' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals Nos. 1206 & 1207 of 2009 as they are directed against a consolidated judgment dated 26.5.2009 passed by the Federal Service Tribunal vide which appellants' appeals against the orderof 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 NWFP Police, they were promoted as ASIs and SIs. From there, they were transferred to the Frontier Reserve Police, Peshawar: According to them they were serving as Sls 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 SI's when they. Were inducted into the National Highway and Motorway Police and that they were only promoted as SI 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 Basis, an inquiry was conducted and vide the order dated 4.2.2006 their induction was withdrawn and then were repatriated to their parent department.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/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 194/2008 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 ASIs in 1994: that in 1995 they were promoted. As. SIs: that they passed/qualified police promotional course i.e, Recruits, Lower and Intermediate School Courses from PTC Hangu, NWFP 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 nosing 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 & 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" I leaa Constable and promoted as ASI temporarily and thereafter as SI/PC purely on temporary basis.
(ii) This fact was not within theknowledge of National Highway and Motorway Police 'even at the time of your joining this department on deputation as well . As at the time of your induction that you were on deputation in FRP from Malakand Range (Parent Department) for a period of three year's 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 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, fakes, 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 and maliciously concealed the actual and material facts from the NH & MP so as to get yourselves inducted herein. The lettei 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 service structure 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 SI and fraudulently managed to induct in NH & 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 then and submitted as under:- {{DATA UNARRANGED}} "Mukhtiar Ali Khan Nadir Khan
(2) So far the unlawful and "(i) I was taken on defective statement of in deputation NH&MP allegation is concerned the without my consent and following few lines' are submitted for was forced to report to considerations, Motorway Police on
(i) Selective committee- of 23.16.1997. At that time I NWFP Police recommended was not willing to serve in me for NH & MP and later on I was taken on deputation Motorway Police. So far as in NH & MP on 1.9,1997 so my rank,is concerned I was for my rank is concerned I Sub Inspector Platoon was Sub-Inspector Platoon Commander and drawing my Commander drawing pay in BPS-I4. The platoon pay in BPS-14. The platoon commander is a rank in FRO commander is a rank in equal to Sub-Inspector in FRP equal to Sub-Inspector District Police and Patrolling Officer in Motorway Police. In District Police and (Emphasis is supplied)
Patrolling Officer in
(ii) As stated below, my Motorway Police. service record was requisitioned by the
(n) As stated below, my was record w ice ecor Motorway pOlice wherein all service the entries - were available, requisitioned by the which was thoroughly Motoway Police wherein checked by the induction all the entries were committee at the time of my induction and for the second- available. Which was time when the anonymous thoroughly checked by the complaint against my rank induction committee at the was received. The induction committee has already time of my induction and decided the said complaint. For the second time when
(iii) After taking me on the anonymous complaint deputation, the Motorway against my rank was Police requisitioned my received. The said Service Record from NWFP _______ NWFP wherein each and every complaint has already been paper waS/is available: At induction- the decided by the time of my induction,.My.Committee for the -.Second service record, as per induction policy , then in time on 26.6.2004. . Vogue, was thoroughly checked by the induction (iii) After taking me on committee 'headed by a deputation, the Motorwa senior officer of DIG rank. Police requisitioned my When my service record and .
Service Record from other particulars were found NWFP wherein each and by the said committee in accordance with the criteria, every paper was/is a letter was written by the. IG available. At the time of NH & MP to IG NWFP for my induction, my service issuance of NOC for my induction. The IG NWFP, record, as per induction after 'obtaining consent of all policy then in vogue, was concerned, sent the NOC thoroughly checked by the directly to IG NH&MP. It is pertinent to mention that induction committee neither I provided my service headed by a senior officer record nor I was directed to do so: nor the letterS of .DIG rank. When my .Regarding the Correspondence service recOrd and other between the two Inspector - particulars were found. By Generals were. Procured by me nor ,copies of the same the said committee in were indorsed to me nor I accordance with the . Was in the knowledge of the criteria. a letter was written : Said correspondence till My or, induction in NH Sc.' MP copy by the .IG NH&MP to 10 (.1' which was also not NWT-7P for issuance of '; endorsed to -me. In this NOC for my induction. connection, page .34 of doe. The IG NWFP, after paper- hook filed by NH MP in The Supreme Court..
Obtaining consent of all (page.--8 of the: Service concerned, sent' the NOC Tribunal Judgment, letter directly to 10 NH & MP. It No, FHP-41(5)/051E,. Dated 4.2.7006, is referred. The i.5 pertinent to mention that relevant. Paras are 3 &- 4, " neither I provided my wherein. It has been service. Record nor I was mentioned that my. Rank ,was s directed' to dO so, nor the 'not concealed by me but was communicated as SubL letters regarding the Inspector by the 10P NWFP correspondence between So' fur the letter of PPO the two Inspectors General NWFP. Dated 20'.2.2008 is concerned, the 10 NH & MP were procured by rue nor , had requested the PP() ride copies of the same were letter dated 4:2.2008 the 10 indorsed to me hor I :was in has shown his , .
