' RAJA FAYYAZ AHMED, J.--- Through C.P. No,588-P of 2003 and C.P. No,1825 of 2003, leave to appeal have been sought for from the judgment, dated 28-5-2003 passed by the learned N.-W.F.P. Service Tribunal, Peshawar whereby separate appeals filed by the petitioners Ghulam Sadiq and Fazal Illahi relating to the same transaction and subject-matter have been dismissed and the orders of their dismissal from service maintained.
2. The facts of the case in brief are that petitioners ex-constables while posted in Police Line, D.I.
Khan alleged to have proceeded to Kala-Gorh within the jurisdiction of Police Station Paharpur, District D.I. Khan and allegedly demanded an amount of Rs,40,000 from the villagers in some criminal case by fraudulently representing themselves to be the personnel of C.I.A. Staff. An inquiry was ordered to be conducted into the matter through S.I.P.O./Headquarters D.I. Khan under Rule 5(3) of N.-W.F.P. Police Rules, 1975. The Inquiry Officer found the petitioners guilty of misconduct on the charges levelled against them each vide report dated 14-2-2000. Consequent upon receipt of the report of the Inquiry Officer, final show-cause notice was issued to the petitioners by the S.P., D.I.
Khan dispensing with the further inquiry into the matter. As in identical terms final show-cause notice was issued to both the petitioners, therefore, one of the such show-cause notice for convenience is reproduced hereinbelow in extenso:-- "Final Show-cause notice ' WHEREAS, you, Constable Fazal Illahi No,408 are reported to be involved in the commission of following misconduct as defined in N.-W.F.P. Police Rules, 1975:-- ' While posted in Police Lines, D.I. Khan now at guard in District Hqrs. Hospital, D.I. Khan. You proceeded to village Kala-Gorh Police Station Paharpur and demanded a huge amount of Rs,40,000 from the villagers of Kala-Gorh in some criminal case fraudulently by showing themselves the member of C . I. A . Staff.
' During the preliminary enquiry conducted by S.D.P.O./HQrs. D.I. Khan, the allegation/charges levelled against you have been proved, which being a bad name for Police Force.
' AND WHEREAS, the material placed before me is sufficient to establish the commission of above serious misconduct and unbecoming of good Police Officer against you.
' NOW THEREFORE, I Ejaz Ahmad Langrial, Superintendent of Police Dera Ismail Khan call upon you Constable Fazal Ellahi No,408 through this final show-cause notice within 7 days of the receipt of this notice as to why you should not be awarded major punishment including dismissal from service as provided under rule 4(i)(b) WR 75 of the abovesaid Rules. Also state whether you wish to be heard in person.
' In case your reply is not received within stipulated period without any reasonable/sufficient cause, it will be presumed that you have no defence to offer and the matter shall be dealt with ex parte.
(Sd.) Ejaz Ahmad Langrial Superintendent of Police, Dera Ismail Khan."
3. Reply to the show-cause notice was filed by petitioner Ghulam Sadiq, copy available with his petition whereas; copy of the reply to show-cause notice, if any, filed by petitioner Fazal Illahi is not available on record of his case nor does it appear from the dismissal order and the order passed by the Departmental Authority in the appeal that reply to show-cause notice was submitted by the said petitioner. However, it has been mentioned in para. No,3 of the impugned order passed by the learned N.-W.F.P. Service Tribunal that reply to the final show-cause notice was filed by petitioner Fazal Illahi. Thereafter, the petitioners were summoned in the orderly room to be heard in person on 6-3-2000 by the Authority/S.P., D.I. Khan who after scrutinizing the documents hearing the parties and having taken into consideration the inquiry report, vide order of even date dismissed the petitioners from service w,e,f, 6-3-2000. Operating part of the original order passed by the S.P., D.I.
Khan is reproduced herein:-- "An enquiry was ordered to be conducted into the matter through S.I.P.O./HQrs D.I. Khan under "General Proceedings" under Rule 5(3) of N.-W.F.P. Police Rules, 1975. The Enquiry Officer held the defaulter constables guilty of misconduct as charged for and submitted findings report on 14-2- 2000. Therefore, no further enquiry is necessitated. The defaulters were served with final show- cause notice received, which was perused and placed on record. The defaulters were summoned in the orderly room to provide them lawful opportunity of hearing, they appeared in orderly room on 6-3-2000. They failed to give any reasonable explanation. I heard Constable Ghulam Sadiq No,175, has no excuse to offer. He is only trying to bluff the senior. He has been guilty of gross misconduct. Not only he tried to extort money from amongst villagers, he also left his (dim) without permission and brought a very bad name to this force. Even now he is telling lies. He also took with him the other constables. Fazal Ellahi No,408 constable was also accompanied and was hence V.
