1. S. ABDUL JABBAR KHAN (CHAIRMAN).--III this case the appellant, an ex-A.S.I. Is aggrieved by the order of the S. P. Rawalpindi dated 23rd August, 1979 dismissing him from service on the charge of misconduct and absence from duty without permission. He is also aggrieved by the order of D. I.-G.
2. Police, Rawalpindi dated 2nd March, 1979 rejecting his appeal against the above order.
2. The appellant was served with a show-cause notice dated 5th July, 1979 on the following charges : "Whereas you A.S.I. Ali Ahmad No, 711 while posted at T. V. Booster Guard, Murree were found at Rawalpindi in Kashmiri Bazar on 4th July. 1979 under the influence of alcohol. You were arrested by the Police of 'A' Division in that state. After examination the Doctor opined that you were under the effect of alcohol. You also left the place of duty without any permission of the competent authority.
3. The above acts of omission and commissions amount to misconduct."
4. The appellant flied his explanation dated 15th July, 1979 denying the charges. It was found unsatisfactory and the impugned order was passed. Consequently an appeal has been filed before this Tribunal on 16th April, 1980. It was submitted that in this case the appellant was not given due opportunity to defend himself. He was never confronted with the statement of Mr. Wasim Kausar, A.S.P. Who caught hold of the appellant in drunken state in Kasbmiri Bazar, Rawalpindi.
5. Admittedly no enquiry, was held and no witness was examined in this case. Thus the appellant had no opportunity to cross-examine any witness. Reliance was placed on In re : Muhammad Afzal Chaudhry V. Commissioner, Lahore Division and in particular the following observation in the aforesaid judgment were cited :1 "Admittedly the truck driver was not examined orally. Therefore, his statement should not be before the Enquiry Officer to be availed of for arriving at the guilt or innocence of the petitioner. If at all such a statement was to be used as evidence then the right of cross-examination could not be denied to him whether the record of the inquiry was maintained in writing by the Equiry Officer or non at all."
6. It was also submitted that the appellant has been punished on both the charges of misconduct and absence from duty collectively. Thus the punishment of retirement is excessive.
7. The Department has pointed out that the provisions contained in the Punjab Police (E & D) Rules, 1975 and the West Pakistan Government Servants (E & D) Rules, 1980 were materially different.
8. According to the Department, under the Punjab Police (E & D) Rules 1975 the Department had the power to dispense with the enquiry whereas the 1960 Rules there was no such provision. Thus the rule relied upon by the appellant was clearly distinguishable.
4. After a careful consideration of the contentions raised by the parties before us we find that even the show-cause notice served on the appellant was not in accordance with the requirement of the E & D Rules. The show-cause notice failed to disclose the material details of the allegations so as to put the appellant to notice as to what he was required to defend against. In the notice it was nowhere specified that the appellant was captured in a drunken state by Mr. Wasim Kausar, A.S.P.
9. Or that there was a report of the Chemical Examiner against him. He was never confronted with any of the above material details. As such we are clearly of the view that the appellant had been denied the due opportunity to defend himself. In view of the judgment of the Lahore High Court the aforesaid material could not be used against the appellant without confronting him with the same.
10. We also find force in the contention of the appellant that the punishment awarded to him is excessive. However, with regard to the charge of absence from duty the appellant has nothing to say nor do we find anything in this behalf in his reply to the show cause notice. We accordingly hold that the aforesaid charge is proved against the appellant. But in view of the fact that he had been penalised on the charges of misconduct and absence without permission collectively, therefore, the punishment of dismissal was not called for particularly because the Department has nowhere stated that the appellant is a habitral absentee.
11. Thus keeping in view the circumstances of the case we are of the opinion that punishment of stoppage of two increments of the appellant is sufficient to meet the ends of justice and we . The appeal succeeds and the impugned orders are set aside. Appeal succeeded. 1981 PLC (C. S.) 846