' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the Service Tribunal passed on 8-8-2001
2. The facts, relevant for the disposal of this appeal, briefly stated, are that the respondent was inducted in the service of Health Department as X-Ray Assistant on 11-6-1987. Various official equipments were stolen from Tehsil Headquarters Hospital, Hattian from 12-8-1994 to 22-8-1994.
The respondent, who at that time was serving as Radio Grapher in the said Hospital, was held responsible for this theft. A report was lodged about this theft at Police Station Chinari. During the investigation,'the police arrested some employees of the Health Department but later on, except respondent and one Muhammad Pervaiz, the remaining employees were released. The Police recovered one Stabilizer from the respondent. In the light of these facts the department initiated disciplinary action under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline)
Rules. 1977, (hereinafter to be referred as the Rules) against the respondent and Muhammad Pervaiz by serving them with charge sheets on 26-3-1995. The respondent denied all the allegations and maintained that he purchased the Stabilizer from Muhammad Pervaiz on the payment of Rs, 1,500 to him. At the end of the proceedings under the Rules, the District Health Officer. Muzaffarabad dismissed the respondent from service vide order dated 18-5-1995. The respondent, thereafter, availed the departmental remedy by filing appeal before the Director- General Health who dismissed his departmental appeal vide his order dated 18-54996. He, thereafter, availed the appellate jurisdiction of the Service Tribunal through an appeal. The .Learned Service Tribunal issued notices to the appellants, herein, but despite service of the notices neither appellants nor anybody else on their behalf appeared before the Service Tribunal, as such, ex parte order was, passed against them by the learned Service Tribunal on 28-1-1997. The Service Tribunal vide judgment under challenge allowed the appeal of the respondent reinstating him in the service, however, no order was passed in respect of the period he remained out of service, as it was left for the department to decide the same in accordance with the relevant law. This order of the Service Tribunal has been challenged with leave of the Court before this Court through the instant appeal.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, argued that the appeal filed by the respondent before the Service Tribunal was barred by limitation. According to him neither any request was made by the respondent in the memo. Of appeal nor he had moved any separate application seeking extension in the limitation period, therefore, the appeal before the Service Tribunal was not maintainable. He in support of his contention relied upon a case titled Shabir Ahmed v. Azad Government and another (1997 PLC (C.S.) 478). According to the learned counsel even though no objection in this regard was taken by the appellants, herein, as they had not filed any written statement in the case before the Service Tribunal even then, according to him, it was the duty of the Service Tribunal to ensure that the cause brought before it was within the limitation.
He further argued that proper notices were not issued to his clients, therefore, ex pane proceedings taken against the appellants, herein, were not justified in law and on account of this reason his clients have been condemned unheard. He further argued that when the Service Tribunal reached to this conclusion that proceedings under the Rules were not properly taken against the respondent then it was the duty of the Service Tribunal to allow the Departmental Authority to take fresh proceedings against the respondent strictly in accordance with the provisions of the Rules, as has been laid down in case titled Chairman AKLASC and 2 others v. Abdul Hamid Siddique and another (2002 PLC 163).
4. While controverting the arguments of the learned counsel for the appellants, Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondent, argued that proceedings against his client were conducted with mala fide intention by District Health Officer, Muzaffarabad who had no legal competence to take cognizance of any misconduct of his client because the induction of respondent on 11-6-1987, in the Health Department, was effected by the order of the Director Health Services and not the District Health Officer, Muzaffarabad. He further argued that a false case was concocted against his client with regard to commission of the theft by the District Health Officer, Muzaffarabad. On this excuse the District Health Officer, Muzaffarabad proceeded against him under the Rules by serving upon him a charge-sheet on 26-3-1995 and made a report for the registration of a case against him at Police Station Chinari. According to the learned counsel only a Stabilizer was recovered-from the respondent about which he claimed that the same was purchased by him from Muhammad Pervaiz. Ultimately on the basis of the proceedings conducted contrary to the spirit of the Rules, the District Health Officer, Muzaffarabad dismissed the respondent from service without any lawful jurisdiction and justification. He further argued that the learned Service Tribunal in these circumstances was justified in law in upsetting all these proceedings by reinstating the respondent in service. According to him the question of limitation despite notice of appeal of the respondent to the appellants was not raised by them before the Service Tribunal, therefore, the same cannot be raised for the first time in appeal before this Court.
