' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).--- This is an appeal under section 10 of Removal from Service (Special Powers) Ordinance, 2000 against the impugned order, dated 10-12-2004 whereby major penalty of removal from service has been imposed upon the appellant. The appellant filed a departmental appeal, dated 20-12-2004 which was rejected by the department vide their letter, dated 20-6-2005 whereafter this appeal, dated 20-7-2005 has been filed before this Tribunal.
2. The brief facts of the case are that the appellant was appointed as Patrol Officer (B-14) in the National Highways and Motorway Police vide appointment order, dated 26-11-2001. While posted as Patrol Officer in beat No,3, Hyderabad at Jamshoro, the appellant was issued a show-cause notice, dated 6-9-2004 whereby he was charged with reusing the 4th leaf of Ticket No,597475 of Book No,29874 and issued it to driver of Truck No, PT-0263 Muhammad Khan for violation of traffic A rules and pocketed the fine of Rs,500 thus, failing to deposit the amount in Government treasury. The practice in the National Highways and Motorway Police is that every Patrol Officer is issued a challan book which consists of tickets and each individual ticket has four leaves and once a driver is challaned for traffic violation all the four leaves of a ticket are filled and the last quadruplicate leaf of the ticket is kept in the challan book in tact. Accordingly, the appellant was issued Book No,29874 in May, 2004 which after having been used, he deposited it back in early June, 2004 with the Head Muharrir of National Highways and Motorway Police Beat No,3, Hyderabad at Jamshoro.
Prior to the issuance of the show-cause notice an inquiry was ordered by the Senior Superintendent of Police (1), Sector N-5, National Highways and Motorway Police, Hyderabad vide department letter, dated 16-7-2004 and Syed Aftab Alam, D.S.P./C.P.O. Headquarters, Sector (III), Sukkur was appointed Inquiry Officer. The appellant was also served with a copy of the order of inquiry along with statement of allegations which read as under:-- "You P.O. Arbab Ali Zardari of Beat-3, Hyderabad have reused the fourth leaf of the Ticket No,597475 of Book No,29874 and illegally collected yourself the amount of fine Rupees 500 and did not deposit the amount in Government Treasury (Fine Collection Unit). Your corruption is primary evident from the fact that you have used the fourth leaf of the said ticket whose first leaf is originally and legally used for .Violation and the fourth leaf used by you is missing from original challan book and gave to driver to another Vehicle No,PT-0263. The same ticket is being produced by the truck driver namely 'Muhammad Khan."
' Subsequently, the Inquiry Officer was changed and Mr. Hasan Sarfraz, Chief Patrol Officer, Beat-I, Karachi was appointed as Inquiry Officer. The Inquiry Officer submitted his report/findings dated 16-8-2004 wherein it was held that the appellant committed the offence of corruption as made out in the statement of allegations. It is emerged from the inquiry report that Ticket No,597475 in Book No,29874 was issued on 14-5-2004 to a driver named Mehboob of Truck No,TK-794 for traffic violation and a fine of Rs,200 was imposed on the driver. It further transpired that the appellant while depositing the Book No,29874 having used all the tickets should have submitted the used ticket book along with the 4th copy of each ticket but he retained the quadruplicate copy of Ticket No,597475 and reused it by overwriting on this copy and issued the same to driver Muhammad Khan on 9-7-2004 imposing a fine of Rs,500 and pocketing the same. The matter initially came to the notice of the department when driver Muhammad Khan lodged a complaint with the department. Consequently, a show-cause notice dated 6-9-2004 was served upon the appellant and having found the reply to the show-cause notice not satisfactory, the department imposed the punishment of removal from service upon the appellant vide their letter, dated 10-12-2004. This order of punishment was appealed against departmentally by the appellant vide his letter 20-12- 2004 which was rejected by department vide their letter, dated 20-6-2005.
