MUNIR A. SHEIKH, J.--- The petitioner seeks leave to appeal against the judgment dated 1.5.1999 of the Punjab Subordinate Judiciary Service Tribunal, Lahore through which the appeal filed by the respondent-accused officer against the order dated 23.9.1996 of the Authority of his dismissal from service has been accepted and he reinstated in service.
2. The facts of the case in brief are that the respondent-accused officer when was posted as Civil Judge, Sheikhupura, was charge-sheeted under Rule 3 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, as under:- "(a) You prepared false record by making incorrect, wrong and hack dated entries about the case titled ' Maueed Malik versus Rao Akhtar Alam (Application u/S. 14 of the Arbitration Act) in the official record including application and other relevant registers of the Courts concerned at Sheikhupura;
(b) You with the connivance of your cousin namely Malik Masood Awan, Advocate, Sheikhupura, decided the above titled case on 4.4.1990 on the basis of fictitious documents, statements of fictitious persons and thereby deprived the respondents of their valuable property worth lass of rupees."
3. Tt appears that this charge-sheet was issued in pursuance of the findings of the preliminary enquiry on the complaint of Rao Akhtar Alam nd others. In the said preliminary enquiry, statements of Muhammad nwar and Ijaz A.I, Reader and Ahlmad, respectively of the respondents Court, were recorded alongwith the statements of other witnesses.
4. After issuance of this charge-sheet, Mr. Abdur .Hameed Khan hattak, learned District and Sessions Judge, Islamabad, was formally ppointed as Enquiry Officer who investigated the charges and submitted is report on 6.5.1992 to the following effect:- "As a result of above reasoning, I am of the considered view that the complainants have miserably failed to prove to the hilt the allegations levelled against the accused-officer. The report is accordingly submitted."
5. This report was placed 1)6)re-the Authorised Officer who found imself unable to agree with the findings given in this enquiry report as his iew was that on the basis of evidence produced before the Enquiry officer, charges had been duly proved. He however, directed that copy of he above findings alongwith a copy of the enquiry report should he espatched to the respondent-accused officer for his explanation within two eeks. After considering the explanation submitted by the respondentccused officer and hearing him, learned Authorised Officer through order ated 22.4.1993 did not accept his defence/explanation nor his offer to swear Oath on Holy Quran as to his innocence and recommended that major penalty of dismissal from service should he imposed on him. The record was directed to be forwarded to the Authority which was examined by the Administration Committee of the High Court. The Committee nominated another learned Judge of the Court to again hear the respondent-accused officer on behalf of the Authority and also indicate the penalty which should he imposed on the respondent. The respondent was duly heard by the learned Nominated Judge who submitted his report agreeing with the earlier report of the Authorised Officer that the charges stood proved. He, however, recommended as .Follows:- "In view of the above, I concur with the finding of the learned Authorised. Officer that the charge against the accused officer of having prepared false record and having made anti-dated entries Nith regard to case entitled as Maueed Malik, etc. Versus Rao Akhtar Alam (Application u/S. 14 of the Arbitration Act) stands proved. However, insofar as the nature of major penalty to be awarded is concerned, I tend to recommend that in view of his previous record which does not show any adverse entry, major penalty of compulsory retirement from service would meet the ends of justice and mercy both".
6. The matter was again considered by the Administration Committee which approved the said report. Through Notification dated 23.9.1996, the respondent-accused officer was dismissed from service against which appeal filed by him before the Service Tribunal has been accepted through the impugned judgment dated 1.5.1999, against which leave to appeal has been sought.
7. Learned counsel for the petitioner pointed'out that we have been the members of the Administration Committee of the High Court. Learned counsel for the respondent submitted that in this case, the respondent inspite of acceptance of his appeal by the Service Tribunal has not so far been given duty though there is no stay order in this petition and the matter is being delayed. He submitted that the respondent has no objection to the hearing of this petition by this Bench as it is not debarred to hear the same, for the question for determination is as to the legality of the judgment of the Service Tribunal which has to he decided on the touch stone of Article 212 of the Constitution.