Patiently but he is talking senseably. He is even negating his statements which he had already given in front of us where he had confessed that Ghulam Sadiq No,175 LHC and he had gone together for this (extorticed). In view the enquiry report, his reply to final show-cause notice and his verbal submission, today, his misconduct is proved..
' On the available record and with no genuine explanation from hearing of defaulters I have satisfied that the charges of misconduct stand proved beyond any shadow of doubt, as leaving nothing expect of them becoming a good Police Officers ' In the light of above I Ejaz Ahmed Langrial, Superintendent of Police, Dera Ismail Khan, in exercise of power confirmed under N.-W.F.P. Police Rules, 1975 awardCd constables, Ghulam Sadiq No,175 and Fazal Elahi No,408 a major punishment of dismissal from service with effect from 6-3-2000."
4. Petitioners preferred departmental appeals against the order of their dismissal from service before Deputy Inspector-General of Police, D.I. Khan Range, D.I. Khan. The Appellate Authority after hearing the petitioners vide order dated 28-7-2000 rejected their appeals which are in fact a common order passed in both the appeals except to the extend of some distinguishable reasons.
For the sake of convenience and reference one of the order passed by the Appellate Authority in the case of petitioner Fazal Illahi is reproduced herein below:-- "ORDER'
' This order will dispose of an appeal preferred by ex constable Fazal Ellahi No,408 of D.I. Khan District against the order of his dismissal from service passed by S.P., D.I. Khan vide O.B. No,3000 dated 6-3-2000.
' Brief facts of the case are that while posted in Police Lines, D.I. Khan ex constable Fazal Ellahi No,408 was on Guard duty at District Hqrs Hospital, D.I. Khan He along with another constable Ghulam Sadiq No,175 proceeded to village Kalagorh, Police Station Paharpur, District D.I. Khan and demanded Rs,40,000 from the villagers in some criminal cases and fraudulently deposing himself to be an officer of the C.I.A. Staff, D.I. Khan with pretext of providing assistance to them.
' An enquiry was conducted against him through S.D.P.O/HQrs. D I Khan under Rule 5(3) of N.-W.F.P.
Police Rules, 1975. The Enquiry Officer held him guilty of misconduct. The defaulter was served with show-cause notice. The S.P. D.I. Khan also provided him opportunity of personal hearing but he failed to rebut the allegations. The allegations have been proved against him. He not only tried to extort money from the innocent villagers but also left his place of duty without any permission. His act was prejudicial to good order and discipline of the District Police. He undeniably brought a bad name to the police in the eyes of the citizens.
' I have gone through the appeal as well as the service record of the defaulter constable and also heard him in person during which he offered nothing tangible in his defence. He has been rightly dismissed from service because the charges levelled against him have been proved irrevocable.
Therefore, I see, no reason to interfere with the order already passed by S.P., D.I. Khan and reject his appeal."
6. Petitioners feeling themselves dissatisfied with the order of the rejection of their appeals assailed the same by filing separate service appeals before the learned N.-W.F.P. Service Tribunal. The learned Tribunal after hearing the parties' learned counsel vide judgment of even date mentioned above dismissed their appeals, assailed through these petitions.
7. Mr. Muhammad Naeem Sheikh, the learned Advocate Supreme Court for the petitioners and Mr. M. Bilal, Senior Advocate Supreme Court for the respondents have been heard at length. The learned counsel for the petitioners strenuously contended that the petitioners were condemned unheard as they were not associated nor afforded opportunity to defend themselves during the course of inquiry proceedings conducted into the allegations which consequently vitiated the entire proceedings of inquiry including the inquiry report culminating into their dismissal from service. Further the learned Advocate Supreme Court argued that without prejudice to the above noted contentions, the evidence collected during the course of inquiry has been misconstrued and misread by all the forums below which consequently, renders the impugned judgment as not sustainable in law and on facts. According to the learned counsel as the petitioners have been dismissed from service on the charge of misconduct, therefore, it was obligatory and a statutory duty cast upon the Authority to have ordered to conduct regular inquiry into the allegations which has not been done in the instant case, therefore, the petitioners deserve to be reinstated in service and a regular inquiry to be conducted if so warranted into the allegations. To supplement his contentions as regards holding of regular inquiry reliance has been placed on the judgment of this Court in the case of Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v.
