Acquittal from criminal case dose not mean that the end of departmental punishment .Departmental action after acquittal in a criminal case | reinstatement in service after acquittal.

Departmental action after acquittal in a criminal case

Acquittal from criminal case dose not mean that the end of departmental punishment .

سپریم کورٹ آف پاکستان نے ممتاز الدین شیخ کی اپیل کی چیلنجنگ کی درخواست پر فیصلہ سنایا، جو فیڈرل سروس ٹربیونل کی جانب سے ان کی اپیل کی خارجگی کے خلاف تھی۔ ممتاز الدین شیخ، جو کہ کلرک کے عہدے سے برطرف ہو چکے تھے، نے اپنی برطرفی کی منسوخی اور دوبارہ بحالی کی درخواست کی تھی، کیونکہ وہ ایک فوجداری مقدمے میں بری ہو چکے تھے۔ سپریم کورٹ نے اس درخواست کو مسترد کرتے ہوئے کہا کہ فوجداری مقدمے میں بری ہونے کا مطلب یہ نہیں ہے کہ محکمانہ کاروائیوں کی سزائیں بھی ختم ہو جاتی ہیں، کیونکہ فوجداری اور محکمانہ کاروائیاں الگ الگ عمل ہیں اور ان کا آپس میں کوئی تعلق نہیں ہوتا۔ عدالت نے یہ بھی کہا کہ ممتاز الدین شیخ کی اپیل تاخیر کا شکار ہو چکی تھی اور فیڈرل سروس ٹربیونل کا فیصلہ درست تھا، اس لیے درخواست مسترد کر دی گئی۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

Mr. Justice Syed Hasan Azhar Rizvi

Mr. Justice Aqeel Ahmed Abbasi

Civil Petition No.516-K of 2022

[Against the Judgment dated 09.02.2022 passed by Federal Service Tribunal

Islamabad (Karachi Bench) in Appeal No.75(K)(CS)2020]

Mumtaz Uddin Shaikh

…Petitioner(s)

Versus

Chief Post Master GPO Hyderabad &

Others.

…Respondent(s)

For the Petitioner(s)

: In-person

For Respondent No. 1-2 : Asif Sahito,

Assistant Superintendent

GPO Hyderabad

Date of Hearing

: 19.07.2024.

JUDGMENT

Syed Hasan Azhar Rizvi, J.- Through this petition,

the petitioner has assailed the Judgment dated 09.02.2022 (“the

impugned judgment”), passed by Federal Service Tribunal

Islamabad (Karachi Bench)

(“FST”)

whereby

Appeal

No.75(K)(CS)2020 filed by him has been dismissed.

Facts in brief are that petitioner was appointed as a

Clerk on 01.01.1990 in the General Post Office (GPO), Hyderabad.

He was suspended vide order dated 08.09.2006 on the grounds of

inefficiency, misconduct, and corruption. A show cause notice

dated 27.02.2007 pertaining to misappropriation of Rs. 565,730/-

was served on the petitioner, in response to which, petitioner

Civil Petition No.516-K of 2022 -2-

vehemently denied the allegations. Being dissatisfied with the

explanation, an inquiry was ordered to be conducted wherein the

petitioner was directed to appear in person vide order dated

14.03.2007. Based on inquiry report, major penalty of dismissal

from service under Removal from Government Service Ordinance

(RSO), 2000 on the charges of misappropriation of government

money in military pension payment of Rs.820,876/- was imposed

upon him vide order dated 20.03.2007. Petitioner challenged this

order by preferring Departmental Appeal on 02.04.2007, which

was rejected vide order dated 10.08.2007. Being aggrieved, the

petitioner approached FST by filing Service Appeal No. 1372(R)(CS)

of 2009 which was dismissed in limine as hopelessly being barred

by time vide judgment dated 16.06.2010.

After dismissal from service, the department referred the

matter to the FIA, Hyderabad for lodging of FIR against the

petitioner which was accordingly registered (FIR No. 08 of 2012)

under sections 409, 468, and 471 PPC read with Section 5(2) of the

Prevention of Corruption Act, 1947. The criminal case pursuant to

said FIR was tried by the Special Court of Anti-Corruption

(Central), Hyderabad and after a full-fledged trial the petitioner was

acquitted of the charges vide judgment dated 16.12.2019.

