KH. GHULAM QADIR (MEMBER).------Appellant Muhammad Zaman was a resident of Indian occupied village named Sowren Gundi who migrated to Azad Kashmir in the year 1965 and later on 15th July 1971 joined as constable in the Police Department under respondent No. 1. On 28-2-1977 when he was posted in District Kotli a 'Khulasa Shakait' was served on him to which he submitted his reply on 9-3-1977. Deputy Superintendent Police Kotli respondent No. 2 was inquiring into the Khulasa Shakait but the appellant apprehending that D. S. P. Was not fair in conducting inquiry moved an application requesting the D. S. P. To stop inquiry against him but this request was turned down. On this the appellant put up another application to S. P. Kotli respondent No. 3 with the request that some other officer be appointed as inquiry officer instead of D. S. P., Kotli but this too was rejected by S. P., Kotli saying that `justice or decision shall be made by him'. After this another `Khulasa Shakait' was served upon the appellant and was asked to reply forthwith whereupon the appellant wrote his reply in the presence of respondent No. 2 and delivered the same to him, D. S. P., Koth respondent No. 2 conducted ex parte inquiry and on conclusion submitted his report to S. P. Kotli recommending stoppage of three future increments but the S. P.
Disagreed with the recommendation and served a show-cause notice on the appellant and without affording any opportunity of producing his defence of hearing him in person passed the impugned order dated 24-5-1977 terminating his services., The appellant preferred an appeal before D. I. G. Respondent No. 4 but the same was dismissed without hearing the appellant. From the perusal of the record and also as stated by the appellant in para. 10 of his appeal it appears that the charge on which inquiry was initiated and in consequence the impugned order of termination of service was passed, was that the appellant had furnished photostat copies of the Khulasa Shakait and his reply to it to some accused persons. Tile grounds on the basis of which the appellant seeks to set aside the impugned order dated 24-5-1977 are stated as under :--
(i) That the inquiry conducted by respondent No. 2 was not fair.
(ii) That the appellant was neither heard in person nor any opportunity to defend himself by cross- examining witnesses appearing against him or by producing his defence was afforded to him.
(iii) That the prescribed legal procedure was not followed and as a result the order passed was bad in law.
2. The respondents filed written statement wherein it is admitted that the request of the appellant that D. S. P. Should stop inquiry as he was not fair or that S. P. Should appoint some other officer as tie inquiry officer was not acceded to but the other averments of the appellant were controverted saying that the inquiry officer after holding proper inquiry had recommended stoppage of promotion but the S. P. Considering the charge serious one had served a show-cause notice on the appellant and then passed the impugned order correctly according to the law.
3. The case was fixed for arguments a number of times but- counsel for the appellant did not appear for one or the other reasons. Lastly, the case was fixed for arguments on 2-1-1980 but still the counsel for the appellant failed to appear while counsel for the respondent was prepared to argue the case. Consequently the counsel for the respondent was heard and the case was ordered to be decided on merits.
4. We have gone through the relevant record. The impugned order dated 24-5-1977 passed by S. P., Koth respondent No. 3. An attested copy of which is placed on the record, reveals that during the course of a departmental inquiry held by D. S. P., 'Kotli against the appellant it was proved that the appellant had furnished photostat copies of `Khulasa Shakait' served on him and that of his reply thereto to certain accused persons involved in a criminal case No. 3 of 1977 under section 395, P. C.
With a view to helping the accused person in the case as was admitted by the appellant also in his statement before the Court in a judicial inquiry.
5. The D. S. P. Holding the charge proved against the appellant recommended stoppage of three future increments as punishment but the S. P. Kotli disagreed with this recommendation as he thought that the charge of helping the accused persons by supplying official record was so grave and serious in nature that the proposed punishment was not commensurate with the charge.
Therefore the S. P. Summoned the appellant in his office and heard him but rejected the plea or the statement of appellant that he did not deliver the photostat copies in question to the accused person and, ultimately, passed the impugned order of dismissal from service as in his opinion a deterrent punishment was necessary to curb such tendency in the Police organisation.
6. In this case we have to see whether the charge levelled against the appellant was proved as to justify the award of punishment. The record of inquiry is not before us as the same was not called up by any of the parties. All what is available on the record is the detailed order of S. P., Kotli in which the S. P., Kotli while holding the charge as proved against the appellant has solely relied on the admission of the appellant in a judicial inquiry to the effect that he had in fact delivered the photostat copies of Khulasa Shakait and his reply to the accused persons.
7. Fortunately enough a certified copy of the statement of appellant made on 11-4-1977 before the Court in a judicial inquiry referred to above is appended with the appeal as Appendix `E'. The relevant part on which the inquiry officer or the S. P., Kotli have relied upon to hold the charge proved against the appellant reads as follows at the close of his statement :-
8. From the perusal of this part of the statement it nowhere appears that the appellant in any way admitted that he had delivered the photo stat copies in question to the accused person. All that he said in his statement was that he admitted that Khulasa Shakait shown to him was the same which was delivered to him and the reply to it was also in his handwriting and that the photostat copies of these documents attached with the file were also correct. This by no stretch of imagination or argument gives an impression even of a doubt, not to speak of proof, that the appellant had admitted the charge of handing over the photostat copies of Khulasa Shakait or a reply to it. Such a statement could never amount to an admission on the basis of which a charge could sustain or be held to be proved without any other proof on the record. In these circumstances we are of the opinion that the A Inquiry Officer or the S. P., Kotli were in no way justified to hold that the charge levelled against the appellant was proved on the basis of which he could be departmentally penalised.