In support of his contention he relied upon following case-law:--
(1) Safiullah v The Managing Director. Agricultural Development Authority, N.-W.F.P. Peshawar and 2 others (PLD 1989 Pesh. 124);
(2) Abdul Razzaq v. Superintendent of Police. Faisalabad and another (1986 PLC (CS) 222);
(3) Islamic Republic of Pakistan v. S.A.Rizvi (1992 SCMR 1'309).
5. The learned counsel for the respondent alternatively argued that the delay caused in filing appeal before the Service Tribunal was not due to any negligence rather it was due to bona fide mistake on account of the longstanding practice being followed in Azad Jammu and Kashmir.
Therefore, in the light of the dictum of this Court in case titled Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 2 others (1997 PLC (C.S.) 1047), the delay, if any, caused in lodging the appeal before the Tribunal be condoned.
6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. In this case the respondent who at the relevant time was serving in the office of Tehsil Headquarter Hospital, Hattian in its K.E.P.I. Center, was charged for the theft of certain official equipments and on the report of District Health Officer, the police also send him to face trial before the Court of competent jurisdiction under section 457. A.P.C. Read with section 14 of H.O. On 17-6-1995. The respondent and other co-accused Muhammad Pervaiz denied. Their guilt.
Later on the prosecution produced evidence, however, at the end of the trial the accused- respondent alongwith his co-accused Muhammad Pervaiz was acquitted in the case. The Law Department in the light of the judgment of the trial Court felt advised not to prefer an appeal against the acquittal order of the accused persons before the Shariat Court. The order of acquittal recorded in their favour b the trial Court on 11-9-2000 thus has attained finality. The trial Court has recorded the order of acquittal in their favour on the ground that the prosecution has miserably failed to prove its case against them, therefore, an honourable acquittal order was passed in their favour. The charge-sheet issued to the respondent by the District Health Officer, Muzaffarabad shows that the respondent was held guilty of theft of certain official equipments of Tehsil Headquarters Hospital, Hattian. When any employee is proceeded on the ground that he was found guilty of a criminal offence then in case of his acquittal he has to be reinstated in service because no other misconduct relating to his service is attributed to him. In a case reported as Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue. Punjab. Lahore (1985 SCMR 1062), the learned Judges of the Supreme Court of Pakistan also in light of the similar facts have clinched the law point by their following dictum:- "We are, therefore, of the view that the concept of honourable acquittal was unjustifiably imported by the learned Tribunal in determining the question of the validity of the appellant's removal from service. The reliance on this Court's judgment in Government of West Pakistan v. Mian Muhammad Hayat (PLD 1976 SC 202), in so far as it related only to the question of pay during period of suspension, was inapt and irrelevant. For the foregoing reasons, this appeal is allowed with costs and the impugned order of appellant's removal from service dated 19-4-1977, shall be set aside, with the result that the appellant shall be re-instated in service with effect from the date the said order took effect."
