PLJ 2012 Tr.C. (Services) 89
[Federal Service Tribunal, Islamabad]
Present: Moazzam Hayat and Mushtaq Malik, Members
KARAMAT ALI, EX-DRIVER, WAPDA (POWER) TARBELA TEHSIL AND DISTRICT SWABI--Appellant
versus
WAPDA through its Chairman, WAPDA House, Lahore and 2 others--Respondents
Appeal No. 362(P)(CS) of 2011, decided on 9.2.2012.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 39--Civil servant--Penalty of dismissal from service--Order was challenged in FST by filing appeal--Direction to hold denovo proceedings and to associate civil servant in inquiry--Charge of theft of generator winding bars from store--Most important witness was scrap dealer from whose house stolen material was recovered--His statement was not recorded--Civil servant admitted his guilty in police custody--Validity--Any confession made by a person while in police custody would not be relevant--Art. 39 of Q.S.O. might be applicable in criminal cases--Such principle could apply even to disciplinary cases especially when there was no other evidence against civil servant--Statement of scrap dealer was not recorded--Hence proceedings against civil servant were not conducted in lawful manner--Civil servant was reinstated into service. [Pp. 90 & 91] A, B, C & D
Mr. Imran Fazal, Advocate for Appellant.
Mr. Tajammal Hussain, Advocate for Respondents.
Date of hearing: 9.2.2012.
Judgment
Moazzam Hayat, Member.--Appellant Karamat Ali was a Driver in the Water and Power Development Authority (WAPDA). He was proceeded against under the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 and was awarded the penalty of dismissal from service and recovery of Rs. 208,437/- vide order dated 12.08.2011. Earlier he had been dismissed from service vide order dated 26.01.2010. This order was challenged by him in this Tribunal by filing Appeal No. 133(P)CS/2010. It was allowed on 14.12.2010. A direction was issued to the respondents to hold de-novo proceedings and to associate the appellant in the inquiry. It is stated that the appellant was associated in the inquiry. A charge sheet was issued to him on 30.03.2011. The inquiry committee comprised of Syed Bashir Ahmed, Resident Engineer (Electrical), Mr. Mahmood-ul-Hassan Chishti, Additional Deputy Chief Auditor, (HQPAS) and Hafiz Muhammad Amjad Saleem Additional Director. The inquiry report was submitted on 12.07.2011, on the basis of which a show-cause notice was issued to the appellant on 15.07.2011 to which he submitted his reply on 28.07.2011. He was heard in person on 30.07.2011.
2. The respondents have resisted the appeal. It is stated by them that under the direction of the Federal Service Tribunal a regular inquiry was held against the appellant in which he was associated. It is also stated that during his arrest by the Police the appellant had made a voluntary statement admitting the charge levelled against him.
3. We have heard the learned counsel for the parties and have also perused the record.
4. The charge against the appellant and others including Saqib Khan Driver, Muhammad Yousaf and Fazal-e-Mola was of theft of generator winding bars from Dhall Store, Power Station, Tarbela in April, 2009. We find from the record that the most important witness was the scrap dealer from whose house the stolen material was recovered. Surprisingly his statement was not recorded. Thus the most important evidence that could link the appellant with the charge was not recorded.
5. It is vehemently argued on behalf of the respondents that while in Police custody the appellant had admitted his guilt. In this regard we shall refer to Article 39 of the Qanoon-e-Shahadat Order, 1984 which clearly says that any confession made by a person while in Police custody shall not be relevant. This Article may be applicable in criminal cases. But the principle, contained in it, can be applied even to disciplinary cases especially when there is no other evidence against the accused civil servant.
