Muhammad Moosa K. Leghari, J.--Petitioner seeks review of the judgment dated 9.12.2004 passed by this Court recorded in CA 05/2003 arising out of CP 1658/2002.
2. The relevant facts of the case are, that the petitioner while being employed as Inspector of Police was charge-sheeted on 14.10.2000 by Deputy Inspector-General of Police, Lahore Range under Punjab Police (E&D) Rules, 1975. The petitioner through his reply dated 25.10.2000 denied the allegations constituting all the six charges.
Meanwhile Inspector-General of Police, Punjab taking cognizance of the matter for the reasons that the appellant still being a probationer served him a show-cause notice dated 3.11.2000 requiring him to show-cause as to why he should not be discharged from police service: However, on receipt of reply submitted by the petitioner, Inspector-General of Police, Punjab on 3.2.2000 remanded the case to Deputy Inspector-General of Police, Punjab, Lahore Range for holding an inquiry within contemplation of the rules.
Pursuant where to the Superintendent of Police, Range Crime, Lahore was appointed as Inquiry Officer. The Inquiry Officer exonerated the petitioner of charges appearing at Serial No, (i) to (v) while holding him guilty of the charge mentioned at Serial No, (vi) on account of his unauthorized absence and recommended for awarding him minor penalty on that count vide his report dated 16.4.2001. The Authority i,e, Deputy Inspector-General of Police, Lahore Range, however disagreeing with the recommendation imposed major penalty of reduction in pay by one stage vide his order dated 17.8.2001.
On a representation submitted by the petitioner, Additional Inspector-General of Police, Punjab felt that the punishment so awarded was incommensurate with the gravity of the charges, therefore he issued a show-cause notice dated 24.01.2002 to the petitioner under Rule 12 of the Police Rules ibid which culminated into dismissal of the petitioner from the service on 20.3.2002.
The petitioner challenged the order of his dismissal from service before Punjab Service Tribunal who vide judgment dated 23.9.2002 dismissed the appeal. Leave to appeal was granted on 7.1.2003 and ultimately the appeal was dismissed. Hence this Review Petition. Vide order 12.12.2007 after hearing learned counsel for the petitioner, notices were issued to the respondents.
3. We have heard Mr. Wasim Sajjad, Sr. ASC on behalf of the petitioner and Qazi Muhammad Amin, Addl. A.G. Pb. on behalf of the official respondents.
4. It is contended on behalf of the petitioner that under Rule 12 of Punjab Police Rules, the Inspector- General of Police was not competent to revise the order of Competent Authority with regard to the charges which were not proved against the petitioner, in which he was exonerated by the Inquiry Officer and the Authority concurred with those findings of Inquiry Officer. It is argued that the charges against the petitioner as mentioned in para (i) to (v) of the charge-sheet were not proved in the inquiry as such he was found not guilty and was exonerated. The only charge which was proved against the petitioner was contained in para-(vi) with regard to his unauthorized absence, for which the Inquiry Officer recommended the minor penalty which was, however, enhanced by the Authority and converted into major penalty. It is stressed that the show-cause notice issued to the petitioner under Rule 12 did not speak of the charge mentioned at para (vi) of the charge-sheet whereas it referred to the charges mentioned in para (i) to (v) of the charge-sheet and the major penalty was awarded on those charges, which were not proved against the petitioner in the inquiry. On the above premises it is argued that the Inspector-General of Police had no authority to revise the order in respect of the charges which were not proved against the petitioner. Thus the order passed by Inspector-General of Police was incompetent and without lawful authority. In support of above contention learned counsel has placed reliance upon the judgment in the case of Inspector General of Police Vs. Habibur Rehman Abro (2005 SCM R 654). It is further emphasized that though the above ground was taken in CPLA filed before this Court and was pressed during the hearing but to the misfortune of the petitioner the above legal ground escaped the notice of this Court and was not adverted to in the judgment sought to be reviewed. Thus an error of law has occurred necessitating the review of the judgment.
5. Learned Additional Advocate General appearing for the respondents is at pains, as he has not been able to rebut the contentions with regard to competence and powers of Inspector-General of Police under Rule 12 of the Punjab Police Rules to revise the order of authority by converting the exoneration of a police personnel into guilty. He however vociferously contends that the charges of unauthorized absence, which were fully proved against the petitioner also constituted misconduct and warranted extreme penalty of dismissal from service as such order passed by Inspector- General of Police was competent and legal.