3. The learned counsel for the appellant stated that the appellant has unblemished record of service and was also awarded commendation certificates on 8-11-2003 and 24-5-2004. He stated that in recognition of his good performance, the appellant was also awarded Rs,15,000 as cash reward by respondent No,1 vide Pay Order No,0601989, dated 24-5-2004 along with commendation certificate by the Inspector-General, National Highways and Motorway Police. The learned counsel further stated that no intimation either orally or in writing was issued to the appellant by the National Highways and Motorway Police regarding the missing quadruplicate leaf of Ticket No,597475 of Book No,29874 after the book was deposited by the appellant with Head Muharar. He also stated that after depositing the challan book along with the ticket book with quadruplicate leaves with the Head Muharar, the appellant had no access to the challan book and the ticket book and therefore, there was no possibility of the appellant reusing the quadruplicate leaf of one of the tickets. The learned counsel further stated that in the inquiry report it is not clarified as to which driver and to which vehicle the ticket which was allegedly reused by the appellant was first issued.
He further stated that inquiry report also does not clarify on what date driver Muhammad Khan was issued the reused quadruplicate leaf of Ticket No,597475 from Book No,29874 and at what place. The learned counsel also stated that during the inquiry neither a copy of the complaint by driver Muhammad Khan nor copy of the 4th leaf allegedly reused by the appellant was served on the appellant.
4. The learned counsel for the appellant also argued that no show-cause notice was served upon the appellant before issuance of the inquiry order, dated 16-7-2004 thereby implying that this was not a formal inquiry, against the appellant but that the inquiry was in the nature of preliminary/fact finding inquiry. He further stated that during the inquiry proceedings, complainant driver Muhammad Khan was not present and also no witnesses were called and also the appellant was not shown or confronted with the challan book or the alleged reused Ticket No,597475 in original or its 4th leaf. The learned counsel further stated that the inquiry report was submitted under the signature of Mr. Hasan Sarfraz, C.P.O. And not by Syed Aftab Alam, who in fact was the Inquiry Officer. He further contended that Mr. Hasan Sarfraz was appointed as Inquiry Officer by Scnior Superintendent of Police on 28-7-2004 and all proceedings prior to 28-7-2004 were conducted by Syed Aftab Alam. Therefore, he asserted that Mr. Hasan Sarfraz who was appointed Inquiry Officer on 28-7-2004 had not himself heard the complainant or witnesses if any and had depended on hearsay and the evidence/ statements recorded by Syed Aftab Alam the earlier Inquiry Officer.
Therefore, he asserted that the report submitted by Mr. Hasan Sarfraz based on hearsay would suffer from illegalities and the propriety of such report would be open to question. He further stated that Mr. Hasan Sarfraz did not confront the appellant with any incriminating material and had also not allowed him to cross-examine any witness after he was appointed Inquiry Officer on 28-7- 2004.
5. The learned counsel for the appellant questioned the identification of driver Muhammad Khan by the Inquiry Officer and asserted that nowhere in the report it was stated that what document had identified driver. Muhammad Khan i,e, whether by his driving licence or by his Computerized National Identity Card (CNIC) and who identified him before the Inquiry Officer. He further stated that the Inquiry Officer Mr. Hasan Sarfraz relied on the statements recorded by P.O. Jamaluddin and Basharat Rasool Mahar of FCU-02 on 12-7-2004 and that statements of both these persons were recorded prior to 28-7-2004 i,e, before Mr. Hasan Sarfraz was appointed as Inquiry Officer. He further stated that copies of these statements were also not provided to the appellant nor were the witnesses were allowed to be cross-examined by the appellant. The learned counsel for the appellant also stated that nowhere in the inquiry report it is mentioned that the witnesses Jamaluddin, Ashiq Hussain and Basharat Rasool Mahar have implicated the appellant in the commission of the alleged offence of misappropriating the amount of Rs,500 and issuance of the 4th leaf of Ticket No,597475 from Book No,29874. He also stated that the report does not specify as to who brought the record from Sarfraz Associates the Fine Collection Unit Contractor and when and on what date.
6. The learned counsel for the appellant further stated that after receiving the appellant's reply to the show-cause notice the respondents did not follow the mandatory procedure as provided in the Removal from Service (Special Powers) Ordinance, 2000 in that no second show-cause notice proposing the imposition of penalty was issued to the appellant and that in disregard of the provisions of the Removal from Service (Special Powers) Ordinance, 2000 the major penalty of removal from service was inflicted upon the appellant. The learned counsel also stated that opportunity of personal hearing was not afforded to the appellant by the appellate Authority and as such the action taken against the appellant suffers from legal infirmity.
