' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--Appellant Noor Alam while posted as Police Constable at C.I.A. Centre, Nawabashah was served with a charge-sheet dated 6-8-1990 issued by the Superintendent of Police, Nawabshah. In the statement of allegation annexed thereto, it was alleged.
"That you while posted as PC at Police Station 'A' section Nawabshah, along with co-accused SIP Gulsher Solangi (deceased) and HC/455 Raja Mehmood of Police Station 'A' section Nawabashah entered in the houie of complainant Noor Khan and arrested his son Ibrar, her daughter Kaneez Fatima and his relative Zulfiqar Ali. And thereafter brought them at Police Station 'A' section Nawabshah and confined them. You demanded Rs:5000 and after accepting Rs.1500 as bribe you did not release them and registered false case crime No.159 of 1992 U/s 294, as reported by SP ACE Sukkur, vide his letter No.SP/ACE/R/5186-88 dated. 14-7-1999, received through DIGP Stikkur vide his endst. No.E-1/15962-63 dated 23-7-1999 for the allegations that".
' This charge-sheet accompanied by statement of allegation was served upon appellant on 12-8- 1999 and he was required to furnish reply within 7 days from the date of receipt of the charge- sheet. However, on the very next day viz. 13-8-1999 he was awarded major penalty of dismissal from service. He preferred departmental appeal to Deputy Inspector General, of Police, Sukkur, but it was rejected vide order dated 4-1-2000. His review/mercy petition' to the respondent No.1 also Chet with same fate as per order dated 1-10-2002. He has now through the instant appeal invoked the jurisdiction of this Tribunal, praying for setting aside all the impugned orders and for his reinstatement in service with all back and consequential benefits.
2. In support of appeal, learned counsel for appellant inter alia contended that the procedure adopted by the respondent No.3 was palpably in glaring violation of the Sindh Police (E&D) Rules, 1988, inasmuch as, the appellant was served with a charge-sheet on 12-8-1999 and he was required to submit reply within 7 days, but without waiting for the reply of appellant, on the very next day viz 13-8-1999 he was dismissed from service.. Therefore, the original impugned' orders passed in violation of the principles of natural justice. Was also the appellate orders are liable to be set aside on this score alone. It was submitted further that in the charge-sheet only one allegation of receiving bribe and registration of false case was levelled against the appellant, while the impugned order of dismissal based upon two more .Allegations of past service record and that of extorting money from Nadeem and Najma, which were not the. Subject-matter of the charge- sheet dated 6-8-1999. Learned counsel for the appellant also stated that two Head Constables M/s. Muhammad Khan and Muhammad Arshad, who were dismissed on the same charges have already been exonerated and reinstated in service and the case of appellant being identical, as such, he is also entitled to same relief and treatment. In support of his contentions, he relied upon
(i) PLD 1980 SC 310, (ii) 1986 PLC (C.S.) 192; (iii) 1987 SCMR 602, (iv) 1988 PLC (C.S) 867; (v) 1989 PLC (C.S.) 777, (vi) 1989 PLC (C.S.) 749, (vii) 1993 PLC (C.S.) 308 and (viii) 1996 SCMR 802.,
3. On the other hand, learned Asstt. A.-G. Duly assisted by Mr. Yar Muhammad Daudi, Prosecuting Inspector, Nawabshah, controverted the submissions raised on behalf of appellant. She stated that rule 9(b) of the Sindh Police (E&D) rules, 1989, empowers .The authority competent to impose a major punishment, if it is not reasonable practicable to give the accused an opportunity of showing cause, therefore, no illegality was committed by the respondent No.3 in imposing major penalty to appellant. As regards exoneration and reinstatement of other two Head Constables, learned Asstt. A.G. Categorically stated that they were charge-sheeted and penalized for altogether separate incidents and same has no nexus with the allegations levelled against the present appellant. Lastly, she submitted that appellant's first review/mercy petition was rejected by respondent No.1 on 7-4-2000, but instead of approaching this Tribunal, .Appellant filed another review/mercy petition to respondent No.1, which being not maintainable was rejected on 1-10-2002, hence this appeal is neither maintainable nor competent besides being hopelessly time-barred, may be dismissed.
4. We have considered the above submissions, perused the material placed on the record and have minutely, gone through the case-law referred to by the learned counsel for appellant. Perusal of the show-cause notice and the original impugned dismissal order show that respondent No.3 proceeded against appellant under the provisions of the Sindh Police (E&D) Rules, 1988, but adopted two different modes contrary to each other. At first instance, respondent No.3 on being satisfied that the nature of allegations against the appellant was such that an enquiry as contemplated by rule 6(3)(b)(ii) of the Sindh Polite (E&D) Rules, 1988 was necessary and expedient issued on 6-8-1999 a charge-sheet as contemplated under rule 7(i)(a) of the aforesaid Rules, requiring appellant under rule 7(i)(b) of the said Rules, within seven days from the day the charge has been communicated to him, to put in a written defence and also to state at the same time whether he desires to be heard in person. This charge-sheet admittedly was served upon appellant, on 12-8-1999, he was thus supposed to furnish his written defence by or before 19-8- 1999, but surprisingly by order dated 13-8-1999 he was dismissed from service under rule 9(b) of Sindh Police (E&D) Rules, 1988. Respondent No.3 had initially taken decision that a formal enquiry should be conducted against appellant, but subsequently adopted different procedure. Under the law, once the department had decided to adopt one procedure, it could not adopt other vice versa.