6. We have anxiously considered the arguments advanced before us, perused the material placed on record and have examined the rules with reference to the relevant case law.
7. Admittedly the petitioner was served with a charge-sheet dated 14.10.2000 containing the following allegations :--
(i) On 17.7.2000 the Superintendent of Police, Kohat received a tip-off that a Police Inspector of District Sheikhupura, Punjab would come to Darra Adam Khel with a stolen Toyota Corolla Motor Car and exchange it with another stolen Honda Civic Motor Car through notorious car receiver Noor Jamal alias Mama of Darra Adam Khel. After a carefully planned operation, the said brand new Toyota Corrolla Motor Car No, VRF/2525 was intercepted on Pindi Road with following inmates:-- (a)Razakar Hussain Shah s/o Sardar Ali r/o Ghattala, Sheikhupura (b)Zulfiqar Ali Shah s/, Sadique Ali r/o Dera Mutwana, Muridke, Sheikhpura (c)Babar Hussain s/o Muhammad Ishaq r/o Ghattala, Sheikhupura
(ii) You Razakar Hussain Shah claimed to be a PCS Police Inspector of district Sheikhupura while Zulfiqar Ali Shah claimed to be a Police Constable No, 1627 of District Sheikhupura. The car was sent to FSL for chemical examination. Chemical result shows tampering in chassis number and Engine number. Hence, case FIR No, 577 dated 21.7.2000 u/S. 419/420/468/471 PPC P.S Saddar District Kohat was registered.
(iii)During interrogation you Inspector. Razakar Hussain Shah divulged that you were working for Brigadier (Retd) Zulfiqar Dhillon r/o Narang Mandi, a leading PML, MPA who also served as Provincial Minister in the previous regime. About two months back the said motor car was purchased by the said politician at Darra Adam Khel through an Excise Inspector Amjad Chatta presently posted at Multan. The latter had promised the officer that he would provide original registration certificate for the said vehicle. At the behest of Brig. Zulfiqar, you had personally come to Darra Adam Khel to collect the vehicle which was duly delivered to the purchaser. However, Amjad Chatta flatered in his promise and could not furnish the registration certificate. By this time, the news of the Ex- Minister being in possession of stolen car had leaked out and the Brigadier desperately wanted to get rid of the motor car. Amjad Chatta refused to refund the money but through Noor Jamal of Darra Adam Khel he arranged to change the motor car with a Honda Civic Model 2000 Bearing Registration No, CA-1528.
(iv)While you Inspector Razakar Hussain Shah were on your way to Darra Adam Khel to execute the deal you Razakar Hussain Shah were apprehended by Kohat Police.
(v)Mr. Muhammad Nasrullah Khan, Magistrate Section 30 District Sheikhupura vide his order dated 20.7.2000 also observed another misconduct of you Razakar Hussain Shah, Inspector U.T., Police Station Sadar Sheikhupura. According to this order, one Akhtar Mehmood was kept in illegal custody and was ultimately involved in a false case vide FIR No, 415/2000 u/S. 3/4/4/79 PEHO. He was produced before the Area Magistrate on 13.7.2000 for physical remand. The physical remand was refused by the Court and he was directed to be kept in judicial custody. You Inspector Razakar Hussain Shah, instead of sending him to judicial custody, kept him at P.S. Sadar Sheikhupura and maltreated him.
(vi)You Inspector Razakar Hussain Shah had been absent from duty vide daily diary Report No, 19 dated 20.7.2000 P.S. Sadar Sheikhupura. (one week prior to entry of the said D.D. report). You are a probationer and crossed your limits and committed a blunder in the beginning of your service career and as such brought a bad name to the Police Department."
