' ABDUL HAMEED KHAN KHATTAK, (MEMBER)---This appeal is directed against an order dated 25-2- 1998, passed by the respondents thereby dismissing the appellant from service.
2. Concisely the facts stated are that the appellant was recruited as a Malli in 1976 by the respondents. It was asserted that respondent No,1 directed all the 30 Mallies on the strength of Kharian Cantonment not to avail Sunday 27-7-1997, as leave rather they were orally ordered to be ,present for performing official duties but no Malli turned up on Sunday as it was raining heavily, respondent No, l as a punishment forfeited the pay of all such Mallies for the next day i,e, 28-7-1997 (although they were present on duty on 28-7-1997) and only 16 Mallies were put under suspension for their absence on Sunday. For the reason best known to respondent No,1, out of 16 suspended Mallies, 3 Mallies including the appellant were reinstated on 8-8-1997, and on '25-8-1997 all the said .3 reinstated Mallies were transferred to Conservancy Branch as Lorry Loaders for which they felt offended and annoyed as instead of performing the duties of Mallies they were ordered to work as Loaders of filth lorry although they being Muslims shunned this duty and in order to get redressed their such grievance they made several requests in writing to the respondents and many other high-ups including the Prime Minister but in vain rather such efforts on their part seem to have put oil on the burring fire, resulting in charge-sheeting of the appellant on 28-1-1998 to which the appellant responded in writing but the respondent feeling dissatsfied with his such explanation, issued final show-cause notice to him on 12-2-1998 and vide the impugned order dated 25-2-1998, he was dismissed from service. The appellant preferred departmental appeal on 17-3-1998 which was not responded within the stipulated period, hence, he made the instant appeal on 15-7-1998.
3. Arguments heard, record perused.
4. At the very out-set the learned counsel for the respondents raised legal objection of limitation as according to him, the impugned order was passed on 25-2-1998, departmental appeal was instituted on 17-3-1998 but the instant appeal before this forum having been preferred beyond 90 days of the date of the impugned order or for that matter 17-3-1998, the date when departmental appeal was filed, was hopelessly time-barred. The learned counsel for the appellant conversely/vehemently submitted that the appeal was well within time and he in this regard sought support from the rule enunciated in 1997 SCM R 1160. We have given thoughtful consideration to this legal aspect of the matter but do not feel inclined to be impressed by the contention raised on behalf of the respondents. It was inter alia held in the above stated authority of the Hon'ble apex Court that: "Provision of section 4, Service Tribunals Act, 1973 confers right on civil servant to appeal against original or appellate order of Departmental Authority--Such right could not be restricted to only original order and not the appellate order--Civil servant having filed appeal within thirty days from appellate order before Service Tribunal, same was within time."
' By applying the above interpretation of the relevant provision, it, stands manifestly established that the present appeal having been filed within 30 days from the expiry of 90 days (during which the departmental appeal was required to be disposed of or even if remained unresponded), is certainly within time. As in this case the departmental appeal was not disposed of even on the expiry of required stipulated period of 90 days of its filing, thus, the appellant shall be deemed as having been allowed further 30 days from the expiry of 90 days during which he could come to this Tribunal as in such eventuality it shall be deemed that the departmental appeal did not bring any fruit and the period of limitation to challenge even such presumptive order would, thus, start running against the appellant from expiry of 90 days' period. What we conclude from above discussion is that a civil servant can bring departmental appeal within 30 days of the passing of the impugned order against him and if such appeal remains undisposed of/unresponded for 90 days then the appellant still has 30 days period at his disposal to come to this Tribunal and as the appellant in the present case approached this Tribunal within said 30 days' period, hence, appeal cannot be said to be beyond limitation and the above objection raised by the learned counsel for the respondents seems to be misconceived which is hereby brushed aside. Even otherwise presuming just for the sake of arguments (though not conceding) that the appeal is time-barred, as the same succeeds on merits, the limitation, if any, can be condoned as there is plethora of pronouncements of superior Courts on this point.
5. Now adverting to the facts of the appeal, in our view, as would be seen in the following paras., the appeal shall have to be accepted as it so merits and the impugned order suffers from many legal and factual infirmities thereby rendering it illegal, null and void.