7. The same view was reiterated by the Punjab Service Tribunal in case titled Abdul Razzaq v.
Superintendent of Police, Faisalabad and another (1986 PLC (C.S.) 222). Now to this extent the judgment of the Service Tribunal is suffering from no infirmity. Raja Muhammad Hanif Khan, the learned counsel for the appellants, firstly argued that the appeal filed by the respondent was barred by limitation, Therefore, on account of this legal defect the Service Tribunal was not justified in law to enter into the merits of the case and allow the respondent relief requested by him through his appeal. In support of this objection, the learned counsel relied upon the judgment of this Court in a case titled Shabir Ahmed v. Azad Government and another (1997 PLC (C.S.) 478), wherein after discussing for and against the authorities on this subject it was laid down as under:- "After giving deep consideration to the matter, we are of the view that there is hardly any justification for approving the view that a civil servant has two options either to file appeal within 120 days or to wait indefinitely till the disposal of his appeal, review, representation etc., and thereafter prefer an appeal to the Service Tribunal. We are of the opinion that he is bound to prefer an appeal to the Service Tribunal within 120 days, reckoned from the date of filing of an appeal etc., to the departmental authority for the following reasons:--
(a) The provisions contained in section 4(1) of the Service Tribunals Act indicate that the intention of Legislature is to finalise the matter pertaining to the disputes of civil servant as early as possible, because if the decision is belated, the other incumbents in civil service who might have been promoted by that time to higher grades might be adversely affected; many other situations can arise; for instance, new appointments by initial recruitment, promotion or transfer may take place in the concerned department; even some of the incumbents may have retired by the time the departmental remedy is finalised. This would result in hardships not only to the other civil servants serving in the department but may also adversely affect the civil servants who might have already retired.
(b) If a civil servant prefers an appeal within 120 days as stipulated ' under proviso (a) to section 4(1) of the Service Tribunals Act and the matter is decided by the Service Tribunal and thereafter some other order is passed on his appeal, representation, etc., by the departmental authority, that would create an anomalous situation. Because there is no stipulation in law that the order passed by the departmental authority would not prevail against the order of the Service Tribunal.
(c) Had the Legislature intended that a civil servant would be at liberty to prefer an appeal to the Service Tribunal even after an order on his appeal, representation or review by the departmental authority, it would have said so in the proviso to section 4(1) of the Service Tribunals Act that an appeal could be preferred to Service Tribunal after 90 days or for that matter 120 days or after the final decision of his appeal, representation, review etc., by the departmental authority but there is no such stipulation in the relevant provision.
(d) The phrase appearing in section 4(1) of the Service Tribunals Act. ' whether original or appellate made by the departmental authority" cannot be interpreted to mean that an appeal against an order of a departmental authority can be preferred to the Service Tribunal even after the final decision of the departmental appeal, representation etc., because expression ' appeal' in the aforesaid phrase means that if a civil servant aggrieved by an original order prefers an appeal, review, etc., to such authority and the departmental authority accepts his appeal, review or representation etc., the other civil servant who may be aggrieved by such appellate order, is competent to prefer an appeal to the Service Tribunal after availing of the departmental remedy, if any. Irrespective of the fact that the order was not an original order but an appellate order. Thus, the aforesaid expression in the main part of section 4(1) means that a civil servant can prefer an appeal against a final order whether 'original or appellate' and not that a civil servant who has preferred an appeal, review, representation under proviso (a) to section 4(1) of the Service Tribunals Act should wait for final disposal of his appeal etc.
(e) We have come across the cases where an aggrieved civil servant came up with appeals as many as ten years after filing his appeal, review etc., to the departmental authority contending that as the decision by the departmental authority was belated they were legally within their rights to file appeals to the Service. Tribunal. It cannot be conceived that the Legislature intended that an aggrieved civil servant may sleep over the matter for such a long time in preferring an appeal to the Service Tribunal, despite the fact that he could have preferred an appeal to the Service Tribunal under proviso (a) to section 4(1) of the Service Tribunals Act. We may venture to add that in some cases civil servants purposely sleep over the matter with an ulterior motive to get a favourable decision by the departmental authority after a political change in the State. This gives rise to many complications and adversely affects the smooth working of the concerned department.