9. Apart from being unfounded and unwarranted on facts the impugned order of respondent No. 3 falls to the ground even on legal and procedural infirmity which altogether vitiates the order of dismissal from service as punishment in consequence of a departmental inquiry.
10. The Punjab Police Rules, 1934 (hereinafter referred o as the Police Rules) as adopted by the Azad Kashmir Government apply to the Police Organisation as a special law and all the matters pertaining to the police service including departmental inquiries and consequent punishments are to be governed by the said Police Rules which are obligatory and have the force of law. Under Chapter XVI of the Police Rules the procedure to be followed by the Police authorities while conducting departmental inquiries against police officers and awarding of punishments is prescribed in rule 16.24. The sub-rule 1 (ix) of rule 16.24 lays down certain essential conditions which must be fulfilled before awarding punishment of dismissal from service or reduction in rank on any police officer. The relevant portion of sub-rule (1) (ix) is reproduced below for the sake of reference and facility :- Sub-rule (1)(ix).-No order of dismissal or reduction in rank shall be passed by an officer empowered to dismiss a Police Officer or reduce him in rank until that officer has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, provided that this shall not apply-
(a) where a police officer is dismissed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge ; or
(b) where the officer empowered to dismiss him or reduce him in rank is satisfied that for some reason to be recorded by that officer in writing, it is not reasonably practicable to give to that police officer an opportunity of showing cause.
Before an order of dismissal or reduction in rank is passed, the officer to be punished shall be produced before the officer empowered to punish him, and shall be informed of the charges proved against him, and called upon to show cause why an order of dismissal or reduction in rank should not be passed. Any representation that he may make shall be recorded, shall form part of the record of the case, and shall be taken into consideration by the officer empowered to punish him before the final order is passed Provided that if, owing to the complicated nature of the case or other sufficient reason to be recorded, the officer empowered to impose the punishment considers this procedure inappropriate, he may inform the officer to be punished in writing of the charges proved against him, and call upon him to show cause in writing why an order of dismissal or reduction in rank should not be passed. Any written representation received shall be placed on the record of the case and taken into consideration before the final order is passed."
11. After reading the above-quoted rule as a whole it becomes crystal clear that no order of dismissal can be passed by an Officer empowered to dismiss a Police Officer unless the following conditions precedent are strictly followed :-
(1) That a reasonable opportunity of showing cause against the action proposed to be taken against the police officer is afforded.
(2) That before passing an order of dismissal the officer to be punished is produced before the competent officer.
(3) That the officer to be punished is informed of the charges proved against him.
(4) That the officer to be punished is called upon to show cause why punishment of dismissal should not be passed against him.
(5) That any representation made by the Police Officer forms part of the proceedings of the case and is taken into consideration by the officer empowered to punish.
12. However, the proviso to these provisions of procedure permits a departure from the requirement of production of the officer to be punished before the competent authority to punish if the complicated nature of the case or any other sufficient cause to be recorded demands such .Deviation in the prescribed procedure.
13. In the case of appellant the impugned order which is almost a detailed one, does not indicate in any way that the case of the appellant was a complicated one or there was any other sufficient reason for which the appellant could not be produced before the officer empowered to punish him.
In the absence of such a situation of the case the respondent No. 3 who passed the impugned order was bound to follow the rules prescribing the procedure to be followed and to call the appellant before him and inform him of the charges proved against him, and ask him to explain as to why an order of dismissal as punishment be not passed against him. Any representation made by the appellant in this behalf was To be recorded as to form the part of the record and after considering such explanation pass the order of dismissal. Unfortunately before passing the impugned order the competent authority that is, respondent No. 3 did not comply with the requirements of the obligatory procedure. All what respondent No. 3 did was that before passing the impugned order he simply called the appellant in his office and heard him. No other formalities were observed by informing the appellant of the charges proved against him, asking him to explain why the punishment of dismissal be not passed against him. The explanation offered by the appellant, if any was not recorded and made part of the record and then considered before passing the order of dismissal.
14. Under these circumstances the mandatory provisions of procedure were flagrantly disregarded with the result that the order of punishment becomes a nullity in law.
15. At bar the attention of the counsel for the respondents was specifically drawn to factual as well as legal infirmity of his case but the learned counsel had no satisfactory reply to these objections.
16. Under these circumstances we have no alternative but to set aside the impugned order as being bad in law as the same has no factual or legal basis to stand upon. Hence the impugned order is hereby set aside and the appellant is re-instated w. e. f. The date of impugned order with all back benefits under rules.
In the circumstances of the case no order as to costs.
The parties shall be informed.