Upon acquittal, the petitioner preferred three departmental

appeals on 23.01.2020, 21.02.2020 and 03.03.2020 respectively,

for reinstatement into service with all back benefits, which

remained un-responded, therefore, petitioner approached Federal

Service Tribunal (Karachi Bench) by filing Appeal No.75(K)(CS)

2020, which was also dismissed vide impugned judgment. Hence,

this petition.

Civil Petition No.516-K of 2022 -3-

The petitioner submits that since he has been

acquitted of all the charges levelled against him in the criminal

case and that the acquittal serves as a complete exoneration

clearing him of all charges of misconduct and misappropriation

therefore he may be reinstated in service.

We have heard the petitioner and perused the material

available on record.

The argument of the petitioner that he has been

acquitted from the criminal case therefore he should be reinstated

into service is not tenable in eye of law. The petitioner’s acquittal

does not automatically eliminate any departmental liability, as

criminal and departmental proceedings are distinct and operate

independently as ruled in the case of Dawood Ali v. Superintendent

of Police and others1, wherein it was held that:-

“The departmental penalty was imposed on the petitioner,

not on account of criminal proceedings but, as a

consequence of departmental inquiry having been

conducted in which the petitioner was found guilty of the

charge. It is now well-settled that the departmental and

criminal proceedings can be taken simultaneously and

independently of each other.”

Criminal proceedings address allegations of criminal

conduct and determine legal culpability, while departmental

proceedings are connected with matters of service discipline and

conduct. Thus, the results of a criminal case do not necessarily

impact issues related to departmental responsibilities and

discipline.

This controversy has been resolved by this Court in

various cases, reference may be made to the case of Khaliq Dad v.

Inspector General of Police and others,2 wherein it was held that:-

“4. After having gone through the entire record and

perusing the judgment impugned we are not at all

1 [2005 SCMR 948]

2 [2004 SCMR 192]

Civil Petition No.516-K of 2022 -4-

impressed by the above mentioned contentions which

appear to be meritless and fallacious. The initiation of

disciplinary action and criminal proceedings are not interdependent which could have been initiated simultaneously

and brought to their logical end separately with different

conclusions. The acquittal in a criminal case would have

no bearing on disciplinary action which was initiated on

account of inefficiency and grave misconduct by invoking

the provisions as contemplated in rule 3(a) and (b) of the

Punjab Police (E&D) Rules, 1975. The learned Advocate

Supreme Court when asked as to whether the petitioner

could have been absolved from charges of "misconduct

and inefficiency" as a result of acquittal in the criminal

case, no satisfactory answer could be given. This is wellentrenched legal position that criminal proceeding does

not constitute a bar for initiation of disciplinary

proceedings under the relevant (E&D) Rules...”

(Emphasis supplied)

Moreover, in the case of Muhammad Ashraf Khan v. Director

Food, Punjab Lahore and another,3 it was ruled that:-

"5. ... It is well-settled by now that "objects of prosecution

on criminal charge and departmental proceedings are

entirely different; one relates to the enforcement of

criminal liability and the other is concerned with service

discipline. Acquittal on criminal charge had no bearing on

disciplinary proceedings. This Court in the case of,

Inspector-General of Police Punjab, Lahore and others v.

Muhammad Tariq 2001 SCMR 789 has held that acquittal

in criminal case is no bar for imposing any penalty in

departmental proceedings under Government Servants

(Efficiency and Discipline) Rules, 1973."

Above view is also fortified by this court in various

decisions reference may be made to the case of Dr. Sohail Hassan

Khan v. Director General (Research), Livestock and Dairy

Development Department, Punjab, Lahore and others,4 wherein it

has been ruled that:-

"3. It is by now well settled that a civil servant cannot

escape departmental proceedings or consequences thereof

on account of his acquittal/exoneration on a criminal

charge arising out of the same impugned transaction;

these two are entirely different jurisdictions with different

standards of proof as well as procedures; criminal

prosecution requires strict proof through a narrowly

jacketed procedure and, thus, State's failure on criminal

plane does not provide shield of double jeopardy to a

delinquent officer..."