Such switch over of procedure in course of proceedings is not permissible and always deprecated by our superior Courts. Reference is invited to the case of Zarar Khan v. Govt. Of Sindh and others, PLD 1980 SC 310. This ease was relied upon in the case of Ghulam Hadi Baloch v. Collector of Customs (Preventive) and Others, 1987 SCMR 602. Similar was the view taken in the case of Ghulam Muhammad Khan v. Prime Minister of Pakistan and others, 1996 SCMR 802.
5. Appellant was dismissed from service without affording any opportunity of showing cause and defend himself in purported exercise of the powers under rule 9 (b) of the Sindh Police (E&D) Rules, 1988. Rule 9 for the sake of convenience is reproduced below:- . "9. Rules 6 and 7 not to apply in certain cases:--Nothing in Rules 6 & 7 shall apply in a case:--
(a) where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a sentence of fine or of imprisonment or both; or
(b) where the authority competent is imposed a major punishment is satisfied that, for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause."
' Simple reading of this rule clearly indicates that it can be availed only if it is not reasonably practicable to give the accused police official an opportunity of showing cause. Obviously, in the instant case, it was well practicable to give the appellant an opportunity of showing cause. It may be stated that appellant as stated above, was earlier proceeded under rule 6 of the above Rules and he was also served with a show-cause notice. There was thus no occasion or justification whatsoever to resort to rule 9(h) of the Sindh Police. (E&D) Rules, 1988. In this regard we are fortified from the judgment in the case Muhammad Saleem Premi. v. Deputy Postmaster General, Lahore and 2 others, 1996-PLC (C.S.) 539, wherein the Honourable Supreme Court of Pakistan while discussing Rules 8(b). Of the Government Servants (Efficiency and Discipline) Rules, 1973 (which is similar to rule 9(b) ibid), held as under:- "The words "not reasonably practicable" indicate such circumstances and facts in which it is not conducive in the interest of justice nor equitable, fit, just or conscionable to practically follow the procedure of issuing show cause. Rule 8 being in, the nature of exception to rule 5 has to be strictly construed and cannot be interpreted in a wide manner to bring in its net cases which do not rightly fall within its four corners. The other condition for applicability of rule 8(b) is that the authority who. .Is satisfied that it is not reasonably practicable to give the accused an opportunity of showing care, should record the reasons for such satisfaction. Therefore, any order passed or action taken under rule 8(b) should precede by recording or include in the order itself the reasons for satisfaction why it is not reasonably practicable to issue show-cause notice. If any authority takes action and passes an order by invoking rule 8(b) without recording reasons in writing. Such order would be illegal and will not be a compliance of rule 8(b). Rule 8(b) being a departure from the principles of natural justice, which are applicable to all cases where an adverse order is passed against a party should be made in the manner as provided by the rule itself. As penalty is to be imposed upon the accused without affording him opportunity of showing cause, it becomes incumbent, more particularly because such is the requirement of rule 8(b), that the authority should record his reasons in writing for his satisfaction to apply this provision."
' In the case in hand, respondent No.3 has neither given any reason nor placed on record any document to show that any reasons for invoking rule 9(b) were recorded. The impugned order of dismissal, therefore, under the provision was unwarranted and uncalled for.
6. There is also much substance in the contention raised by appellant's learned counsel that in the show-cause notice dated 6-8-1999 referred to in para-I supra, there was only one allegation, while in the impugned dismissal order two more allegations have been incorporated, firstly, that appellant's major portion of service passed at P.S. 'A' section and C.I.A. Nawabshah. He was notorious in blackmailing the people, collecting monthlies from different Dens, reported to be habitual drunkard and mostly seen in intoxication condition during night time and abusing the people, and secondly, that on 6th Muharram (1999) he along with another person went to Hotel Saghar in civilian clothes and extorted Rs.5000 from Nadeem and Najma (boy friend and girl friend) who were just having tea. Admittedly for these two allegations, appellant was never charge-sheeted or served with any show-cause notice. In the absence of any prior show-cause notice and opportunity of personal hearing, the order impugned is not sustainable. It is pertinent to mention here that in the charge-sheet dated 6-8-1999 supra, the allegation pertains to the year, 1992 was mentioned. There is, however no explanation from the respondents side as to why the alleged misconduct of 1992 remained dormant for 7 years and made the basis of charge-sheet communicated to appellant in 1999.
7. As far delay in filing the instant appeal, there is nothing on the record placed by respondents to show that order dated 7-4-2000 rejecting appellant's review/mercy petition by respondent No.3 was ever dispatched to appellant and that he did receive it, inasmuch as even the copy of such order has not been placed on the record. Besides, in view of serious illegality and irregularity pointed out in paras 5 and 6 supra, the impugned orders are apparently void and nullity in the eye of law. Needless to say, that no limitation runs against the void order. Reliance is placed on PLD 1958 SC (Pak) 104, which is constantly, being followed in number of reported cases.
8. , In view of above discussed facts, legal aspects and the circumstances, all the impugned Orders passed by the respondents are set aside and appeal is allowed. The appellant is directed to be reinstated in service. The intervening period be treated as 'leave of kind due'. The department will however, be at liberty to initiate the proceeding afresh after such a long time if so desire in respect of allegation not show in the show-cause notice.
9. Announced in open Court.