to respondent who is removed from service and awarded penalty by adopting prescribed procedure irrespective of his conviction.
Section 11 of the Probation of Offenders Ordinance, 1960 reads as under:-- "11. Effects of discharge and probation.---(1) A conviction of an offence, for which an order is made under section 4 or section 5 for discharging the offender after the due admonition or conditionally or placing him on probation, shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the provisions of this Ordinance: ' Provided that where an offender, being not less than eighteen years of age at the time of his conviction of an offence for which an order discharging him conditionally or placing him on probation is made, is subsequently sentenced under this Ordinance for that offence, the provisions of this subsection shall cease to apply to the conviction.
(2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is discharged after due admonition or conditionally, or who is placed on probation, shall in any event be disregarded for the purposes of any law which imposes any disqualification or disability."
' Bare perusal, discloses that disqualification or disability mentioned therein is not directly relateable to conviction for an offence wherein offender has been granted probation but 'contemplates any disqualification or disability specifically provided, or something attached to such law which should be ignored while applying above referred provisions of the Ordinance.
Therefore, for all practical purposes the facility of probation does not altogether obliterate the conviction, but eliminates its impact by lifting away disqualification attached to any other law.
Apparent by section 11 (2) of "The Ordinance" pre-supposes that disqualification should not merely result from conviction awarded to offender released on probation but must also be provided by some law other than afore-referred enactment. We have already noticed that guilt or innocence resulting from criminal trial is irrelevant for proceeding initiated against Government servant under Efficiency and Disciplinary Rules. Similarly it was not essential that material brought forth during investigation coupled with other record may constitute miss-conduct entailing punishment under service laws. It therefore, presupposes that for applying provision of section 11(2) of the Ordinance the qualification or disqualification must not be merely flowing out of or consequential from conviction but must be through independent law prescribing such disability or disqualification.
17. At this stage it would be proper to mention that Probation of Offenders Act, 1958 was promulgated on 16th May, 1958 in the Republic of India. Its section 12 broadly speaking, has similar effect and reads as under:- "12. Removal of disqualification attaching to conviction.---Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: ' Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence."
' This provisions of law has been pressed for interpretation on various occasions and was exhaustively dealt in case AIR 1975 SC 2216 wherein decision of (i) Kerala High Court in Civil Appeal No,1664 of 1974 and (ii) Rajasthan High Court in Civil Appeal No,891-892 of 1974 were challenged. In Kerala case offender was apprehended on 12th August, 1972 at Olavakkot Railway Station for disorderly drunkness and indecent behavior Sub-Magistrate, Palghat finding guilty, instead of sentencing released him on probation. Disciplinary proceedings were drawn and he was dismissed from service in view of misconduct. High Court quashed the proceedings because trial Court has not imposed any sentence and rule 14(1) under which removal had been ordered was found inapplicable. Out of other two appeals arising from Rajasthan High Court, as regards Civil Appeal No,891 of 1975 accused Narsingh was convicted for having possession of stolen copper but appellate Court (Additional Sessions Judge, Jodhpur) maintaining conviction had set aside the sentence granting him probation. Departmental authority removed him from service on 26-2-1971 without holding departmental proceedings. On challenge High Court quashed the decision similarly in the second case; Appeal No,892 of 1975 Railway fireman at Jodhpur was convicted under section 420 Indian Penal Code but trial Magistrate instead of sentencing him directed his release on probation. Consequent upon said conviction offender Abdul Hamid was removed from service which was quashed when challenged through Constitutional petition. Analysing the facts and identical legal points the Supreme Court of India has observed with approval law laid by various High Courts with regard to application of section 12 of Probation of Offenders Act, 1958, by making special reference to service law:-- (AIR 1975 SC 2222 to 2254-paras 12 to 15, 17, 18 and 20) "(12)
' It was suggested that section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification attached to a conviction of an offence under such law. This argument, in our opinion, is based on a gross misreading of the provisions of section 12 of the Act.