6. Before entering upon the discussion on merits, we would like to dispose of yet another legal objection raised on behalf of the respondents to the effect that the respondents were much more magnanimous in making the impugned order only to the extent of dismissal from >service otherwise the respondents could even deal with appellant under rigorous provision of Pakistan Essential Service (Maintenance) Act, 1952 which could even result in imprisonment upto one year of the appellant for such offence. This contention seems to be having hardly any relevancy at the moment as admittedly the respondent did not resort to taking any action against the appellant under the provisions of said Act and he felt satisfied to dismiss him from service by pressing into service, the procedure laid down in rule 50 of the Pakistan Cantonment Service Rules, 1954, thus, raising of such contention from the respondent's side during the course of arguments before us seems to be too late in the day or to be more apt such a submission altogether misconceived and misdirected.
7. There is no denying the fact that the appellant had already been punished by forfeiture of his one day pay for his absence for Sunday i,e, 27-7-1997 and forfeiture of pay is certainly a minor penalty. Once the competent Authority had chosen to inflict and award minor penalty we wounder as to why subsequent thereto major penalty in the form of dismissal from service was required to be exacted against the appellant for the same offence. This act of the respondents legally speaking, tantamounts to vaxing of appellant twice for the same offence which is never warranted under the norms of legal and natural justice.
8. This case also can be seen from a different angle, i,e, appellant seems to have been made a scapegoat and was definitely discriminated against which also leads to drawing of an irresistible conclusion that he was victimised for the simple reason that he had been addressing letters to the high-ups for getting redressed his grievance. Out of 30 Mallies, none turned up on the aforementioned Sunday but only 16 Mallies including the present one were chosen for being put under suspension. It transpires that during the period of suspension of the appellant he had been making applications to the higher authorities for getting redressed his grievance which infuriated and invited the ire of respondent No,1 and as a first step in order to shut his mouth he reinstated him and as a second step he transferred him to Conservancy Branch on 25-8-1997 and directed him to perform the duties as Lorry Loader. This act of Respondent No,1 was legally unwarranted as having transgressed his powers and authority as it is strictly laid down in sub-clause (2) of rule 4 of the Pakistan Cantonment Service Rules, 1954 that: "(2) No alterations in the number, designations and scales of pay of such servants shall be made without the sanction of the Director."
' Admittedly respondent No,1 never obtained prior sanction of the Director before altering the designation of the appellant from Malli to Lorry Loader and till today no such sanction was applied for nor accorded by the Director. In the definition of category of Class-IV Servants of the above Rules, no such designation as Lorry Loader is available. As pet record, admittedly the appellant was recruited and continued serving till this episode as Malli and the contention of the respondent that he had ample powers to depute him for performing the duties of Lorry Loader seems to be not supported by any rule. Firstly because there is no such designation as Lorry Loader available which can be applied to Class-IV servants nor the contention of respondents seems to be well-founded that he was employed as Garden Cooly as in Class-IV Servants there are to be found 32 designations but there is no such designation as Garden Cooly or Lorry Loader rather the relevant designations are Head MaIli, Malli, Cooly, Antimalaria Cooly. If the above contention of respondent No,1 that he was competent to change the nomenclaiure or duties of one set of such servants inter se then would it be plausible and appealing to a responsible mind that a Cook could be asked to work as Sweeper or a Black Smith as Nursing Orderly or a Bhishty as Fireman or a Painter as a Motor Driver, the answer would certainly be in negative. What one gathers from the scanning of the facts of this case is that in order to teach a lesson to the appellant, respondent No,1 by presuming to be possessed of omnipotent, powers, had been making above various unwarranted orders one after another although as a matter of fact he_lacked any such powers at his command.
9. The contention raised from the respondents' side that the appellant violated the relevant rules and regulations by approaching the higher authorities by-passing the concerned officers i,e, by violating proper channel system does not seem to be carrying much force as record reveals that whenever he attempted to approach respondent No,1 at the lowest level for getting redressed his grievance in the form of recalling the order of change of his designation from Maui to Lorry Loader, his such request always fell on deaf ears rather it resulted in the anger and out-burst of respondent No, 1 by becoming more harsh towards the appellant then being faced with such odd circumstances, the appellant was left with no other alternative but to seek indulgence of the higher authorities. Gone are the days when Class-IV servants were considered to be mere chattels and their pay was considered to be a bounty. It is the age of awakening and everybody is sufficiently apprised of his basic rights.