6. It is submitted by the appellant that M/s. Saqib Khan and Muhammad Yousaf have been reinstated by the Federal Service Tribunal vide order dated 06.07.2011 passed on M.P. No. 1002/2011 in Appeal No. 142(P)CS/2010 filed by Saqib Khan and M.P. No. 1050/2011 in Appeal No. 219(P)CS/2010 filed by Muhammad Yousaf. The Bench of the Tribunal comprised of Mr. Ayaz H. Bokhari and Mrs. Neelam S. Ali, Members. The Bench had passed an Order for the reason that the inquiry against these employees had not been completed within a period of four months fixed by the Tribunal in its judgment dated 20.10.2010. Very recently the apex Court has been pleased to remand the cases of Frontier Constabulary employees against whom the disciplinary proceedings had not been completed in four months fixed by the Tribunal. They were also reinstated without any condition by a Bench headed by Mr. Ayaz H. Bokhari, Member. The same principle of law shall be applicable to the present case. The impugned order cannot be set aside permanently for this reason alone that the inquiry proceedings had not been completed by the respondents against the appellant within the period of four months fixed by the Tribunal. It may be mentioned that time was not made the essence of the judgment dated 14.12.2010 since the direction was to complete proceedings preferably within a period of four months. It was not ordered that the proceedings shall have to be completed within the specified period at all costs and further extension shall not be given impliedly or explicitly. The word preferably means "desirable", "suitable'" or "advisable". So while fixing the period of four months the Tribunal had desired the completion of proceedings in that period. The observance of the time limit was not that mandatory that it could not be extended even on valid reason. The emphasis is on "valid reasons". If the department could not complete the proceedings in the time limit for valid reasons, the proceedings completed beyond the time limit shall not become illegal. We shall not grant the appeals on the ground alone that proceedings were not completed within the time period fixed by the Tribunal.
8. However, we have held above that the statement of scrap dealer was not recorded. Hence the proceedings against the appellant were not conducted in a lawful manner.
9. The result is that the impugned order is set aside. The appellant is reinstated into service. The respondents may hold de-novo proceedings against him. The inquiry committee shall also record the statement of scrap dealer and then give its findings. The de-novo proceedings may be completed, preferably within a period of four months from the date a copy of the judgment is received in the office of the respondents. The payment of back benefits shall depend on the outcome of fresh proceedings.
10. There shall be no order as to costs.
11. Parties shall be informed accordingly.
(R.A.) Appeal accepted
[Federal Service Tribunal, Islamabad]
Present: Moazzam Hayat and Mushtaq Malik, Members
KARAMAT ALI, EX-DRIVER, WAPDA (POWER) TARBELA TEHSIL AND DISTRICT SWABI--Appellant
versus
WAPDA through its Chairman, WAPDA House, Lahore and 2 others--Respondents
Appeal No. 362(P)(CS) of 2011, decided on 9.2.2012.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 39--Civil servant--Penalty of dismissal from service--Order was challenged in FST by filing appeal--Direction to hold denovo proceedings and to associate civil servant in inquiry--Charge of theft of generator winding bars from store--Most important witness was scrap dealer from whose house stolen material was recovered--His statement was not recorded--Civil servant admitted his guilty in police custody--Validity--Any confession made by a person while in police custody would not be relevant--Art. 39 of Q.S.O. might be applicable in criminal cases--Such principle could apply even to disciplinary cases especially when there was no other evidence against civil servant--Statement of scrap dealer was not recorded--Hence proceedings against civil servant were not conducted in lawful manner--Civil servant was reinstated into service. [Pp. 90 & 91] A, B, C & D
Mr. Imran Fazal, Advocate for Appellant.
Mr. Tajammal Hussain, Advocate for Respondents.
Date of hearing: 9.2.2012.
Judgment
Moazzam Hayat, Member.--Appellant Karamat Ali was a Driver in the Water and Power Development Authority (WAPDA). He was proceeded against under the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 and was awarded the penalty of dismissal from service and recovery of Rs. 208,437/- vide order dated 12.08.2011. Earlier he had been dismissed from service vide order dated 26.01.2010. This order was challenged by him in this Tribunal by filing Appeal No. 133(P)CS/2010. It was allowed on 14.12.2010. A direction was issued to the respondents to hold de-novo proceedings and to associate the appellant in the inquiry. It is stated that the appellant was associated in the inquiry. A charge sheet was issued to him on 30.03.2011. The inquiry committee comprised of Syed Bashir Ahmed, Resident Engineer (Electrical), Mr. Mahmood-ul-Hassan Chishti, Additional Deputy Chief Auditor, (HQPAS) and Hafiz Muhammad Amjad Saleem Additional Director. The inquiry report was submitted on 12.07.2011, on the basis of which a show-cause notice was issued to the appellant on 15.07.2011 to which he submitted his reply on 28.07.2011. He was heard in person on 30.07.2011.