8. However, in the light of the aforesaid dictum an objection was raised before this Court in a case titled Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 2 others (1997 PLC (C.S.) 1047), that the appeal filed by the appellant before the Service Tribunal was barred by limitation. It was further contended in this case that neither any ground seeking extension in limitation was taken in the memo. Of appeal nor any request to this effect was made through a separate application. Therefore, his appeal without deciding the merits of the case was liable to be dismissed on this sole ground. These objections were overruled by this Court in the light of, the long-standing practice being followed in Azad Jammu and Kashmir and further that when Shabir Ahmad's case was decided by this Court at that time Muhammad Hussain's appeal was sub judice before the Service Tribunal. He, therefore. Could not follow the judgment given by this Court in Shabir Ahmad's case and file any application for the condonation of delay before the Service Tribunal. In this case the application seeking condonation of delay in preferring appeal before the Service Tribunal was moved by Muhammad Hussain, appellant, before this Court and the same was condoned by the Court. It was laid down that the dictum laid down by this Court in Shabir Ahmad's case shall be followed in future and this principle shall not be applicable to the cases which had been filed before the Service Tribunal in the light of the long-standing practice according to which the aggrieved civil servant used to file their service appeals before the Service Tribunal either within 120 days or after the decision of their departmental appeal, review or representation within next 30 days. The present appeal was filed by the respondent before the Service Tribunal on 17-6-1996, much before the decision of this Court in Shabir Ahmad's case. Therefore, the principle laid down in that authority shall not apply in the present case as has been held by this Court in Ch. Muhammad Hussain's case. The objection of the learned counsel for the appellants raised by him in the light of the dictum of this Court in Shabir Ahmad's case is without forge. The second objection of the learned counsel for the appellants that due service was not effected upon the appellants by the Service Tribunal is also without any force.
The appeal filed by the respondent was admitted for regular hearing by the Service Tribunal vide its order dated 10-9-1996 and on the same date notices were issued to the appellants. The notices whereby they were asked to appear before the Service Tribunal on 28-12-1996, were served upon them on 7-12-1996. The Head Clerk of the concerned Department in response to these notices appeared on behalf of the appellants before the Service Tribunal on the aforesaid date and sought an adjournment for filing written statement. The Service Tribunal allowed the request and fixed the appeal for written-statement of the appellants, herein, on 18-1-1997. On this date nobody appeared on behalf of the appellants, therefore, the learned Service Tribunal had no alternative but to proceed ex parte against them. We agree with the learned Service Tribunal that the Department even failed to prosecute the case against the respondent before the Criminal Court of competent jurisdiction. As almost all the witnesses produced before the Court resiled from their statements recorded during the investigation by the Police under section 161 of Cr.P.C. In these circumstances we are unable to agree with the learned counsel for the appellants that due service was not effected upon his clients as such they failed to defend their orders whereby the respondent was dismissed from service. The third objection raised by the learned counsel for the appellants that the Service Tribunal should have given appellants fresh chance to proceed against the respondent as previous proceedings taken by them against him were not strictly in conformity with the provisions contained in the Rules, is also without substance, firstly on the ground that the disciplinary action taken against the respondent was based on criminal offence. When any employee is proceeded against the ground that he was found guilty of a criminal offence then in case of his acquittal he has to be reinstated in service because no other misconduct is attributed to him, as has been observed by us in para. Five of this judgment wherein we have upheld the view of the apex Court of Pakistan and the Service Tribunal of Punjab. The second reason is that proper proceedings under the Rules were not taken against the respondent as right from very beginning he was issued joint charge-sheet alongwith Muhammad Pervaiz, by appellant No,2, in which he blamed then that they have committed theft and taken away the official equipments mentioned by him in the F.I.R. No supporting document. As rightly pointed out by the Service Tribunal, was attached by him with the charge-sheet. The respondent had categorically stated that he had purchased the Stablizer from co-accused, Muhammad Pervaiz. After making payment of Rs,1,500 to him. There is no mention that the Stabilizer so recovered from him was the property of the Government nor any evidence, oral or documentary, was made available by appellant No,2 to the respondent. Mere accusation is not sufficient for proceedings under the provisions of the Rules rather the accusation must be supported by some material which justifies the accusation so made. In the present case the whole proceedings were illegally conducted and accused stood acquitted in the criminal case, therefore, no useful purpose shall be fulfilled if he is again asked to face departmental inquiry.
' The upshot of the above discussion is that, finding no force in this appeal, the same stands dismissed with no orders as to costs.