' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).- This appeal is directed against the order dated 19-5-2001 passed by Respondent No,2 dismissing appellant from service on the charges of mixing up with notorious criminals. He preferred departmental appeal to the Respondent No,1, and on getting no response has filed the present appeal.
2. The facts relevant to the present case are that appellant was initially appointed as Assistant Sub-Inspector of Police and was subsequently promoted as Sub-Inspector of Police. During the posting as S.H.O. Hussainabad P.S. Appellant allegedly committed series of misconducts and was served with five separate show-cause notices under the Sindh Police (E&D) Rules, 1988. He failed to response any of the said notices. He was called in orderly room by the Senior Superintendent of Police, Hyderabad on 2-7-2000, his verbal explanations were not found satisfactory and he was awarded different penalties vide separate orders dated 4-7-2000. The details of such show-cause notices and the penalties are as under:--
(i) In first show-cause notice dated 16-1-2000. It was alleged that he challaned one Nabi Bux s/o Complainant Mst. Sharifa in a case U/S, 4 H.O. After 15 days he challaned her another son namely Amir Bux in the narcotics case. On enquiry conducted by the D.S.P. (Hqrs) the charges were proved against him. He was awarded major punishment of "Reduction in Rank to the .Post of Assistant Sub- Inspector of Police vide Order No,1380002 dated 4-7-2000.
(ii) In Second show-cause notice dated 26-1-2000, it was alleged that on 15-1-2000 some unknown criminals had stolen away one Suzuki Mehran car from Muhammad Hanif Khan Pathan, F.I.R.
No,8/2000 U/S. 379 P.P.C. Was registered at Police Station Hussainabad. Offence took place due to his inefficiency and lack of control over crime. He also failed to work out the case. Besides, there was general hue and cry regarding increase in crime but the S.H.O. Did not take any preventive measures to control it. He was awarded major punishment of "forfeiture of approved service for one year" vide Order No,13785-89 dated 4-7-2000.
(iii) In third show-cause notice dated 16-3-2000, it was alleged that on 4-3-2000 five armed criminals entered in the house of Tariq Mehmood and snatched ornamems, V.C.P. And cash Rs,10,000, F.I.R. No,28/2000 under section 20 H.O. Was registered at Police Station Hussainabad. He was awarded major punishment of "Forfeiture of approved service for one year" vide Order No,13790-94 dated 4-7-2000.
(iv) In fourth show-cause notice dated 1-4-2000, it was alleged that on 19-3-2000 three armed criminals over powered Abdul Aijaz and snatched Toyota Hilux on gun point. F.I.R. No,22 of 2000 U/S. 20 S.H.O. Was registered at Police Station Hussainabad. Offence took place to the inefficiency and lack of control over crime. He was awarded major punishment of Forfeiture of approved service for 2 years" vide Order No,13780-84 dated 4-7-2000.
(v) In fifth show-cause notice dated 8-4-2000, it was alleged that on 18-3-2000 in a scuffle between two 'rival groups Tufail and his son were injured. They approached Police Station to lodge the F.I.R. But their F.I.R was not lodged. On 19-3-2Q00 injured Tufail succumbed to injuries and died in the hospital due to slackness and lethargic attitude to his staff. He was awarded major punishment of Forfeiture of approved service for two years' vide Order No,13795-99., dated 4-7- 2000.
' Appellant stated that he has already filed separate departmental appeals but has not received any reply. He reserved his right to seek proper legal remedy, if adverse order (s) are passed against him.
3. On the same day, by a separate order dated 4-7-2000, appellant was placed under suspension by Respondent No,3. He was then served with show-cause notice dated 26-7-2000 issued by the Respondent No,3, alleging therein that; "ASP/SDPO Cantonment vide his Letter No,SDPO/Cantt;/ 1409 dated 21-4-2000 has reported that accused Irfan Rind arrested in case F.I.Rs Nos.44/2000 U/S. 156/89 Custom Act and 52/2000 U/Ss.
420,471, 467 P.P.C. Pir Mansoor and Javed Samoo were indulging in criminal activities. These criminals had your full support and connivance. These criminals are reportedly involved in the murder case of sub-Inspector Syed Akhtar Hussain Zaidi. Being closely associated you have prior knowledge of the offence but you did not help the local Police to work out the case Crime No,21/2000 U/Ss. 302,324 QD, 353, 427, 34 P.P.C. Of Police Station Qasimabad. Rather keep the accused informed of the movement of Police who fled away to unknown destination. By the reasons' shown above you are closely linked with hardened criminals."