7. The learned counsel for the appellant argued that penalty cannot be imposed merely on the basis of findings of a preliminary or fact finding inquiry and a formal/regular inquiry is mandatory.
He further stated that if an Inquiry Officer is changed even on the request of the accused official the second Inquiry Officer has to initiate proceedings afresh but no such fresh proceedings were carried out by the second Inquiry Officer namely Mr. Hasan Sarfraz and he depended on the proceedings carried out by the earlier Inquiry Officer namely Syed Aftab Alam and, therefore, the procedure adopted by the second Inquiry Officer was violative of the laid down procedure.
8. The learned counsel for the appellant further stated that the findings of the Inquiry Officer are based on surmises and conjectures and that witnesses were examined in the absence of the appellant and no cross-examination opportunity was provided to the appellant. He further stated that the appellant was not shown the documents mentioned in the inquiry report and which were relied upon by the Inquiry Officer and therefore, it constituted miscarriage of justice. He further stated that the penalty imposed on the basis of non-confronted documents would be ab initio void, illegal and mala fide and relied on 1983 PLC (C.S.) 948, 2001 SCM R 256, PLD 1965 SC 90, PLD 1962 Dacca 162:
9. The learned counsel for the appellant concluded his arguments by stating that no corruption, misconduct or inefficiency has been proved against the appellant and that the order imposing major penalty of removal from service is bad in law and on facts and, therefore, not sustainable and as such the impugned order of removal from service is liable to be withdrawn and the appellant reinstated in service with all back benefits.
10. The learned Standing Counsel stated that each challan book has 20 tickets and each ticket has four leaves. Once a driver is challaned all the four leaves of the tickets are written and the last quadruplicate leaf of a ticket is retained in the ticket book. The ticket book and the challan book are required to he deposited by the Patrol Officer with the Head Moharar. The learned Standing Counsel stated that the inquiry proved that in one of the ticket books the appellant had not left the quadruplicate leaf and had taken it out and reused/misused it. He reissued the 4th leaf of Ticket No,597475 to a new traffic violator namely Muhammad Khan of Truck No,PT-0263 under B-39 Code with fine of Rs,500. He further stated that the reused 4th leaf bears the handwriting and signature of the appellant. The learned Standing Counsel further stated that ticket No,597475 was originally issued to traffic violator namely driver Mehboob of Truck No,TK-794 under offence Code B-56 with fine of amounting to Rs,200 on 14-5-2004. The learned Standing Counsel further stated that normally 30 to 40 challan books consisting of 20 tickets each are deposited every day with the Head Muharar or the Administration Officer. He further asserted that the missing 4th leaf on the relevant ticket went un-noticed by the Head Moharar either due to inefficiency or human error consequent to heavy work load. The learned Standing Counsel further asserted that internal departmental weakness was exploited by the appellant. He also stated that the 4th leaves of other tickets namely 597474, 602625, 602618, 602691 and 602700 were also found missing on later checking of the record which pointed towards possible misuse of these leaves also by the appellant. The learned Standing Counsel also stated that the Inquiry Officer was changed on the request of the appellant and as a result, Mr. Hasan Sarfraz the then C.P.O. Beat-I, Karachi was appointed Inquiry Officer vide order No,SSP(I)/S/N-5/Establishment, dated 28-7-2004 in place of Syed Aftab Alam. Therefore, the inquiry report was submitted by Mr. Hasan Sarfraz and not by Syed Aftab Alam. The learned Standing Counsel also argued that the Inquiry Officer had relied on the record obtained from the contractor of Fine Collection Unit namely Sarfraz Associates. He further stated that driver of Truck No,PT-0263 namely Muhammad Khan had lodged complaint of corruption against the appellant and had submitted Ticket No,597475 of Book No,29874 as documentary proof. The learned Standing Counsel further averred that during the inquiry the appellant had not demanded to cross-examine the witnesses or the complainant. The learned Standing Counsel also stated that the appellant was provided opportunity of personal hearing and was given full opportunity to defend himself. The learned Standing Counsel further stated that there is no provision of second or final show-cause notice in the law and therefore, no such second or final show-cause notice was issued to the appellant. The learned Standing Counsel summed up his arguments by stating that the appellant misused/reused the quadruplicate leaf of Ticket No,597475 as clearly established during the course of inquiry. The findings were based on the evidence provided by the complainant driver Muhammad Khan, the witnesses and the record itself. He further stated that the appellant had also been reusing/misusing the 4th leaves of tickets and cited the missing leaves of Tickets Nos.597474, 602625, 602618, 602691 and 602700. The learned Standing Counsel, therefore, argued that in view of the allegations having been established, the appeal is liable to be rejected.