In pursuance of the above charge-sheet an inquiry was conducted against the petitioner. The Superintendent of Police. Range Crime, Lahore who was appointed as Inquiry Officer submitted his report dated 16.4.2001 which concluded in the following terms:-- "Taking into the consideration the explanation of the defaulter Inspector, evidence came before the undersigned and the report received from SSP/Kohat, the allegations mentioned in Para No, i, ii, iii, iv & v of the charge sheet were not proved, as no incriminating material was available. However as far as Para No, vi of the charge sheet regarding his absence from duty from 15th July to 20th August, 2000 is concerned, defaulter Inspector could not submit a plausible explanation (as he was in judicial lock-up) He had no answer for leaving station without prior permission of the authority.
On this count minor punishment is recommended."
However, the Authority i,e, DIG disagreeing with the recommendations of the Inquiry Officer imposed major penalty of reduction in pay by one stage on the petitioner on 17.8.2001.
8. Being aggrieved of the penalty imposed upon him, the petitioner seems to have furnished a representation before Inspector-General of Police, Punjab, Lahore. The I.G. Police, however, in return issued a show-cause notice dated 24.1.2002 under Rule 12 of the Punjab Police (E & D) Rules 1975, wherein after repeating the contents of the charge sheet dated 14.10.2000, it was further mentioned as under:-- "2. On the basis of above misconduct DIG Lahore Range served you a Charge Sheet No, 52122/GC dated 14.10.2000 and awarded you major penalty of reduction in pay by one stage vide his orders Endst: No, 39426 27/PA dated 17.08.2001.
3. After going through the relevant record it is established that the orders of the DIG Lahore Range are liable to be looked into afresh by the punishment awarded by the DIG Lahore Range is not commensurate with the gravity of the misconduct attributed to you.
4. In view of the above, you are called upon to show-cause in writing within 7 days of the receipt of this notice as to why the order of the DIG Lahore Range awarding you the punishment of reduction in pay by one stage may not be modified and converted into another major punishment, including dismissal as provided under Section 4(1)(b) of the rules ibid.
5. Your explanation should reach the undersigned within the stipulated period failing which it shall be presumed that you either have no defence to offer or have declined to offer the same and you accept the charges and in that eventuality, further action will be taken accordingly. You may also come up for personal healing, if you desire."
As an ultimate consequence of above show-cause notice issued to the petitioner under Rule 12 (ibid), the petitioner was awarded major penalty of dismissal from service vide order dated 20.3.2002. A perusal of the show-cause notice would reveal that it contains the allegations mentioned in Para (i) to (vi) of the charge sheet. The reading of Para 8 and 9 of the dismissal order clearly shows that whole case of the petitioner including the charges mentioned in Para (i) to (v) was reopened and re-examined by the Additional Inspector-General of Police, Punjab, Lahore as it will be evident from the reading of the relevant paragraphs of the order which are reproduced herein below:--
8. On the other hand, if the whole case is examined minutely it becomes clear as to how some of the influentials of our society are involved in criminal activities with the active connivance of such police officers and even on exposure of their illegalities not only save themselves but also save the skins of their disciples.
9. The explanation tendered by the defaulting Inspecting in response to the charge mentioned in Para (i) to (v) above also does not appear to be satisfactory as the defaulting Inspector confirms the allegation of maltreating the accused when he says that the jail Authorities did not receive the accused, asked for medical examination and the accused was confined in the jail after medical examination by a medical board.
9. For the sake of convenience and ready reference it will be appropriate to re-produce hereunder Rule 12 of the Punjab Police (Efficiency & Discipline) Rules, 1975:-- "12. Revision.--(i) The Inspector-General, Additional Inspector-General, a Deputy Inspector-General of Police or a Superintendent of Police may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
(ii)If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by re-instatement, or not. The order should also state whether service prior to dismissal should count for pension or not.
(iii)In all cases in which officers proposed to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity showing cause, either personally or in writing, why his punishment should not be enhanced.
