RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against judgment, dated 28-5-2002 of the Sindh Service Tribunal (hereinafter referred to as the Tribunal) accepting respondent's appeal against forfeiture of two years approved service.
2. Respondent was serving as Assistant Sub-Inspector Police in Sindh Police and was proceeded against on the charge of misconduct. Precise allegation against him was that one Mst. Shahzadi lodged F.I.R. No,11 of 1993 under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 against the respondent and others on 10-4-1993 at Police Station Bagerji District Shikarpur. He was accordingly charge-sheeted on 21-4-1993 by Senior Superintendent of Police, Larkana, which, however, was not served. The complaint against the respondent was enquired by Messrs Mohsan Hassan Butt, A.S.P./S.D.P.O. And Ahmed Mukarram, A.S.P./S.D.P.O., who, in their ex parte reports, found the respondent guilty. Meanwhile, criminal case registered against the respondent, after investigation by Senior Superintendent Police, Shikarpur was disposed of in cancelled class due to lack of evidence vide order of Sub-Divisional Magistrate, Garhi Yasin. Respondent, who was served with a final show-cause notice, dated 2-10-1994, denied the allegations and proclaimed innocence.
Thereafter Mr. Zafar Abbas Bukhari, S.D.P.O., was appointed to conduct fresh enquiry against him, who, after taking into consideration statements of the complainant and witnesses as well as two ex parte reports, found the respondent not guilty of the charge and submitted his report exonerating him of the charge. His reports was accordingly accepted and vide Senior Superintendent of Police Larkana's order dated 19-9-1996, the respondent was exonerated.
3. On his part, Deputy Inspector-General of Police, Larkana, while disagreeing with the findings recorded by Senior Superintendent of Police, Larkana, issued a notice in terms of Rule 12 of the Sindh Police (Efficiency and Discipline) Rules, 1988 (hereinafter referred to as the Rules, 1988) to the respondent to show cause as to why major penalty of dismissal from service may not be imposed upon him.
4. Respondent assailed the jurisdiction and competence of the Deputy Inspector-General with regard to issuance of notice, proposing to convert the enquiry report, exonerating him of the charge into infliction of major penalty. Deputy Inspector-General, however, did not accede to the objection taken by the respondent and vide order, dated 14-11-1996 found the respondent guilty of the charge and awarded major penalty of forfeiture of two years approved service. After availing of departmental appeal and rejection thereof, he challenged the impugned order before the Tribunal, which has been struck down vide judgment impugned in this petition.
5. We have heard learned Additional Advocate-General, Sindh in support of this petition as well as the respondent, who has appeared in person. Main ground, upon which the Tribunal struck down the action taken by Deputy Inspector-General, Larkana, appears to be that in terms of Rule 12 of the Rules, 1988, he was not competent to alter the finding of 'not guilty' into finding of 'guilty' and inflict a major penalty on an employee. The Tribunal, after comparison of rule 16.28 of the Police Rules, 1934 (since repealed) with rule 12 of the Rules, 1988 recorded a categorical finding that in view of material change in the latest rules, the Deputy Inspector-General was not competent to call for record of a decided case and inflict punishment in a case, in which punishment had not been awarded. For the sake of convenience and ready reference both the rules may be reproduced herein below:-- Rule 12 of Sindh Police (Efficiency and Discipline) Rules, 1988 Rule 16.28 of Police Rules, 1934 12.Revision.--- (i) The Inspector-General, Additional Inspector-General, a Deputy Inspector-General of Police or a Superintendent of Police may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
(ii) If any award of dismissal is annulled, the officer annulling, it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service prior to dismissal should count for pension or not.
(iii) In all cases in which officers propose to enhance an award they shall before passing final orders give the defaulter concerned an opportunity of showing cause either personally or in writing, why his punishment should not be enhanced.16.28 (1) The Inspector-General, Additional Inspector-General, a Deputy Inspector-General and a Superintendent of Police may call for and examine the records of any case; and
(a) May inflict any punishment specified in sub-rule
(2) of rule 16.1 in any case in which no punishment has been inflicted; and
(b) Confirm, enhance, modify or annul the punishment in any case in which any punishment specified in sub-rule (2) of rule 16.1 has been inflicted; and make or direct to be made further investigation before passing orders.
6. Learned Additional Advocate-General was at pains to defend the action taken against the respondent, laying much emphasis on the expression "may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing orders". Learned Law Officer is of the view that the expression "modify or annul the award" would include the power to convert a finding of 'not guilty' into finding of 'guilty' or to alter the finding of exoneration into finding of proved guilty. We are not inclined to agree with the interpretation placed by him. Use of expression regarding awards, in our view, would tend to show that some punishment or penalty ought to have been inflicted by a subordinate officer upon an employee calling for confirmation, enhancement, modification or annulment thereof. On an overall understanding of the rule, upon which reliance is being placed, we are of the view that it is difficult to agree with the submission that the rule authorizes an Inspector-General, Additional Inspector- General, Deputy Inspector-General of Police or a Superintendent of Police to convert finding of 'not guilty' into finding of 'guilty'. Intention of the law-makers is obvious when we refer to clause (a) of rule 16.28 of Rules, 1934, which expressly empowers superior Police Officers to inflict any penalty specified in rule 16.1 of the said Rules, in any case, in which no punishment has been inflicted. The omission of this clause from the latest Rules clearly tends to signify the intention of the Legislature that Appellate and revisional Authorities are no longer vested with power to alter a finding of exoneration of charge into a finding of guilt. Indeed, in appropriate cases, remedy is always available with the department by way of an appeal before the proper forum established under the law but the intention, as interpreted by learned Additional Advocate-General, in our view is not spelt out from the language employed by the Legislature in the rule quoted hereinabove.
7. No other ground has been urged in support of this petition, IE which is without any merit and is accordingly dismissed.