' JUSTICE (RETD.) ABDUL GHANI SHAIKH, (CHAIRMAN).---Appellant has challenged his dismissal from service through the instant appeal filed under section 4 of the Sindh Service Tribunals Act, 1973.
2. The appellant was nominated as an accused in F.I.R. No,99 of 1997 lodged by one Muhammad Zaheer at Police Station Saddar for offence under section 17(3) H.0 read with section 392/34, P.P.C.
He was proceeded against departmentally and was served with a show-cause notice that he had snatched 1100 American Dollars from one Muhammad Zahid. He was also challaned in the concerned Court to face his trial. The appellant in his reply to the show-cause notice denied the factum of his involvement in the said crime. A final show-cause notice was served upon the appellant which too was replied by him and denied the allegations. Before initiation of departmental proceedings a fact finding enquiry committee was constituted, during which complainant could not identify the appellant as one of the culprit and in this behalf complainant had sworn an affidavit also. Meanwhile, the accused was acquitted by learned VIth Additional Sessions Judge, South Karachi by judgment dated 28-8-1998. The appellant was, however, awarded major penalty of dismissal from service by respondent No,1 on the basis of appellant's involvement in the above said crime. The appellant preferred departmental appeal to respondent No,2 wherein he mentioned that he has been acquitted by the competent Court of law. Appellant's departmental appeal as well as review petition were rejected by respondents Nos.2 and 1 respectively. The appellant has not invoked the jurisdiction of this Tribunal.
3. Mr. Mughal, learned counsel for the appellant has contended that appellant has been awarded penalty of dismissal from service only on the basis of investigation of the case and the judgment of the Honourable Court acquitting the appellant was totally ignored. He stated that merely on the basis of investigation conducted by the police the appellant cannot be held guilty which amounts to giving preference to the investigation of the police to the judgment of the competent Court of law.
4. Learned Assistant Advocate-General supported the impugned orders passed by respondents.
He, however, failed to rebut the contentions raised by learned counsel for the appellant.
5. It is an admitted position that appellant was sent up to stand his trial on the basis of investigation conducted by police. The learned trial Court after examining all the relevant witnesses and considering the evidence led by the prosecution passed judgment acquitting appellant and his co-accused. There is also no denial of the fact that no regular enquiry was conducted by the department concerned except that a fact finding Enquiry. Committee was constituted in which the appellant was not allowed to participate. The report of fact finding Committee is based upon the investigation conducted by the police and thus the same cannot be termed as a regular enquiry as contemplated under Sindh Police (E&D) Rules, 1988. In a case of Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991 SCM R 209, it has been observed that:-- "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 doubt; and sometimes a prosecution fails for the patent reason that witnesses have been bought over, In all such cases it may be well held that the circumstances are as suspicious that the Government servant can no longer by 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.
' 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 an 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.
' 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 doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should be taken.
' 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."
' The above judgment was referred in a very recent case of Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCM R 57, and it was held that, the departmental authority failed to conduct any regular inquiry against the appellant, and it had, therefore, no basis to hold the appellant guilty of misconduct.
' In the instant case, the respondents have ignored the findings of the competent Court of law and passed orders dismissing appellant from service relying on investigations which had been turned down by the Court is not fair. The judgment of Honourable Court should have been given due consideration while considering the appellant's departmental appeal and review petition.
' For the aforesaid reasons, the appeal is accepted and the impugned orders are set aside. The appellant is directed to be reinstated in service w,e,f, the date of his dismissal from service. The intervening period is, however, treated as 'leave due'. Parties to bear their own costs.
' Announced in open Court.
' Given under our hands and seal of the Tribunal this 1st day of January, 2002.