10. The resume of the above facts would have certainly required and warranted for appointing of an independent and unbiased Inquiry Officer for holding a discrete and detailed inquiry which should have formulated his report after having recorded full dress evidence from both sides specially when the appellant had made out right, denial of the above allegations. Respondent No,1 could not be expected to have been clothed with the double role of being a complainant and also an arbiter as nobody could be judge of his own cause. He was certainly biased and prejudiced against the appellant as the appellant had allegedly disobeyed the orders of respondent No,1' hence, the administration of legal and natural justice required that respondent No,1 should have kept his hands off rather he ought to have appointed another person as Inquiry Officer as there is old maxim that justice should not only be done but it must seem to have been done. But this golden principle seems to have been said a good-bye.
11. Strange things seen to have been happening during the so-called proceedings initiated by respondent No,1 against the appellant inasmuch as in the charge-sheet, the appellant was also called upon to show cause, as to why he remained absent from 12-10-1996 to 13-10-1996, 16-10-1996 to 17-10-1996 and 2-1-1997 to 3-1-1997 and it is to be noted that this charge-sheet was formed as late as 28-1-1998. It is crystal clear that once the respondent had made up his mind to cut the appellant to size, he examined whole of his previous record and even the absence relating to the years 1996 was made a point of charge-sheet in the year 1998. We fail to understand as to why the appellant was not proceeded against well in time for the aforesaid alleged period of absence. It is not fair to allow somebody to dig out a past burial and specially when the boss is full of anger and ire, God Almighty is most Merciful to his mankind and it is for this reason that it is said "forgvencess is divine". God also expects from his mankind to be merciful and kind hearted towards his fellow beings and the punishment is to be exacted ought to be commensurate with the gravity quantum of offence.
12. It was also much argued on behalf of the respondents that the appellant was required to be dealt with an iron hand and the only reward for his mischief could be his dismissal from service as he was a ring leader of all other Mallies and had been instigating all of them against the administration. This contention seems to be altogether misconceived. As no inquiry was initiated in the matter, thus, mere whim of the respondents that the appellant was a ring leader could not take the place of proof, as it is well-said that surmises and whims cannot take the place of proof.
13. It was also much emphasised during the course of arguments by the learned counsel for the respondents that the appellant was drug pusher/drug paddler and remained involved in narcotic case. Thus, it also amounted to misconduct. This limb of argument is straightaway to be ignored for the reason that in the charge-sheet or statement of allegation there is nothing to suggest that such allegation was levelled therein, thus, at this belated stage of arguments before this forum, the appellant could not be taken by surprise as nobody should be condemned unheard. If at all the appellant was to be punished on that count by the respondents, firstly, such allegations should have been figuring in the charge-sheet and the appellant must have been called upon to make reply to it. But this lawful course was not adopted. Nevertheless, we have gone through the copies of the judgment of the Criminal Trial Court dealing with few cases of the appellant which clearly leads to conclude that the appellant was acquitted in all such cases. The contention that he was acquitted on technical grounds or by, giving him benefit of doubt, thus, such acquittals could not be termed as to be honourable acquittals, seems to be, devoid of force as the latest trend of the pronouncement on the issue by the superior Courts of the land is that acquittal means acquittal and there is no such terms as honourable acquittal or dishonourable acquittal and once a person is acquitted by the Trial Court, such person stands shorn of stigma of any such allegation and he shall have to be deemed thereafter as to be innocent and having not committed any such crime.
There is nothing to suggest that his such acquittal was assailed before the higher forum, thus, the acquittal earned by him from the Trial Court on whatever basis the same having attained finality, and the pandora box of such allegations cannot be re-opened or be made use of against him.
14. For all the aforesaid reasons, the appeal is accepted, the impugned order being not sustainable in law is hereby struck down and the appellant is ordered to be reinstated into service as Malli from the date of his dismissal i,e, 25-2-1998 and he shall also be entitled to back benefits relating to his pay, allowances etc.
15. No order as to costs.
16. Copies of judgment to be mailed to the parties and concerned departments.