Shafqat Mehmood 2003 SCM R 207.
8. Controverting to the above noted contentions put forth on behalf of the petitioners Mr. M. Bilal, learned Senior Advocate Supreme Court for the respondents contended that admittedly the petitioners were the members of Disciplined Force and in matters relating to the breach of discipline of the force are governed by N.-W.F.P. Police Rules, 1975 in which detailed procedure in respect of matters specified in Rule 3 including a member of the police force alleged to have been found guilty of misconduct has been prescribed which was duly followed by the Authority who dispensed with the regular inquiry in exercise of the powers vesting in him and directed for holding of General Police Proceedings in the orderly room during the course whereof; after service of final show-cause notice personal hearing was also afforded to the petitioners and finally after scrutiny of the proceedings 'conducted by the Inquiry Officer, his report and the submissions made by the petitioners, they were dismissed from service. The learned counsel for the respondents pointed out that the petitioners were also heard by the Appellate Authority and for the reasons recorded in the order passed by the Appellate Authority their departmental appeals were rejected and the learned N.-W.F.P. Service Tribunal for valid and plausible reasons also dismissed their Service Appeals vide impugned judgments which are unexceptionable. Mr. M. Bilal, Senior Advocate Supreme Court, maintained that it was not a statutory obligation on the part of the Authority to have directed for holding a regular inquiry in view of the overwhelming incriminating material it was deemed appropriate in the exercise of powers vesting in him under the law to dispense with the holding of regular inquiry, therefore, no exception to the exercise of powers by the Authority in such behalf could be taken. Reliance has placed on the judgments of this Court in the cases of Khaliq Dad v.
Inspector-General of Police and 2 others 2004 SCM R 192 and Altaf Hussain Shah v. Punjab Service Tribunal, Lahore and others 2003 SCM R 1172.
9. The contentions put forth on behalf of the parties by their learned counsel have been considered minutely and carefully in the light of the impugned judgments and the case-law cited during the course of arguments. The N.-W.F.P. Police Rules, 1975, the orders passed by the Departmental Appellate Authority and the Authority including the inquiry proceedings and the report of the Inquiry Officer based upon preliminary inquiry have been gone through with the assistance of the parties' learned counsel. The allegations against the petitioners were that they being police constables while posted in Police Line, D.I. Khan alleged to have proceeded to Kala-Gorh within the jurisdiction of Police Station Paharpur, District D.I. Khan and allegedly demanded an amount of Rs,40,000 from the villagers in some criminal case by fraudulently representing themselves to be the personnel of C.I.A. Staff amounting to gross misconduct. In view of these allegations, the S.P., D.I.
Khan being the Authority in the case in exercise of the powers vesting in him under sub-rule (3) read with clause (a) of Rule 3 of the N.-W.F.P. Police Rules, 1975 dispensed with the formal inquiry in view of the serious allegations and misconduct levelled against the petitioners and ordered for General Police Proceedings to be conducted into the matter. The Authority after having scrutinized the incriminating material collected during the course of preliminary inquiry; and the report of the Inquiry Officer, issued final show-cause notice to the petitioners and the response given by the defaulters to the show-cause notice, as well as; after hearing them in the orderly room in which as noted in the order passed by the Authority; they failed to reasonably explain their position in the light of the incriminating material were dismissed from service. The petitioners filed departmental appeals before the Appellate Authority which too were rejected after hearing the petitioners for the reasons recorded in such order and their service appeals also failed before the learned N.-W.F.P.
Service Tribunal.