3 [2004 SCMR 1472]

4 [2020 SCMR 1708]

Civil Petition No.516-K of 2022 -5-

Similarly, this view has been reaffirmed in the case of

The District Police Officer, Mianwali and others v. Amir Abdul Majid,5

wherein it has been held that:-

“3. It is by now well settled that a civil servant facing

expulsive proceedings on departmental side on account of

his indictment on criminal charge may not save his job in

the event of acquittal as the department still may have

reasons/material, to conscionably consider his stay in the

service as inexpedient; there are additional reasons to

disregard his acquittal inasmuch as criminal dispensation

of justice

involving corporeal consequences,

comparatively, requires an higher standard of proof so as

to drive home the charge beyond doubt, an exercise to be

routed through a procedure stringently adversarial,

therefore, factuality of the charge notwithstanding,

procedural loopholes or absence of evidence, sufficient

enough to sustain the charge, at times occasion in failures

essentially to maintain safe administration of criminal

justice out of abundant caution. Departmental

jurisdiction, on the other hand, can assess the suitability

of a civil servant, confronted with a charge through a fact

finding method, somewhat inquisitorial in nature without

heavier procedural riders, otherwise required in criminal

jurisdiction to eliminate any potential risk of error,

therefore, the Tribunal has undoubtedly misdirected itself

in reinstating the respondent, considering his acquittal as

the sole criterion in isolation to the totality of

circumstances whereunder he had succeeded to vindicate

his position. Reference may be made to the cases of Dr.

Sohail Hassan Khan and others v. Director General

(Research), Livestock and Dairy Development Department,

Punjab, Lahore and others (2020 SCMR 1708), Liaqat Ali

v. Government of N.W.F.P. through Secretary Health,

Peshawar and others (2011 PLC(C.S.) 990), Chairman

Agricultural Development Bank of Pakistan and another v.

Mumtaz Khan (PLD 2010 SC 695), Government of

Pakistan through Secretary Ministry of Finance and others

v. Asif Ali and others (2007 PLC (C.S.)

271),Superintendent of Police, D.I. Khan and others v.

Ihsanullah (2007 SCMR 562), Sami Ullah v. InspectorGeneral of Police and others (2006 SCMR 554), Ractor

Comsats v. Ghulam Umar Kazi (2006 SCMR 1894),

Executive Engineer and othersv. Zahid Sharif (2005 SCMR

824), Khaliq Dad v. Inspector-General of Police and

2others (2004 SCMR 192), Arif Ghafoor v. Managing

Director, H.M.C., Texila and others (PLD 2002 SC 13), Mir

Nawaz Khan v. Federal Government through Secretary,

Ministry of Finance, Islamabad and 2 others (1996 SCMR

315), Talib Hussain v. Anar Gul Khan and 4 others (1993

SCMR 2177), Mud Izharul Ahsan Qureshi v. Messrs

P.I.A.C. (1994 SCMR 1608), Muhammad Nazir v. The

Superintendent of Police, Toba Tek Singh and others

(1990 SCMR 1556)Muhammad Tufail v. Assistant

Commissioner/Collector (1989 SCMR 316),Muhammad

Saleem v. Superintendent of Police, Sialkot and another

(PLD 1992 SC369), Muhammad Ayub v. The Chairman,

Electricity Board, WAPDA, Peshawar and another (PLD

1987 SC 195), The Deputy Inspector-General of Police,

Lahore and others v. Anis-ur-Rehman Khan (PLD 1985 SC

134) and Begum Shams-un-Nisa v. Said Akbar Abbasi and

another (PLD 1982 SC 413). However, while reaffirming

the declaration of law referred to above, nonetheless, after

Civil Petition No.516-K of 2022 -6-

hearing the learned Additional Advocate General and

examining the record, having regard to the peculiarity of

circumstances, we do not feel persuaded to non-suit the

respondent, present in person, merely on account of

flawed handling of his plea by the Tribunal.”

10.

The decision of disciplinary proceedings would have no

bearing to the decision of criminal case or vice versa. In

Muhammad Iqbal v. District Police Officer, Sahiwal and another,6 it

has been held as follows:-

“8. This Court has already laid down in the case of Arif

Ghafoor, that disciplinary proceedings and criminal

proceedings are quite distinct to each other having

altogether different characteristics and there is nothing

common between the adjudicative forums by whom

separate prescribed procedure and mechanism is followed

for adjudication and both the forums have their own

domain of jurisdiction. The decision of one forum would

have no bearing on the decision of other forum in any

manner whatsoever. In the said background, it would be a

misconceived notion to consider the acquittal in a criminal

trial as an embargo against disciplinary proceedings”.