8. We have heard learned counsel for both the parties. Learned counsel for the respondent raised preliminary objection that the judgment of the Service Tribunal is based on findings of facts and no question of law of public importance as contemplated by Article 212 of the Constitution having either been raised or involved in this case, therefore, this petition is not maintainable and is liable to be dismissed on this short ground.
9. 'Learned counsel for the petitioner frankly conceded that no appeal on a question of fact against the judgment of the Service Tribunal as per terms of Article 212 of the Constitution is maintainable but submitted that since the Service-Tribunal has exonerated the respondent by giving him benefit of doubt, therefore, as per rule laid down in the judgment reported as Kh. Saeedul Hassan, Ex- Additional District and Sessions Judge versus Governmen of the Punjab through the Chief Secretary, Lahore (1994 PLC (C.S) 1113) by this Court, a question of law, has arisen as to whether the principle of granting benefit of doubt as is available in a criminal case on criminal charges could be extended to in the departmental disciplinary proceedings..
10. -.Learned counsel for the respondent on the other hand submitted that the judgment of the Service Tribunal if examined as a whole, would reveal that it was held after appraising the evidence produced by the prosecution during the-disciplinary proceedings that the charges against the respondent- had not been proved, therefore, it was not merely on the basis of benefit of doubt that the respondent has been exonerated.
11. We have examined the judgment of the Service Tribunal with the assistance of the learned counsel for both the parties as a whole in order to ascertain as to whether the respondent was exonerated solely on the ground of benefit of doubt or a finding of fact recorded that the evidence produced by the prosecution did not prove the charges.
12. It emerges from the judgment of the Service Tribunal if read as a whole that evidence of the prosecution witnesses was discussed in detail and as a matter of fact, the Tribunal was of the view that it was a case of no evidence against 'the respondent on the charges levelled against him, for it was held that none of the witnesses produced by the prosecution during disciplinary proceedings involved the respondent rather they exonerated him. It was observed that the complainant did not own the complaint having been made ;against the respondent in respect of the charges on the basis of which disciplinary proceedings were initiated and the charge-sheet issued to the.
Respondent. It also took note of the fact that as regards fabrication of the record, Rao Akhtar Alain appeared before the respondent on the relevant date and admitted his signatures on the proceedings of the case. It was also held that the findings of the guilt against the respondent were based on the statements of the witnesses made during the preliminary enquiry before issuance of charge-sheet which could not he used as evidence against the respondent as he was not joineed in the said enquiry and granted opportunity to cross-examine them, as such, their those statements could only be used as previous statements, in order to confront them with the same and not as substantial evidence on the basis of which findings of guilt could he based, therefore, it can safely he concluded that the Servic Tribunal took the view that the findings of guilt against the respondent were based on inadmissible and no evidence, as such, the charges had no been proved. Even if the expression 'benefit of doubt' has been used at on place by the Tribunal but from the judgment of the Tribunal as a whole, I is clear that the findings are that it was a case of no evidence to prove th charges against the respondent, therefore, it is a case where findings o question of fact have been challenged which are concluded by elaborate anc careful appraisal of evidence by the Service Tribunal, therefore, the rule the judgment supra though was correctly laid down as to applicability o principle of grant of benefit of doubt in disciplinary proceedings but th same is not attracted in this case.
13. For the foregoing reasons, no question of law of publi importance'has been raised or involved in this petition, therefore, it is no maintainable and the same is hereby dismissed and leave to .
14. Learned counsel for the respondent submitted that on account o the above-mentioned charges and disciplinary proceedings, judicial power of the respondent were earlier withheld. If that be so, with the passing o the judgment of the Service Tribunal, the said action would automaticall loose its efficacy and further operation as such no express order is needed and it will not adversely affect his continuity in service for the purposes o seniority.