' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---Appellant Raja Farrukh Younus while serving as Sub-Inspector of Police Department at Khairpur in the capacity of S.H.O. Of Police Station Gambat, was proceeded with departmentally. A large number of show cause notices were issued to him on account of his involvement in criminal cases, negligence, misuse of official position and absence from duties. As alleged, appellant failed to submit reply of any of the show cause notices.
Ultimately by order dated 21-9-2001 passed by the then Senior Superintendent of Police, Khairpur, appellant was awarded major penalty of dismissal from service. After availing departmental remedies as provided by law and being unsuccessful, appellant has filed the present appeal for his reinstatement in service with all back and consequential benefits.
2. Mr. Muhammad Nawaz Shaikh, learned counsel for the appellant argued the matter at length and raised number of factual and legal pleas. He stated that charges were serious but no regular inquiry was ordered/conducted, none of the show-cause notice was ever served upon the appellant and he was condemned unheard thus the principles of natural justice were glaringly violated. He submitted that criminal case in which the appellant was falsely involved was disposed of at the very initial stage in "C" class, but without examining the record, appellant was penalized.
As regards appellant's absence from duties, learned counsel contended that on account of serious aliment appellant remained under medical treatment and that he time and again sent the medical certificates in support of his illness, but the respondent No,4, without verifying the genuineness and authenticity of the same sacked appellant from service without observing the codal formalities as provided by law. He also stated that no final show-cause notice which was mandatory was ever issued to the appellant. He submitted that at the one hand appellant's absence has been treated as leave without pay and thus he was made to suffer pecuniary loss and on the other hand he was penalized for same charge. While referring the un-reported judgment passed in civil Petition No,389-K/2002 (Inspector General of Police, Sindh and others v.
Muhammad Hassan) decided by the Honourable Supreme Court of Pakistan vide judgment dated 28-6-2002, whereby the judgment dated 12-2-2002 passed in appeal 332/1999 was maintained, learned counsel argued that once absence from duty having been regularized treating the same to be leave without pay, the subsequent penalty of dismissal from service is not sustainable.
3. In rebuttal, learned Asstt. A.G. Vehemently opposed the appeal. She contended that appellant's failure to submit reply to the show-cause notice tantamount to admission of guilt, there was thus no necessity of conducting regular inquiry. She added that appellant's absence from duty without prior permission amounts to misconduct, therefore, he was rightly penalized.
4. On careful examination of the record made available before us and the arguments advanced at Bar, it transpires that within a short span of 7 months from 24-1-2001 to 24-8-2001 as many as 6 show-cause notices were issued to appellant. There is, however, nothing on the record to indicate if any of the said show-cause notice was ever served upon the appellant. In the absence of positive proof of service of show-cause notice, failure of appellant to furnish reply thereof, is of no significance. It appears that appellant was not provided full, fair and proper opportunity to defend himself, thus the principles of natural justice were violated. It is settled principle of law that any order, affecting the rights of the parties concerned, passed in violation of principles of natural justice carries no legal value. In a case of University of Dacca v. Zakir Ahmed PLD 1965 SC 90, it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequence affecting the person or property or other rights of the parties concerned". The above case was referred to in the case of P.L A.C. v. Nasir Jamal Malik and others, 2001 PLC (C.S.) 890 wherein the Honourable apex Court observed that:-- "It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is in vogue the principle enshrined in the maxim "audi alteram partem" has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it part of the instrument governing the proceedings. Though the principle of audit alterm partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to he taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely attracting their interest is being taken."
' Besides, no final show-cause notice was ever issued to the appellant which is also a must and in this respect no leniency can be made for its dispensation as has been held by the Honourable Supreme Court in PLD 1981-SC-179 and 1997-PLC (C.S.) 424.
5. In view of above legal lacunas, we are of the considered opinion to remand the matter to respondent No,3 to initiate departmental proceedings against the appellant afresh. Accordingly, the original impugned order dated 21-9-2001 passed by respondent No,3 and two appellate orders passed by respondents Nos.1 & 2 are set aside and the matter is remanded to respondent No,3 to initiate departmental proceedings against the appellant afresh after providing him full, fair and proper opportunity of hearing, purely in accordance with law. Meanwhile the appellant is directed to be re instated in service to clothe him with the status of civil servant. The intervening period would follow the outcome of the fresh disciplinary proceedings, which shall be concluded within 4 months from the date of receipt of copy of the judgment. No order as to costs.
6. Announced in open Court.
2006 PLC (C.S.) 720 [Punjab Service Tribunal] Be ore Ch. Muhammad Zafar Iqbal, Member MUHAMMAD SAEED versus SUPERINTENDENT OF POLICE, HEADQUARTERS (LAW AND ORDERS) LAHORE and others Appeal No,1654 of 2004, decided on 21st September, 2005. Civil service--- ----Dismissal from service---Reinstatement---Employee was dismissed from service on the charge that he remained absent from duty for the last two/three years---Period for which employee had been charged for being absent, had been paid by the Department---Employee had been prosecuted in a slipshod manner without noticing material error of pays being paid to him without giving proper weight to his absence or nonabsence---Alleged prolonged absence though was a serious charge, but haphazard prosecution was another proof of departmental slackness---Employee was reinstated with direction to the Authorities to hold a de novo proceedings against employee---Fate of intervening period would be decided after conclusion of said de novo proceedings. [p. 721] A Dr. Eshan-ul-Haq, Counsel for Appellant.
Muhammad Naeem Malik, District Allorney for Respondents. Date of hearing: 21st September, 2005.
' CH. MUHAMMAD ZAFAR IQBAL, (MEMBER).---The appellant was departmentally prosecuted on the basis of show-cause notice No,1052/RSP dated 10-2-2004 on the charge that he had remained absent from duty for the last two/three years.
2. On the basis of this prolonged absence, he was dismissed from service vide order No,756- 58/RSP/H.Q. Dated 20-2-2004 by the competent authority, which was upheld by the appellate authority vide order No,1422/PA dated 30-7-2004.
3. Aggrieved by these orders the appellant filed the instant appeal No,1654 of 2004. After its regular admission, the comments of the respondents were sought and are placed on file.
4. During the arguments the learned counsel Dr. Ehsan-ul-Haq, pointed out that the period for which he has been charged for being absent had been being paid by the police department vide "Qabzal Wasool", which has been perused in the open Court in the presence of Departmental Representative and learned counsel. It was found that he' had been paid the salary regularly uptill 31-12-2003 and the pay of January and February 2004 had been refunded back by the disbursing authority because show-cause notice had been issued to him on 10-2-2004. This is an example of jumble of confusions on the part of the department. The appellant had been prosecuted in a slipshod manner without noticing the material error or pays being paid to him without given proper weight to absence or non-absence. This prolonged absence is a serious charge but haphazard prosecution is another proof of departmental slackness. I have no option but to reinstate the appellant and to direct the authorities to hold a de novo proceedings. The intervening period will be decided after the conclusion of the de novo proceedings. The result of de novo proceedings be intimated to Registrar of this Tribunal within 60 days. The appeal is disposed of in the above terms.
No order as to cost. Consigned to record room. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.