TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals Nos. 1206 and 1207 of 2009 as they are directed against a consolidated judgment dated 26-5-2009 passed by theFederal Service Tribunal vide which appellants appeals against the order of the Inspector- General, National Highways & Motorways Police awarding them major penalty of compulsory retirement was affirmed and their appeals were dismissed.
2. Facts giving rise to the instant appeals briefly stated are that the appellants started their carrier as Constables in N.-W.F.P. Police, they were promoted as A.S.-Is. and S.-Is. From there, they were transferred to the Frontier Reserve Police, Peshawar. According to them they were serving as S.-Is. in the Frontier Reserve Police when with the approval of their departmental head they were inducted into National Highway and Motorway Police on deputation basis with one step promotion as Senior Patrolling Officers (SPOs, BPS-16) after thorough scrutiny of their service record by the Induction Committee headed by the DIG in the year 1997. Later on they were absorbed as SPOs on 28-4-2001. On an anonymous complaint to the effect that they were not S.-Is. when they were inducted into the National Highway and Motorway Police and that they were only promoted as S.-I. on officiating basis, an inquiry was conducted and vide the order dated 4-2-2006 their induction was withdrawn and then were repatriated to their parent department. The appellants approached the Tribunal by filing Appeal No. 505(R)CS of 2005 which was accepted by the Tribunal vide the judgment dated 25-11-2007 allowing the respondents to take any action against for the alleged misconduct done in the past or present. The respondent-Department assailed the judgment of the Tribunal in Civil Petitions Nos.192 to 194 of 2008 before this Court and leave was refused vide the order dated 2-4-2008. Thereafter the appellants approached the learned Islamabad High Court with a prayer that their name be included in the promotion list of SPOs. The High Court vide order dated 4-4-2008 disposed of their petitions with the observation that if ultimately they are exonerated in the inquiry, they shall be considered for promotion in accordance with law and rules applicable to them. A fresh inquiry was conducted in terms of the order of the Tribunal dated 25-11- 2007 which ultimately culminated in the award of major penalty of compulsory retirement vide the order dated 16-7-2007. Their appeals before the Federal Service Tribunal stand dismissed vide the impugned judgment.
3. Learned counsel for the appellants in support of these appeals submitted that that appellants have not been guilty of any misrepresentation or forgery; that they were promoted as A.S.-Is. in 1994; that in 1995 they were promoted as S.-Is. that they passed/ qualified police promotion course i.e. Recruits, Lower and Intermediate School Courses from PTC Hangu, N.-W.F.P. and NH & MP Orientation Course from PTC Sihala, Islamabad and served the department without any complaint whatsoever on their record; that during the inquiry no evidence was led to prove the allegations of forgery and that the finding, of guilt and the penalty awarded are not sustainable.
4. Learned Deputy Attorney General, on the other hand, defended the impugned judgment by submitting that appellants are members of a disciplined force; that they were guilty of misrepresentation at the time when they applied for induction into National Highway and Motorway Police and .by posing themselves as Sub-Inspectors whereas they were merely constables.
5. We have heard learned counsel for the appellants and learned Law Officer and have gone through the record.
6. The charge sheet and statement of allegations served on the appellants are similar and the one served on appellant Mukhtar Ali Khan is being reproduced as follows: "(i) That you were taken on deputation in National Highways and Motorway Police w.e.f 1-9-1997 against the post of SPO (BPS-16) and later on inducted in NH & MP in the same rank considering your rank as Sub-Inspector (BPS-14) in your parent department but on scrutiny it has come to the notice that your original rank in the Parent Department was list "D" Head Constable and promoted as A.S.-I. temporarily and thereafter as S.-I./PC purely on temporary basis.
(ii) This fact was not within the knowledge of National Highway and Motorway Police even at the time of your joining this department on deputation as wellas at the time of your induction that you were on deputation in FRP from Malakand Range (Parent Department) for a period of three years temporarily and you were promoted by the FRB as SI/PC purely on temporary basis and your original rank in Malakand Range (Parent Department) was Head Constable "D" list. But you deliberately concealed these facts from this department with mala fide intention for ulterior motives and got the rank of SPO by providing fake and false documents with connivance of some FRP officials despite the fact that you were well aware of your status in FRP and original rank in your parent department. (Emphasis is supplied)
(iii) You manoeuvred forged, fake, fictitious and bogus documents with the connivance of some officials of FRP and used these documents as genuine knowingly it were fake and bogus documents, as such, you wilfully, deliberately, intentionally andmaliciously concealed the actual and material facts from the NH and MP so as to get yourselves inducted herein. The letter of PPO, NWFP, Peshawar dated 20-2-2008, in which the Commandant FRP has been directed for their fraudulent action, against the delinquent officials of FRP for their fraudulent action, reflects that you had committed the gross and grave misconduct with the connivance of some FRP officials.