12 (sic). Heard the learned counsel for the appellant as well as the learned Standing and also perused the record.
13. The Senior Superintendent of Police (I)/S/N-5/National Highways and Motorway Police, Hyderabad ordered an inquiry vide his letter, dated 16-7-2004 against appellant Mr. Arbab Ali Zardari, Patrol Officer (BS-14) in his capacity as competent authority citing therein the offence committed by the appellant in that he had misused/reused the 4th leaf of Ticket No,597475 of Book No,29874 and had also enclosed a statement of allegations to that effect. Syed Aftab Alam, D.S.P./C.P.O., Headquarters, Sector (III) was appointed Inquiry Officer. Later on, as stated by the respondents the Inquiry Officer Syed Aftab Alam was changed on the written request of the appellant and Mr. Hasan Sarfraz was appointed as Inquiry Officer. The Inquiry Officer accordingly submitted his report, dated 16-8-2004 establishing the allegation against the appellant. Thereafter, it appears from the record that a show-cause notice dated 6-9-2004 along with statement of allegations regarding the reuse/misuse of the 4th leaf of Ticket No,597475 was issued to the appellant. The appellant contends that the inquiry was in the nature of a preliminary or fact finding inquiry and that it was not a formal/regular inquiry. The learned Standing Counsel was asked whether an inquiry in addition to the inquiry ordered vide order, dated 16-7-2004 was held by the department to which it was replied that no further inquiry was held. It is clear from the contents of the order of inquiry vide letter, dated 16-7-2004 that it was an inquiry directed specifically against the appellant and cannot be construed as a preliminary or fact finding inquiry. The order of inquiry clearly pin-points that the said inquiry is being conducted to go into the allegations against the accused official (appellant in the present case) namely Mr. Arbab Ali Zardari. The Inquiry Officer also has given his finding that the accused official Mr. Arbab Ali Zardari had committed the offence as made out in the statement of allegations. Thereafter, a show-cause notice dated 6-9-2004, consequent to the findings of the Inquiry Officer, was served upon the appellant. We have however, noted a procedural defect in the inquiry proceedings in that the statement of allegations was not issued by the Inquiry Officer but by the competent authority vide letter of order of inquiry, dated 16- 7-2007. As regards the contention of the appellant that he was not afforded the opportunity of cross-examination, the respondents have stated that the appellant himself did not opt to cross- examine the complainant or the witnesses. The respondents have also asserted that the appellant was duly given the opportunity of personal hearing. However, the show-cause notice does not mention that the appellant would be afforded the opportunity of personal hearing. The record of inquiry also does not show a copy of the complaint as allegedly lodged by driver Muhammad Khan nor the statement of witnesses are available. The only evidence available on record is the record provided by Sarfraz Associates, Contractor of Fine Collection Unit which shows that Ticket No,597475 was issued to driver Mehboob and the 4th leaf of this ticket has also been shown as having been issued to one Muhammad Khan driver bearing the signature of the issuing police official. However, on close examination it reveals that the signature, on the misused/reused 4th leaf does not quite tally with the signatures of the appellant as in the memo. Of appeal and in the affidavit in support of the memo.
14. In view of the legal lacunae as discussed above we are constrained to hold the view that a regular/formal inquiry is mandated in the matter. In the event of holding a fresh formal inquiry, the respondents would do well to strictly abide by the laid down procedure which includes service of charge-sheet/statement of allegations by the Inquiry Officer, opportunity of cross-examination of the complainant and prosecution witnesses by the accused official and the opportunity of personal hearing. These mandatory provisions appear to have not been complied with by the respondents in the present exercise.
15. In view of the above we set aside the impugned order and order reinstatement of the appellant with further direction that department may hold a formal/regular inquiry which should be completed within four months of the receipt of this judgment. The payment of back-benefits etc. To the appellant will depend on the outcome of the inquiry. No order as to costs.
16. Parties be informed accordingly.