(Emphasis supplied)

Thus, there is no cavil to the preposition that departmental

proceedings and criminal proceedings operate independently and

are not mutually exclusive. Departmental proceedings are governed

by distinct laws, procedures, and evidentiary standards, which

differ from those in criminal cases. Because of these differences, a

criminal acquittal does not automatically influence the results of

departmental proceedings provided that all legal and procedural

requirements have been duly complied with.7

11.

In the case at hand, petitioner during service

misappropriated a huge amount and after conducting an inquiry

and following all legal and procedural requirements he was

dismissed from service. Record further reveals that based on the

inquiry report, available evidence, and self-admission of the

petitioner that specified amount was misappropriated, department

directed the petitioner to credit the misappropriated amount, in

6 (2011 SCMR 534) paragraph No.8

7 Province of Punjab v. Khadim Hussain Abbasi (2021 SCMR 1419)

Civil Petition No.516-K of 2022 -7-

lieu thereof, petitioner deposited Rs.228,206/- under head of

unclassified receipt. However, petitioner failed to deposit remaining

amount therefore the department was bound under the rules to

report the matter to the Law Enforcement agency for the purpose

of lodging FIR which was accordingly registered.

12.

The fact that petitioner was acquitted of the criminal

charges does not absolve him of the penalty imposed under

disciplinary proceedings because standard of proof in criminal case

i.e. to prove guilt of accused beyond any shadow of reasonable

doubt, is entirely different and more stringent and difficult to prove

than the standard of proof in disciplinary proceedings i.e. Balance

of probabilities or preponderance of evidence. In this regard

reference may be made to the case of Usman Ghani v. The Chief

Post Master, GPO Karachi and other8, wherein it has been held

that:-

“9. The standard of proof looked-for in a departmental

inquiry deviates from the standard of proof required in a

criminal trial. In the departmental inquiry conducted on

the charges of misconduct, the standard of proof is that of

"balance of probabilities or preponderance of evidence" but

not a "proof beyond reasonable doubt", which strict proof

is required in criminal trial. The doctrine of natural justice

communicates the clear insight and perception that the

authority conducting the departmental inquiry should be

impartial and delinquent civil servant should be provided

fair opportunity of being heard and if the order of the

competent authority based on inquiry report is challenged

before the Service Tribunal then it is the legal duty of the

Service Tribunal to give some reasons and there should be

some discussion of evidence on record which is necessary

to deliberate the merits of the case in order to reach just

conclusion before confirming, reducing or setting aside the

penalty.”

[Emphasis Added]

13.

The service appeal of the petitioner was also dismissed

on the point of limitation. Suffice is to state that appeal of

petitioner was hit by principle of "delay or laches", which is based

on maxim “Vigilantibus non dormientibus jura subveniunt” which

8 [2022 SCMR 745]

Civil Petition No.516-K of 2022 -8-

means the law aids and assists those who are vigilant but not

those who are sleeping over their rights. Delay in invoking a lawful

remedy by a person or entity that was sleeping over their rights

may be denied. Under Section 3 of the Limitation Act, 1908 it is

the inherent duty of the Court to delve into the question of

limitation, regardless of whether it is raised or not.

14.

It is a well settled principle of law that Question of

laches in invoking any right is always considered in the light of the

conduct of the person. In the case at hand, record reveals that

petitioner has always demonstrated a lack of seriousness in

pursuing his rights. This is evident from the fact that petitioner

was dismissed from service on 20.03.2007, however, he preferred

service appeal after a delay of 2 years in 2009. Thereafter, he did

not avail remedy of appeal rather kept sleeping over his rights.

When confronted that why his service appeal before the Service

Tribunal was barred by time, the petitioner responded that since

FIR in the same case was registered therefore he had apprehension

of being arrested. However, this response wholly contradicts the

available record. Moreover, petitioner’s service appeal after his

acquittal in the criminal case was also barred by time and he failed

to justify such delay. Thus, conduct of petitioner throughout

proceedings has been questionable, therefore, learned Service

Tribunal was correct in dismissing his appeal on both grounds of

limitation as well as merits.

15.

In view thereof, we find that impugned judgment is

well-reasoned and has considered all the legal and factual aspects

of the matter. The petitioner has failed to make out a case

warranting any interference.

Civil Petition No.516-K of 2022 -9-

16.

Consequently, this petition, being devoid of merit, is

dismissed and leave refused.

17.

Above are the reasons of our short order pronounced

on even date.

Judge

Karachi,

19th July, 2024

APPROVED FOR REPORTING

Paras Zafar, LC*

For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.