(iv) You were also well aware of these facts that Frontier Reserve Police is a temporary force and therefore, all benefits in servicestructure are considered "temporary" within FRP. However,you did not disclose these facts and got the rank of SPO by fraudulent means.
(v) You were basically "D" list Head Constable in your parent department and you manoeuvred forged and fake documents with connivance of some FRP officials and you posed yourself as regular S.-I. and fraudulently managed to induct in NH and MP as SPO and was drawing salary of SPO since 1997, thereby you caused heavy loss to government exchequer."
7. In reply to the afore-referred charge sheet, after raising preliminary objections regarding the vires of the inquiry order, the appointment of the inquiry officer and the fact that another officer similarly placed (SPO Said Asghar, who was inducted in the same manner and whose induction was withdrawn but was still serving the Motorway Police), the appellants controverted the allegations levelled against them and submitted as under:- Mukhtiar Ali Khan Nadir Khan
(2) So far the unlawful and defective statement of allegation is concerned the following few lines are submitted for considerations.
(i) Selective committee of N.- W.F.P. Police recommended me for NH&MP and later on I was taken on deputation in NH&MP on 1-9-1997 so for my rank is concerned I was Sub- Inspector Platoon Commander and drawing my pay in BPS-14. The platoon commander is a rank in FRP equal to Sub-Inspector in District Police and Patrolling Officer in Motorway Police."(i) I was taken on deputation in NH & MP without my consent and was forced to report to Motorway Police on 23-10-1997. At that time, I was not willing to serve in Motorway Police. So far as my rank is concerned I as Sub- Inspector Platoon Commander drawing my pay in BPS-14. The platoon commander is a rank in FRP equal to Sub-Inspector in District Police and Patrolling Officer in Motorway Police.
(ii) As stated below, my service record was requisitioned by the Motorway Police wherein all the entries were available, which was thoroughly checked by the induction committee at the time of my induction and for the second time when the anonymous complaint against my rank was received. The induction committee has already decided the said complaint.(ii) As stated below, my service record was requisitioned by the Motorway Police wherein all the entries were available, which was thoroughly available checked by the induction committee at the time of my induction and for the second time when the anonymous complaint against my rank was received. The said complaint has already been decided by the induction committee for the second time on 26-6-2004.
(iii) After taking me on deputation, the Motorway Police requisitioned my Service Record from N.-W.F.P. wherein(iii) After taking me on deputation, the Motorway Police requisitioned my Service Record from N.-W.F.P. wherein each and each and every paper was/is available. At the time of my induction, my service record, as per induction policy then in vogue, was thoroughly checked by the induction committee headed by a senior officer of DIG rank. When my service record and other particulars were found by the said committee in accordance with the criteria, a letter was written by the IG NH&MP to I.-G.
N.-W.F.P. for issuance of NOC for my induction. The IG N.- W.F.P., after obtaining consent of all concerned, sent the NOC directly to IG NH&MP. It is pertinent to mention that neither I provided my service record nor I was directed to do so, nor the letters regarding the correspondence between the two Inspector Generals were procured by me nor copies of same were indorsed to me nor I was in the knowledge of the said correspondence till my induction in NH&MP copy of which was also not endorsed to me. In this connection, page- 34 of the paper book filed by NH&MP in the Supreme Court (page-8 of the Service Tribunal Judgment, letter No. FHP-41(5)/05/E dated 4-2- 2006 is referred. The relevant paras are 3 & 4, wherein it has been mentioned that my rank was not concealed by me but was communicated as Sub- Inspector by the IGP N.-W.F.P.