10. Adverting to the contention that it was obligatory on the part of the Authority to have directed for holding of .a regular inquiry on the charge of misconduct involving imposition of one of the major penalties specified in the N.-W.F.P. Police Rules, 1975, it may be seen that in such behalf exclusive powers have been invested in the Departmental Authority to decide in view of the incriminating material or the nature of the allegations for holding of regular inquiry or the case to be dealt with in General Police Proceedings in matter relating to the charge of misconduct involving imposition of one of major penalties including dismissal from service. Hence it could not be said that it was the statutory duty obligation of the Authority to have essentially directed for holding of a formal inquiry into the allegations. Intent of the rule-maker is quite manifest from the powers expressly invested in the Departmental Authority to direct for holding of a departmental regular inquiry or to dispense with the same by conducting General Police Proceedings which obviously on general principles relating to the subject of inquiry cannot be done away with or annulled against the clear intent of letter and the law. In the reported judgment cited by the learned Advocate Supreme Court for the petitioners i,e, 2003 SCM R 207 the N.-W.F.P. Police Rules, 1975 and in particular provisions of sub-rule (3) of Rule 3 of the N.-W.F.P. Police Rules, 1975 with regard to the powers of the Departmental Authority to direct for holding a formal inquiry proceedings into the allegations of misconduct or to dispense with the same were not brought under consideration as the case from such angle was not argued before the Honourable Bench hence, with utmost respect in our humble opinion, in view of the sub-rule (3) of Rule 3 of the N.- W.F.P. Police Rules, 1975 we are constrained to observe that the Departmental Authority in the case had the powers to decide for holding a formal inquiry into allegations amounting to misconduct or otherwise. Moreover, the facts of the case relating to the above mentioned cited judgment are distinguishable as in that case, the civil servant was charged with a criminal case in which he was exonerated by the complainant and was eventually, acquitted and department constituted Facts- findings Committee which investigated the matter but the employee was not allowed to take part in the investigation and on the basis of report submitted by the Committee, he was dismissed from service. The Service Tribunal allowed the appeal filed by such civil servant and he was reinstated in service on the ground that after acquittal there was no material available with the Authority to take action and impose major penalty of dismissal from service. The C.P.L.A. Was dismissed and leave to appeal was refused on the ground that neither there was misreading nor non-reading of material evidence or msiconstruction of facts and law and the petitioners failed to raise any question of general public importance as contemplated under the Article 212(3) of the Constitution. In the instant case, overwhelming incriminating material, during the course of a preliminary inquiry has been collected by the Inquiry Officer against petitioner Fazal Illahi in C.P. No,1825 of 2003 who was even caught red-handed by the villagers but as far as involvement of petitioner Ghulam Sadiq in C.P. No,588-P of 2003 is concerned it was alleged and stated by the villagers before the Inquiry Officer that Fazal Illahi was accompanied by a person at the relevant E time who made good his escape but no further probe with regard to the person, who had accompanied Fazal Illahi when they demanded an amount of Rs,40,000 for extending benefit to a party to criminal case was made. The petitioner Fazal Illahi was heard before the departmental forums at all the levels to whom, also final show-cause notice before passing of the final order by the Departmental Authority resulting into his dismissal from service was issued but he failed to satisfactorily explain his position or rebut the incriminating material. Record reveals that procedure under the N.-W.F.P.
Police Rules, 1975 had been the departmental forums and before Service Tribunal was provided in observed in the case as well as; full and proper opportunity of hearing by consonance with the principles of natural justice and the law. No part of incriminating evidence appears to have been misread, non-read or misconstrued by the departmental forums and the judgment of the learned N.-W.F.P. Service Tribunal impugned through civil petition passed in the case of Fazal Illahi is unexceptionable. No substantial question of public importance within the meaning of Article 212(3) of the Constitution could be raised resultantly, C.P. No,1825 of 2003 is dismissed and leave is refused.
' As hereinabove observed in the case of Ghulam Sadiq petitioner in C.P. No,588-P of 2003, the evidence collected during the course of preliminary inquiry resulting into submission of report by the Inquiry Officer, eventually culminating into the dismissal of the petitioner from service has been misread and misconstrued by the departmental forums and was not taken notice of even by the learned N.-W.F.P. Service Tribunal furnishing basis for the dismissal of the petitioner from service which therefore, renders the judgment passed by the learned N.-W.F.P. Service Tribunal as not sustainable in law and on facts. Consequently, the same is set aside by converting this C.P. Into appeal with the direction to the Departmental Authority in the case, to hold further inquiry into allegations against petitioner Ghulam Sadiq in accordance with law and thereupon; to pass appropriate order after hearing the petitioner, on its own merits. The result is that the petitioner stands reinstated in service and the intervening period from date of his dismissal from service be treated as any kind of 'leave due'. Appeal stands disposed of, in the above terms with no order as to costs.