On perusal of the above Rule, it will be abundantly clear that the Inspector-General, Additional Inspector-General,. Deputy Inspector-General or Superintendent of Police may call for record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
It will thus be seen that Rule 12 (ibid) authorizes and empowers the officers enumerated therein to call for record of the awards made by their subordinates and confirm, enhance, modify or annul the same. Meaning thereby that under the mandate provided in Rule 12 (ibid) the higher officers of the department are competent to call for record of the proceedings in which an official of the department has been held guilty of the charges and has been awarded some penalty for the purpose of confirming it, enhancing it, modifying it or even annulling it but they will have no authority to revise the orders whereby an official has been exonerated of the charges. The above proposition with regard to Sindh Police (Efficiency & Discipline) Rules, 1988 which are para materia to the Punjab Police Rules, came to be examined by a learned Division Bench of this Court in the case of Inspector-General of Police Vs. Habibur Rehman Abro (2005 SCM R 654) wherein following observations were made:-- "Learned Additional Advocate-General was at pains to defend the action taken against the respondent, laying much emphasis on the expression "may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing orders." Learned Law Officer is of the view that the expression "modify or annul the award" would include the power to convert a finding of 'not guilty' into finding of 'guilty' or to alter the finding of exoneration into finding of proved guilty. We are not inclined to agree with the interpretation placed by him. Use of expression regarding awards, in our view, would tend to show that some punishment or penalty ought to have been inflicted by a subordinate officer, upon an employee calling for confirmation, enhancement modification or annulment thereof. On an overall understanding of the rule, upon which reliance is being placed, we are of the view that it is difficult to agree with the submission that the rule authorizes an Inspector-General, Additional Inspector-General, Deputy Inspector-General of Police or a Superintendent of Police to convert finding of 'not guilty' into finding of guilty. Intention of the law- makers is obvious when we refer to clause (a) of Rule 16.28 of Rules, 1934, which expressly empowers superior Police Officers to inflict any penalty specified in Rule 16.1 of the said Rules, in any case, in which no punishment has been inflicted. The omission of this clause from the latest Rules clearly tends to signify the intention of the Legislature that Appellate and revisional Authorities are no longer vested with power to alter the finding of exoneration of charge into a finding of guilt.
Indeed, in appropriate cases, remedy is always available with department by way of an appeal before the proper forum established under the law but the intention, as interpreted by learned Additional Advocate-General, in our view is not spelt out from the language employed by the Legislature in the rule quoted hereinabove."
We are of the considered view that opinion expressed by the learned Bench of this Court in the above titled case is legally valid being based on provisions of law as such must be followed and fortified. Resultantly we are of the opinion that Inspector-General of Police, Punjab acted beyond his authority while re-examining the charges, of which the petitioner was exonerated by the Inquiry Officer and the act was further confirmed by the competent authority.
10. Adverting to the contentions raised by learned Additional Advocate General, Punjab with regard to awarding penalty of dismissal from service on the charge of unauthorized absence suffice it to say that except that it finds mention in the show-cause notice and in order of dismissal no reasons have been recorded for enhancing such penalty. Even it has not been discussed in the two orders passed by the Inspector-General of Police, as such the same could not be made the basis for enhancing he punishment and awarding the harsh penalty of dismissal from service imposed upon the petitioner. The arguments thus being without substance stand repelled.
11. We are mindful that the scope of review under Article 188 of the Constitution read with the Supreme Court Rules, is quite narrow and limited. The power of review has to be exercised quite sparingly and only in exceptional cases, in which some important aspect of the matter escaped the notice of Supreme Court or was not considered, and such error was apparent in the judgment under review.
So far as the petition in hand is concerned, it will be noted that the bare reading of the petition for leave to appeal would reveal that a specific ground was taken by the petitioner, which appears as Point No, 1(c) in the petition and has been described in the following manner: "(c) Whether the findings of the Enquiry Officer exonerated the petitioner from allegations made in Para i to v and concurred and affirmed by the Deputy Inspector-General of Police, could be reopened by the Additional Inspector-General of Police Punjab and whether he was competent to do so and if he was not and it is submitted with respect that there was not at all completely to do so, whether the order passed by him could be said to be legal?"
However, on perusal of the judgment passed by this Court, it transpires that such ground was not taken note of while recording the judgment. Neither the import and scope of Rule 12 (ibid) was examined nor the extent of its applicability to the case of the petitioner was considered. On noticing that it was an important point of law which escaped the notice of this Court while recording the judgment, and needed rectification of the error, we feel obliged to review the judgment dated 9.12.2004.
13. As a result of the discussion, the review petition is accepted and the judgment dated 09.12.2004 passed in Civil Appeal No, 05/03 is set aside. Consequently the appeal stands allowed.