So far the letter of PPO N.-W.F.P. dated 20-2-2008 is concerned, the IG NH&MP had requested the PPO vide letter dated 4-2-2008 the IG N.-every paper was/ is available. At the time of my induction, my service record, as per induction policy then in vogue, was thoroughly checked by the induction committee headed by a senior officer of DIG rank. When my service record and other particulars were found by the said committee in accordance with the criteria, a letter was written by the IG NH&MP to IG N.- W.F.P. for issuance of NOC for my induction. The IG N.-W.F.P., after obtaining consent of all concerned, sent the NOC directly to IG NH & IVIP. It is pertinent to mention that neither I provided my service record nor I was directed to do so, nor the letters regarding the correspondence between the two Inspector Generals were procured by me nor copies of same were indorsed to me nor I was in the knowledge of the said correspondence till my induction in NH&MP copy of which was also not endorsed to me. In this connection, page-34 of the paper book filed by NH&MP in the Supreme Court (page-8 of the Service Tribunal Judgment, letter No. FHP-41(5)/05/E dated 04/02/2006 is referred. The relevant paras are 3 & 4, wherein it has been mentioned that my rank was not concealed by me but was communicated as Sub- Inspector by the IGP N.-W.F.P. So far the letter of PPO N.-W.F.P. dated 20-2-2008 is concerned, the IG NH&MP had requested the PPO vide letter dated 4-2-2008 the IG N.-W.F.P. has shown his willingness to accept me as platoon commander BPS-14. This position clearly shows that I W.F.P. has shown his willingness to accept me as platoon commander BPS-14.
This position clearly shows that I neither manoeuvred, nor forged, nor faked, nor fictitious and bogus document has ever been produced by me nor used them as genuine, knowingly, wilfully, deliberately, intentionally or maliciously rather it is the departmental authorities who are behind me and wanted to squeeze me, for which I do reserve my right to approach the proper forum/ Court.neither manoeuvred, nor forged, nor faked, nor fictitious and bogus document has ever been produced by me nor used them as genuine, knowingly wilfully, deliberately, intentionally or maliciously rather it is the departmental authorities who are behind me and wanted to squeeze me, for which I do reserve my right to approach the proper forum/ Court.
(iv) FRP came into being in the year 1986 and is a permanent force. So far as the information provided by the Commandant regarding its temporariness, is not based on fact and for that very purpose, doors of the court would be knocked at proper time. The standing order No. 3 of 1999/ FRP has no sanctity in the eyes of law being devoid of approval of the provincial government.
Even otherwise it has nothing to do with my promotion as I was promoted as A.S.-I. in 1992 and S.-I. in 1994. therefore, the standing order of 1999 has no application to my case.(iv) FRP came into being in the year 1986 and is a permanent force. So far as the information provided by the Commandant regarding its temporariness, is not based on fact and for that very purpose, doors of the court would be knocked at proper time. The standing order No. 3 of 1999/ FRP has no sanctity in the eyes of law being devoid of approval of the provincial government. Even otherwise it has nothing to do with my promotion as I was promoted as A.S.-I. in 1992 and S.-I. in 1994. therefore, the standing order of 1999 has no application to my case.
(v) I performed that duty of SPO and my original rank as determined by the Supreme Court of Pakistan by dismissing the appeal of the department, I could not be called as D-list head constable which amounts to the contempt of the Supreme Court of the Pakistan. I have caused no loss to the government as I had(v) I performed that duty of SPO and my original rank as determined by the Supreme Court of Pakistan by dismissing the appeal of the department, I could not be called as D' list head constable which amounts to the contempt of the Supreme Court of the Pakistan. I have caused no loss to the government as I had performed the duty of SPO and had drawn performed the duty of SPO 'and had drawn its pay.
Furthermore, the judgment of the ,Supreme Court of the Pakistan reported as PLD 1992 SC 2007 is very much clear on this point.its pay. Furthermore, the judgment of the Supreme Court of the Pakistan reported as PLD 1992 SC 2007 is very much clear on this point."
(vi) In addition to what has been stated above the federal service tribunal in 25-11-2007 has made so many repeated observations on the allegation levelled against me in the present proceeding and has dilated upon the merit of allegation which is the subject of the present enquiry and proceeding, keeping in view detailed observation being made by honuorable service tribunal the allegation leveled against the respondent accused has already been turned down by the service tribunal, so a person cannot be vexed twice for a single allegation. Service tribunal in negative has answered the fate of these allegations.
3. Furthermore, the above points have been alleged before the Federal Service Tribunal Islamabad as well as the Supreme Court of Pakistan by the NH&MP but they have been ignored and now could not be re-agitated.
4. The NH&MP is estopped to initiate such like proceedings because they have filed appeal in the Supreme Court of Pakistan which has been turned down by the Court without any such observations of the departmental proceedings despite the repeated requests of Mr. Niaz Ahmad Rathore DAG to the Supreme Court Pakistan. The judgment of honourable Supreme Court related to the above subject is attached.