2. The respondents have resisted the appeal. It is stated by them that under the direction of the Federal Service Tribunal a regular inquiry was held against the appellant in which he was associated. It is also stated that during his arrest by the Police the appellant had made a voluntary statement admitting the charge levelled against him.
3. We have heard the learned counsel for the parties and have also perused the record.
4. The charge against the appellant and others including Saqib Khan Driver, Muhammad Yousaf and Fazal-e-Mola was of theft of generator winding bars from Dhall Store, Power Station, Tarbela in April, 2009. We find from the record that the most important witness was the scrap dealer from whose house the stolen material was recovered. Surprisingly his statement was not recorded. Thus the most important evidence that could link the appellant with the charge was not recorded.
5. It is vehemently argued on behalf of the respondents that while in Police custody the appellant had admitted his guilt. In this regard we shall refer to Article 39 of the Qanoon-e-Shahadat Order, 1984 which clearly says that any confession made by a person while in Police custody shall not be relevant. This Article may be applicable in criminal cases. But the principle, contained in it, can be applied even to disciplinary cases especially when there is no other evidence against the accused civil servant.
6. It is submitted by the appellant that M/s. Saqib Khan and Muhammad Yousaf have been reinstated by the Federal Service Tribunal vide order dated 06.07.2011 passed on M.P. No. 1002/2011 in Appeal No. 142(P)CS/2010 filed by Saqib Khan and M.P. No. 1050/2011 in Appeal No. 219(P)CS/2010 filed by Muhammad Yousaf. The Bench of the Tribunal comprised of Mr. Ayaz H. Bokhari and Mrs. Neelam S. Ali, Members. The Bench had passed an Order for the reason that the inquiry against these employees had not been completed within a period of four months fixed by the Tribunal in its judgment dated 20.10.2010. Very recently the apex Court has been pleased to remand the cases of Frontier Constabulary employees against whom the disciplinary proceedings had not been completed in four months fixed by the Tribunal. They were also reinstated without any condition by a Bench headed by Mr. Ayaz H. Bokhari, Member. The same principle of law shall be applicable to the present case. The impugned order cannot be set aside permanently for this reason alone that the inquiry proceedings had not been completed by the respondents against the appellant within the period of four months fixed by the Tribunal. It may be mentioned that time was not made the essence of the judgment dated 14.12.2010 since the direction was to complete proceedings preferably within a period of four months. It was not ordered that the proceedings shall have to be completed within the specified period at all costs and further extension shall not be given impliedly or explicitly. The word preferably means "desirable", "suitable'" or "advisable". So while fixing the period of four months the Tribunal had desired the completion of proceedings in that period. The observance of the time limit was not that mandatory that it could not be extended even on valid reason. The emphasis is on "valid reasons". If the department could not complete the proceedings in the time limit for valid reasons, the proceedings completed beyond the time limit shall not become illegal. We shall not grant the appeals on the ground alone that proceedings were not completed within the time period fixed by the Tribunal.
8. However, we have held above that the statement of scrap dealer was not recorded. Hence the proceedings against the appellant were not conducted in a lawful manner.
9. The result is that the impugned order is set aside. The appellant is reinstated into service. The respondents may hold de-novo proceedings against him. The inquiry committee shall also record the statement of scrap dealer and then give its findings. The de-novo proceedings may be completed, preferably within a period of four months from the date a copy of the judgment is received in the office of the respondents. The payment of back benefits shall depend on the outcome of fresh proceedings.
10. There shall be no order as to costs.
11. Parties shall be informed accordingly.
(R.A.) Appeal accepted
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