The words 'attaching to a conviction of an offence under such law' refer to two contingencies:(i) that there must be a disqualification resulting from a conviction; and (ii) that such disqualification must be provided by same law other than the Probation of Offenders Act. The Penal Code does not contain any such disqualification. Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused. It is also manifest that disqualification is essentially different in its connotation from the word 'misconduct', Disqualification cannot be an automatic consequence of misconduct, unless the statute so requires. Proof of misconduct may or may not lead to disqualification, because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case neither Article 311(2) proviso (a) nor Rule 14(i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311(2) proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show-cause notice. Rule 14 despite incorporating the principle of proviso (a) to Article 311(2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without any thing more will result in his automatic dismissal or removal from service.
(13) It was, however, suggested that Rule 14(i) of the Rules of 1968 is the provision which contains the disqualification by dispensing with the departmental inquiries contemplated under Rules 9 to 13 of the said Rules. This cannot be the position, because as we have already said Rule 14(i) only incorporates the principle of proviso (a) of Article 311(2). If section 12 of the Probation of Offenders Act completely wipe out the disqualification contained in Article 311(2) proviso (a) then it would have become ultra vires as it would have come into direct conflict with the provisions of the proviso
(a) to Article 311 (2). In our opinion, however, section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. This matter was considered by a number of High Courts and there is a consensus of judicial opinion on this point that section 12 of the Act is not an automatic disqualification attached to the conviction itself.
(14) In R. Kumaraswa mi Aiyar v. The Commissioner, Municipal Council, Tiruvannamalai, 1957 Cri.LJ 255 at p.256 (Mad) Rajagopala Ayyangar, J., as he then was, observed as follows:-- "If for instance the petitioner is dismissed from service because he has been found guilty of an offence involving moral turpitude it cannot be said that he is suffering from a disqualification attaching to a conviction. What section 12-A has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the accused. In my judgment the possibility of disciplinary proceedings being taken against a person found guilty is not a disqualification attaching to the conviction within the meaning of section 12-A of the Probation of Offenders Act."
' The same view was endorsed by the Full Bench of the Punjab and Haryana High Court in Om Prakash v. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala, AIR 1973 Punj 1 at p.4 = (1973 Lab IC 74 at pp.77 & 78) (FB) where it was observed: "What section 12 removes is a disqualification attaching to a conviction. In my opinion, neither liability to be departmentally punished for misconduct is a disqualification, nor it attaches to the conviction. ' Disqualification' in its ordinary dictionary meaning connotes something that disqualifies or incapacitates. To disqualify a person from a particular purpose means to deprive that person of the qualities or conditions necessary to make him fit for that purpose."
"The other reason why section 12 of the Act does not help the petitioner is that the departmental proceedings are not attached to the conviction of the offence. Departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the Government servant No part of section 12 is intended to exonerate a Government servant of his liability to departmental punishment for misconduct. This provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis of the punishment is the misconduct and not the conviction."
(15) A Full Bench of the Delhi High Court in Director of Postal Services v. Daya Nand, 1972 Sery LR 325 at p.341 = (1972 Lab IC 736 at p.747) held the same view and observed thus: "Firstly, the ordinary meaning of 'qualification' is the possession of some merit or quality which makes the possessors eligible to apply for or to get some benefit. The word 'disqualification' used in section 12 has the opposite meaning. It imposes a disability on the person to whom the disqualification is attached in applying for or getting such benefit. The disqualification contemplated by section 12 is something attached to the conviction, namely, something which is a consequence or the result thereof. Instances of such disqualification may be found in a statute, statutory rule or in administrative practice. Under section 108 of the Representation of the People Act, 1951, a person is disqualified to be a Member of Parliament or State Legislature if he is convicted of certain offences. It would also be an administrative consideration in entertaining applications for jobs or for grant of licensees to disfavor an applicant who is a convict. Such a disqualification is removed by section 12. This meaning of disqualification does not include the reason by a hearing prior to punishment is dispensed with by proviso (a) to Article 311(2) of the Constitution. Secondly the object of section 12 is to remove a disqualification attached to conviction. It does not go beyond it."
(16) The Andhra Pradesh High Court in Akella Satyanarayana Murthy v. Zonal Manager, Life Insurance Corporation of India, Madras, AIR 1969 Andh. Pra. 371 at p.373 = (1969 Lab IC 1241 at p.