5. For the above reasons, the enquiry proceedings may be dropped and the charge sheet may be filed please.
8. In terms of the inquiry report dated 23-6-2008, it was held that both the officers were basically Head Constables; that they were promoted as Sub-Inspectors purely on temporary basis and sent to Frontier Reserve Police; that they were on deputation for three years in the latter force; that only their parent department (Malakand Range, N.-W.F.P.) could promote them; that they concealed the factual position with connivance of the Frontier Reserve Officials ; that the incorrect information regarding them was provided by the Commandant Frontier Reserve Police or Inspector General of Police, N.-W.F.P. and that since they are beneficiaries they are guilty of misconduct. In the charge sheet and statement of allegations, they were accused of forgery, fraud and misrepresentation.
However a close reading of the report and the material placed on record would indicate that neither forgery, fraud and even misrepresentation on the part of the appellants could be established instead the facts are that they were promoted as S.-Is. but on officiating basis, were serving as Sub-Inspectors in N.-W.F.P. Police when they were sent to Frontier Reserve Police and that they were given one step promotion against the post of SPO in the National Highway and Motorway Police. Both in the charge sheet and the inquiry report, letter from PPO N.-W.F.P. have been quoted out of context and a wrong inference has been drawn against the appellants. For instance in the letter dated 20-2-2008 to which reference was made in the charge sheet, the PPO N.-W.F.P. did not hold the appellants guilty but rather qua their rank it was stated that "they all were "D" List head Constables and promoted as S.-Is./Platoon Commandants". It was further stated that"
(iii) the Commandant FRP is being directed for the action, (iv) As per report of Commandant FRP, the officers if repatriated can be accepted as Platoon Commandants in their original status and seniority on list "D". There is no allegation in any letter from P.P.O. N.-W.F.P. or Commandant FRP that they were guilty of forgery or misrepresentation. Even in the subsequent correspondence, the Provincial Police Officer in his letter No. 13500/E-11 dated 4-8-2006 has candidly acknowledged and reiterated that the appellants were promoted as Sub-Inspectors on officiating basis. The relevant part of the letter from P.P.O N.-W.F.P. reads as under:-- "Clause (4) of the Standing Order No. 3 also provides that the principles of temporary promotion as per Police Rules in the Rank of A.S.-I. and S.-I. as Section Commanders and Platoon Commanders shall be applicable and such promotion shall be for two years and purely on temporary basis because FRP is temporary sanctioned force for the time being. Therefore, all benefits in service structure shall be considered temporary within FRP whereas the aim of such promotion should be to test the officer whether he is fit for officiating promotion in the higher rank or not.
Though the following officers concerned falls under category (1) officers of Literate Group but being a temporary sanctioned force no proper list "E" as per Police Rules has been maintained in the FRP and all these officers were promoted at par with other officers as Platoon Commanders having no other vacancies in the FRP 1.S.-I./PC Hafiz Noor Muhammad 2.S.-I./PC Hafiz Nadir Khan 3.S.-I./ PC Hafiz Said Asghar 4.S.-I./ PC Mukhtar Ali"
9. It is evident from the afore-referred letter that the appellants were duly promoted as Sub- Inspectors and the aim of such promotions was"to test the officer whether he is fit for promotion in the higher rank or not". The learned Deputy Attorney-General was specifically confronted with the contents of the letters from PPO, Peshawar, referred in the preceding paragraphs and he in all fairness conceded that even promotion on officiating basis is a promotion and the allegations of forgery or fraud are not borne out. Nothing was brought on record to indicate that the induction eligibility criteria of NH & MP excluded those who were officiating S.-Is. If they had played any foul, the P.P.O N.-W.F.P. in his letter dated 20-2-2008 to which reference has been given above, would not have informed Motorway Police that "as per report of the Commandant FRP, the officers if repatriated can be accepted as Platoon Commandants in their original status and seniority list `D'.
10. In the afore-referred circumstances, we are of the view that the show-cause notice and the findings rendered by the Inquiry Officer are against the weight of the evidence led and the allegations levelled could not be proved. The award of major penalty of compulsory retirement in these circumstances is not sustainable. Consequently, both these appeals are allowed, the order dated 4-2-2006 of the Inspector-General, National Highway and Motorway Police and the impugned judgment dated 26-5-2009 passed by the Federal Service Tribunal are set aside.
Appellants shall be reinstated in service and shall be entitled to back-benefits as well.