' He submitted his reply to the above said show-cause notice and rebutted the allegations. He was, also however, arrested by Bhitai Nagar Police in some criminal cases. Besides, he was also involved in Crime No,10/2000 U/S. 399/402 P.P.C. And Crime No,21/2000 U/S. 302, 324, 353, 457, 109, 114/34 P.P.C. But as per appellant he obtained anticipatory bail from the concerned Court of law. Before the final outcome of the above said show-cause notice appellant was yet served with another show-cause notice dated 3-2-2001 issued by the Deputy Inspector General of Police, Hyderabad, Region, Hyderabad, alleging therein that: "As reported you are actively involved in rendering assistance to criminals namely (1) Irfan Rind, (2)
Pir Mansoor, (3) Jawaid Samoo, (4) Rajab Sehto and (5) Shakil Solangi. You have also closed terms with them. Your above friends are involved in the fdllowing cases of murder/dacoity/robbery and snatching of Hyderabad and Karachi.
(i) F.I.R. No,21/2000 U/Ss. 302, 324 QDO and 353, 427 of P.S. Qasimabad.
(ii) F.I.R. No,303/2000 U/S, 392-34 P.P.C. Of P.S. Defence Karachi
(iii) F.I.R. No,19/2000 U/S. 392-34 P.P.C. Of P.S. Korangi Karachi.
(iv) F.I.R. No,318/2000 U/S. 392-34 P.P.C. Of P.S. Clifton Karachi.
(v) F.I.R. No,47/2000 U/S. 382-34 P.P.C. Of P.S. Ferozabad, Karachi.
(vi) F.I.R. No,230/2000 U/S. 392-34 P.P.C. Of P.S. Aziz Bhutti Karachi.
(vii) F.I.R. No,10/2000 .0/S. 392-34 P.P.C. And 130-D Arms Ordinance of P.S.A.T.W. Karachi.
' You being police officer directly and indirectly is a staunch supporter of criminals who have created havoc in Hyderabad City, Karachi Metropolitan and other adjoining districts.
' You being police officer have indulged in nefarious activities of Crime and rendering assistance and providing information to the hardened criminals.
' You being police officer had knowledge of criminals, who had assassinated late SI Akhtar Ali Zaidi but you never disclosed the above information to the I/Os and officers of higher rank so that the criminals could have been arrested as such you being Police officer closed your eyes by not exploring the fruitful information of the criminals of such high profile cases of your colleague.
' That recently you have been arrested alongwith accused Jawaid Samoo, Ghulam Hyder Ganja, Shakeel Solangi and Irfan Rind vide case Crime No,10/2000 U/S. 399, 402, 13-D P.P.C. Of P.S. ATW Karachi in a robbed car of P.S. Clifton Karachi. Your constant involvement with heinous crime and criminals being a police officer is a black stigma on department as such you are incorrigible and unbecoming a good police officer as you indulged in gross misconduct. Thereby liable for departmental action as envisaged under Sindh Police (Efficiency and Discipline) Rules 1988, which may intel your dismissal from service."
' In his elaborate reply, appellant denied the allegations vehemently. He denied his association and friendship with the criminals named in the show-cause notice so also his arrest at the hands of Karachi Police. He also challenged the competency of the D.I.G.P. By stating that under the rules he is not the authority to issue any show-cause notice. He prayed for full fledged enquiry in the. Matter.
It may be stated that appellant was also sent up to stand his trial in Crime No,21/2000 U/Ss. 302, 324 P.P.C. Of P.S. Qasimabad in the concerned Court of law. His reply was not found satisfactory and he was served with final show-cause notice dated 23-4-2001 which took the appellant replied and reiterated his earlier stand. However, by an order dated 19-5-2001, appellant was awarded major penalty of Dismissal from 'service'. Feeling dissatisfied, he preferred departmental appeal to the Inspector General of Police, Sindh, Karachi, which remained un-responded within stipulated period of 90 days. He has now invoked the jurisdiction of this Tribunal praying for setting aside the dismissal order and his re-instatement in service with all back and consequential benefits.
4. In their respective written statements, respondents supported the impugned action against the appellant and prayed for dismissal of appeal.
5. In support of the appeal, learned counsel for the appellant argued that allegations contained in the-show-cause notice levelled against the appellant were false, fabricated, manipulated and there was no iota of truth in the same. The appellant denied the allegations but the department despite seriousness of the charges adopted short cut method of summary proceedings and dispensed with the regular enquiry and thus committed serious illegality and irregularity which is not warranted by law. He submitted that appellant, was working as an A.S.I.P. And that only the Superintendent of Police was competent Authority to issue show-cause notice(s) to the appellant and pass any punitive order, the D.I.G.P. Under the law/rules has no authority to inflict any punishment which being illegal is liable to be set-aside. In the end, learned counsel for the appellant contended that in the criminal case foisted upon the appellant which is the main reason of his dismissal form service, the appellant has already been acquitted by the competent Authority therefore, the impugned punitive order is not sustainable and liable to be set-aside on this score alone. He relied upon, (i) 1997 SCMR 1543, (ii) 1997 SCMR 1552. (iii) 2001 SCMR 269, (iv) 2002 SCMR 57 and (v) 2003 PLC (C.S.) 514
6. On the other hand, learned Asstt: A.-G. Has vehemently supported the impugned order. He contended that whole service record of appellant is blemished, he was served with numerous .Show-cause notices containing different type of allegations which were proved against him and he was punished accordingly but despite number of punishments he failed to improve, his association with notorious criminals and involvement in number of criminal cases by itself is sufficient to prove that he is not fit to retain in Police force and was thus rightly dismissed from service. He relied upon 2002 PLC (C.S.) 477.