1243) appears to have taken the same view where it was observed thus; ........ We are of the view that what section 12 of the Central Act has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the official concerned. The disciplinary authority is not precluded from proceedings under Regulation 89(4)."
(17) The Madhya Pradesh High Court also took the same view in Premkumar v. Union of India, 1971 Lab IC 823 at p.824 (Madh Pra) where it was observed:- "We have heard the learned counsel at some length but we find ourselves unable to agree with the above contention. The relevant words of the section are 'shall not suffer disqualification, if any, attaching to a conviction of an offence under such law; The words can only be read so as to remove the disqualification which under some law may attach to a person on account of his conviction. For instance, if a person is convicted of an offence, he is disqualified from standing for election to the Central or State Legislatures. But if such a person is given benefit under the Probation of Offenders Act, then by virtue of section 12 of that Act the disqualification for that purpose (standing for election) will stand removed."
(18) Even the Rajasthan High Court in its judgment concerning Civil Appeal No,891 of 1975 has endorsed the view taken by the Madras High Court and followed by the other High Courts. We find ourselves in complete agreement with the view taken by the Madras High Court as referred to above and as endorsed by the Delhi, Rajasthan, Punjab, Andhra Pradesh and Madhya Pradesh High Courts." (underlining is ours)
18. In another case entitled Shankar Dass v. Union of India (1985 Supreme Court Cases (I&S) 444), conviction was recorded by the trial Court for an offence under section 409, I.P.C. Causing criminal breach of trust, but finding him victim of adverse circumstances directed his release on probation.
However, pursuant upon said conviction Government chose to Dismiss him from service. Eventually said order was set aside allowing reinstatement with back benefits mainly because departmental authority had factually acted without holding inquiry as regards misconduct. However, question concerning disability or disqualification under the law was interpreted in para. 4 at pages 446 and 447 as under:- "4. Section 12 of the Probation of Offenders Act must be placed out of way first. It provides that notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or 4 "shall not suffer disqualification" attaching to a conviction for an offence under such law. The order of dismissal from service consequent upon a conviction is not a 'disqualification' within the meaning of section 12. There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications. For example, Chapter III of the Representation of the People Act, 1951, entitled 'Disqualifications for membership of Parliament and State Legislatures' and Chapter IV entitled 'Disqualifications for Voting' contain provisions which disqualify persons convicted of certain charges from being members of Legislatures or from voting at elections to Legislatures. That is the sense in which the word 'disqualification' is used in section 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned Single Judge of the Delhi High Court."
19. On considering the principle of law discussed above, we feel inclined to hold that, by virtue of section 11(2) Probation of Offenders Ordinance, 1960, the offender gets an opportunity of rehabilitation in the society without stigma of conviction provided the offence is not repeated and terms of bond furnished by him for good conduct and peace are honored till stipulated period; nevertheless, in case of Government servant without prejudice to benefit available under aforesaid enactment, the Departmental Authority is not precluded from initiating action for misconduct under relevant Efficiency and Discipline Rules.
20. Now reverting to controversy culminating in present case, obviously Punjab Service Tribunal has partially accepted the appeal without assigning reasons or examining effect of section 11 of 'The Ordinance'. Surprisingly, the Service Tribunal merely taking into consideration lenient view of trial Magistrate placing respondent on probation; the Service Tribunal has proceeded to award lesser penalty to respondent, which is clearly violate of law.
21. Additionally, Department in the present case, had independently drawn proceedings contemplated under Efficiency and Discipline Rules and by giving show-cause notice, entertaining the reply and providing hearing had passed final order. It may be seen that validity of said Departmental proceedings was neither analyses by the Tribunal nor effectively challenged before it. Even otherwise, we do not notice any glaring impropriety or legal infirmity as regards Departmental proceedings independently drawn against the respondent.
22. In the result, we are inclined to hold that impugned judgment, for above reason, is patently erroneous, therefore, merits to be set aside. Accordingly appeal is allowed, however, parties may bear their respective costs throughout.