Tassaduq Hussain Jilani, J. (SC) willingness to accept me as the knowledge of the said platoon commander BPS-14. Correspondence till my ' This position clearly shows that I neither manoeuvred, induction in NH & MP nor forged, lior faked; nor copy of which was also not fictitious and , bogus endorsed to me. In this . Document . Has ever been connection, page-34 of'the produced by me. Nor used ---- -- paper book filed by NH & them as 'genuine, 'knowingly, . Wilfully, deliberately, MP in the Supreme Court intentionally .43P maliciously (page-8 of the Service rather it is the departmental . authorities who are behind Tribunal Judgment, letter me and wanted to squeeze . No FHP- 41(5)/05/E, dated me, ..For which I do reserve 4.2.2006 is referred. The my right 'to approach the relevant paras are '3 & 4,- . proper forum/Court. wherein it has been
(iv) FRP came into being in m the year 1986 and is a mentioned that my rank permanent force. So far as . Was not concealed by me the information provided, by but was communicated as ' the Commandant regarding Sub-Inspector by the IGP its temporariness, is not based on fact and for' that NWFP. So far the letter of . very purpose, doors of the PPO NWFP dated Court would he knocked at 20.2.2008 is concerned, proper. Time. The standing MP had order 'No-. 3 of 1999/FRP' has the IG NH & no sanctity hi the eves of law _ requested the- PPO vide 'being devoid of approval of letter dated 4:2.2008 the IG the provincial government. NWFP has shown his Even otherwise it has willingness _to accept `me as nothing to do with my promotion. As I was promoted platoon commander BPS- as ASI in 1992 and- SI in 14. This position .
Clearly 1994, therefore, the standing shows that I neither order of 1999 has no manoeuvred, , nor forged, application to my case. : .(v) I performed nor faked, nor fictitious that duty of s SPO and my original rank as and bogus document has determined . By the Supreme eyer been produced by me Court of Pakistan by nor used them as genuine, dismissing the appear of the department, I could not he knowingly, s wilfully, called as D- list head deliberately, intentionally constable which amounts to or maliciouslY rather li is the contempt of the Supreme the departmental authorities Court of the Pakistan. I haVe who are behind me and caused no loss to the government as I had wanted to squeeze me, for performed the duty of SPO which I do reserve thy' and IvScl drawn its pay. right to approach the Furthermore, the judgment of the Supreme Courk of the proper forum/Court.
Pakistan reported as PLD
(iv) FRP came into beine.
1992 SC 2007 is very much in the year 1986 and is a clear on this point.
(vi) In addition to what ha. Permanent :fOree. So far as . Been stated , above, the the information provided , Federal Service' Tribunal in its detailed in (sic) judgments by , the Commandant. dated 25.11.2007 has made .Regarding its so many , repeated temporariness, is not based observation on the allegation on fact and for that very levelled against" me in the present prOceeding and has purpose; doors of the Court diluted upon the Meat," of would he, knocked at allegation which is the proper time. The standing subject of the present enquiry and proceeding, ',keeping in order NO. 3 of 1999/FRP view detailed 'Observation has no sanctity in the eyes being made, by honourable of . laW being devoid of Service TribUnat the . approval of the provincial . allegation" levelled against the respondent accused has government-' EYen already been turned down by otherwise it has nothing to the Service Tribunal, so a UA0 with I I my promotion as 'I perSon cannot be vexed twice was promoted as ASI in for a single . Allegation.
Service Tribunal in negative 1992 and SI in 1994, has answered the fate of therefore, the standing these allegations. Order of -1999 has ' no
3. Furthermore. The above applieatiOn.To my case. points have heed alleged. , . hetOrc the Federal Service (V) L performed that duty of Trihnnal : Islamabad as. Well SPO and. My original rank, as the Supreme COurt of , as determined by the Pakistan by the NH&MP but Supreme Court of Pakistan they have been ignored and now could not he by 'dismissing the appeal of
4. The NH&MP ,,is the department, I could not estoppel to initiate such like he called as, D-list head proceedings because they constable which amounts to have- filed appeal in the the contempt of the Supreme Court of Pakistan Supreme Court of Pakistan.
3 which has been turned down S by the Cott.t:t withOut any I have caused no loss to the such observations of the government as I had departmental prOceedingS performed the duty of SPO despite, the repc4ted requestS . of Mr. Niaz Alunad Rathore,, and had drawn its pay. DAG to the Supreme Court Furthermore, the judgment Pakistan. The judgment of of the Supreme Court of honourable Supreme Court. - related: to the above subject the Pakistan reported as is attached. PLD 1992 SC 2007 is very 5, For the above reasons, much clear on this point." the enqUiry proceedings May he dropped and the charge-sheet may he filed please. {{DATA UNNA RRANGED}}
8. In Icons of the inquiry report dated 23.6.2008, it as held that. Both the officers were basically Head . Constables: that the 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, NWFP) 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, NWFP 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 he established instead the facts, are that they were promoted as SIs but on officiating basis, were serving as Sub-Inspectors in NWFP 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 Mice. Both in the charge-sheet and the inquiry report, letter from PPO NWFP 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 NWFP 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 SI/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 froth P.P.O .NWFP 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-II,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. NWFP 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 ASI and SI. 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 fall under category (I) 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. SI/PC Hafiz Noor. Muhammad
2. SI/PC Hafiz Nadir Khan
3. SI PC. Hafiz Said Asghar ,
4. SUP Mukhtar,
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 j 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 SIs..If they had played any foul, the P.P.O, NWFP 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 he 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 he entitled to back-benefits as well.