7. We have considered the above submissions, perused the entire material placed on the record and the case-law referred to by the learned counsel for the parties.
8. There is no denial of the fact the charges levelled against the appellant in the show-cause notice were very serious in nature which the appellant vehemently denied. He denied his association with the criminals named in the show-cause notice, denied his arrest at the hands of Karachi police, denied his involvement in criminal case and also denied that he had any knowledge about the culprits who committed the murder of one of his colleague S.I.P. Akhtar Ali Zaidi. In such a circumstance, it was incumbent upon the authority concerned to order for conducting regular and full fledged enquiry in order to arrive at a proper and reasonable decision but instead a short cut method was adopted which by no stretch of imagination can be approved. It is a well established principle of law that if the charge is based on disputed questions of fact, a civil servant/employee cannot be denied a regular enquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses. In such a matter if findings of fact are recorded without recording any evidence the same will be based on surmises and conjectures which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned. Reference in this behalf is invited to the following cases:
(i) D.I.G.P. Lahore and others v. Anis-ur-Rehman, PLD 1985 SC 134,
(ii) Muhammad Saleem Akhtar v. The Director Food, 1987 SCMR 829.
(iii) Alamgir v. Divisional Forest Officer, Multan, 1993 SCMR 603,
(iv) Government of Sindh v. Saif-ul-Haq Hashmi, 1993 SCMR 956.
(v) Nawab Khan and another v. Govt. Of Pakistan, 1994 PLC (C.S.) 323.
(vi) Gliulam Muhammad Khan v. Prime Minister of Pakistan,. 1996 PLC (C.S.) 868.
' For imposing major penalty there must be ample convincing and reliable evidence placed on record which could safely go to prove charges levelled against civil servant and only then findings could be recorded. Reference is invited to the case of Shamsuddin Khawaja v. Govt. Of Pakistan, through Secretary Establishment, Islamabad and 2 others 2003 PLC (C.S.) 514. In this case no evidence of whatsoever nature was recorded. It is pertinent to point out that in the instant case even no preliminary enquiry was conducted before issuance of the show-cause notice of the appellant.
9. One of the allegations against the appellant was that he is involved in Crime No,21/2000 U/S. 302,324 P.P.C. Registered at P.S. Qasimabad. He was sent up to face his trial before the Judge, Anti- Terrorism Court, Hyderabad and Mirpurkhs Division at Hyderabad. He was not found guilty and acquitted vide judgment dated 18-9-2002, therefore, the very basis of the charge appears as non- existent.
10: It is worthwhile to mention here that appellant was Asstt; Sub-Inspector of Police. The departmental proceedings were initiated against the appellant by the Deputy Inspector General of Police and the impugned order of distnissal from service was also passed in the D.I.G.P who under the schedule to the Sindh Police (Efficiency and Discipline) Rules 1988 was not competent to pass such order as such authority vests D with the Superintendent of Police. The D.I.G.P. Has thus exceeded his jurisdiction, therefore, orders of dismissing appellant from service being coram non judice- is not maintainable. The case-law referred to by the learned Asstt; A.G. Has no application so far the facts of the instant case are concerned. In the reported matter the regular enquiry was dispensed with for the reason that allegations were admitted while in the instant case the facts were disputed which as observed earlier require& thorough probe.
11. For the aforesaid reasons, we are of the considered view that this is a fit case to be remanded for conducting regular enquiry. Accordingly, the impugned order dated 19-5-2001 is 'set-aside and the matter is remanded to Respondent No,3 i,e, District Police, Hyderabad for conducting regular enquiry purely in accordance with the provisions of the Sindh Police (Efficiency and Discipline)
Rules, 1988 and pass proper and legal order after hearing the appellant and considering the impact of acquittal judgment passed in favour of the appellant so also the observations made hereinabove. Meanwhile, the appellant is directed to be re-instated in service to clothe him with the status of 'Civil Servnat'. The intervening period shall follow the outcome of the disciplinary proceedings. The enquiry so conducted must be completed within 4 months from the date of receipt of copy of this judgment. No order as to costs.
12. Announced in open Court.