' MUHAMMAD RAZA KHAN (MEMBER)---The appellant was working as Constable in the Railway Police since 13-11-1986. He was admittedly posted at Railway Station Kotri on 23-2-1994 and he was on duty from 8-00 a.m. Till 8-00 p.m. On the same day a Goods Train "Up-Chaman" that had passed the Railway Station, Kotri (when he was on duty there) was reported to have been subjected to a theft at Railway Station Kot Laloo and consequently a case under section 409/411/34, P.P.C. Read with section 14 of Hadood Ordinance and section 5(2) of Prevention Act, was registered at Railway Station, Padidan wherein, at a stage, the appellant was also associated. The case was finally under trial before the learned Special Judge Anti-Corruption (Central), when the appellant was subjected to disciplinary proceedings and consequently vide an order, dated 131-1996 he was dismissed from service. The departmental appeal, dated 12-2-1996 was also rejected on 9-9-1996. Hence this appeal.
2. In response to a notice for regular hearing, the respondents put in appearance. Written objections were filed and we have listened to the arguments.
3. The first objection raised by the respondents is with regard to the limitation and that is taken up for adjudication in the beginning. The departmental appeal, dated 12-2-1996 was within thirty days of the original order, dated 13-1-1996. The departmental appeal was rejected on 9-9-1996 and instead of having filed appeal within 30 days whereof, the appellant filed a review petition which was also rejected on 29-10-1996 and the present appeal was filed on 19-11-1996 and therefore, the learned counsel argues that since there was no provision for the filing of second appeal or review petition and so the time had started running from 9-9-1996 and the appeal filed beyond thirty days was barred by time. In this view of the matter, the appeal is certainly barred by about 40 days but application for condonation of delay has been filed supported by affidavit which has not been rebutted by a counter-affidavit. The delay was based on a genuine misconception about the authority vested in the superior officers to -review the cases and being a discipline force the appellant preferred to exhaust the ultimate remedy prior to approaching the Tribunal with a legal course. Hence the delay was based on bona fide misconception, had by acceptance of the application under section 5 of the Limitation Act, the delay is hereby condoned.
4. On merits, the appellant alongwith some other officials was sent for trial before the learned Special Judge, Anti-Corruption, Hyderabad and by judgment, dated 13-3-1996 the appellant has been acquitted under section 249-A of the Cr.P.C. It was held by the said judgment that no evidence was forthcoming against the accused and others connecting them with the commission of offence and the witnesses that were examined did not support the cause of the prosecution, rather they denied the facts and were declared hostile but without any useful result. The prosecution was held to have badly failed in proving the case, and thus, the accused, including the appellant, were acquitted. The acquittal under section 249-A of the Cr.P.C. Amounts to honourable acquittal because thereby the Court holds that there was no evidence against an accused-and, therefore, further proceedings in the case would be fruitless. Hence acquittal under this section is not based on any doubt but it is based on the failure of the prosecution to prove the case. When a civil servant is acquitted of a criminal case honourably, he is entitled to be reinstated to the position held by him. In the instant case, prior to the pronouncement of judgment by the learned Special Judge on 13-3-1996, the DSRP passed the orders of dismissal of the appellant from service on 13-1-1996 despite the fact that firstly no evidence could be produced by the prosecution till then before the learned Court and secondly a detailed inquiry was held against the accused appellant and the Inquiry Officer had already exonerated him for the lack of evidence. There was neither any substantial evidence nor any direct evidence of eye-witnesses of the occurrence or recovery of any of the case property. In such a case of no evidence, there was no justification for the DSRP to have imposed major penalty of dismissal from service on the appellant.
5. There is another argument on behalf of the appellant that the same person who conducted inquiry had imposed the penalty. The rules do not permit even the imposition of penalty by the authorised officer in case of the existence of an authority, what to speak of an Inquiry Officer imposing the extreme penalty. The learned counsel for the respondents, assisted by the representative thereof referred us to paragraph 7 of Rule 16.24 of the Police Rules applicable to the Railway Police to state that the DSRP was competent to pass the final order against the appellant being a Constable and he also argued that the said DSRP was competent to impose the penalty even if he had acted as Inquiry Officer. The said Rule reads as under:-- "(vii) The Inquiry Officer shall then proceed to pass order of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary power."
' This provision was taken by the respondents as a refuge to state that the Inquiry Officer was competent to pass the orders. However, when this provision is considered in the light of the E&D Rules, 1973 there appears to be a conflict which can be resolved by the interpretation' that the Inquiry Officer in his capacity as the Authorised Officer has the power to acquit an accused or to impose a punishment which has to be a minor penalty but in case he is of the opinion that the nature of offence was such that the major penalty was required to be imposed, he shall forward the case to the authority for appropriate order. The Authorised Officer and the Inquiry Officer cannot at all be allowed under any law in a civilised country to impose the major penalty on a civil servant in whose case he has himself conducted the inquiry proceedings. In the instant case, not a single piece of evidence was available against the accused. He was exonerated by the previous Inquiry Officer and he had been acquitted by the learned Court thereafter. Even the second Inquiry Officer has not stated any reasons for the imposition of penalty and/or the evidence that has connected the accused/appellant with the commission of offence. In such a situation, we are left with no alternative but to hold that the main original order was based on no evidence and the appellate order of rejection of departmental appeal was passed without the proper application of mind. Thus, we accept the appeal, set aside the impugned orders and direct that the appellant may be reinstated into service with consequential benefits.