' MRS. AKHTAR A. CHOUDHRY (MEMBER).--- This appeal is directed against the original impugned order, dated 10-7-2006 passed by respondent No,1 awarding major penalty of dismissal from service to appellant and appellate order dated 26-4-2010 passed by respondent No,2 rejecting appellant's departmental appeal.
2. Appellant while posted as Police Constable at Police Headquarters, South Zone, Karachi was involved and apprehended in Crime No,131/2005 under sections 468, 471, P.P.C. Registered at Police Station, Zaman Town. He was thus proceeded against departmentally under the provisions of Sindh Police (E&D) Rules, 1988, and served with a show-cause notice dated 16-7-2005 issued by respondent No,1, containing following allegation:--- "As per report of Platoon Commander P/05, PHQ, Garden Karachi, you absented yourself from Govt.
Duty without any intimation or permission, w.e.f, 8-7-2005, later on it is come to the notice, that you were involved/arrested in case F.I.R. No,131/05 under sections 468/471, P.P.C. Of Zaman Town Police Station, Korangi Town on 10-7-2005."
3. Appellant failed to submit reply to the above show-cause notice. He was then served with final show-cause notice dated 13-8-2005 which he replied. Before culmination of said disciplinary proceedings, appellant was served with yet another show-cause notice dated 6-5-2006 issued by respondent No,1, alleging therein that; "You were involved/arrested in case F.I.R. No,199/06 under sections 170/171/420/468/471/34, P.P.C. Of Darakhshan Police Station Clifton Town CCP, Karachi, your involvement in such type of case proves that you are a criminal minded police person who defames the image of the department and general public."
4. On the same set of allegations the D.I.-G.P. South Zone (Respondent No,2) also issued show- cause notice dated 6-5-2006, which reads as under; "From the perusal of press clipping from "Daily News" dated 29-4-2006, it has been found that Darakhshan Police arrested so called cop, while he was trying to loot a couple at sea view, whose name was later on knowing as Jaffer. On his pointation, you were arrested by the Darakhshan Police as you have given him an appointment letter of Police after taking Rs,20,000. Hence, a case vide F.I.R. No,191/2006 under sections 170, 171, 420, 468, 471, 34, P.P.C. Has been registered against you at Police Station Darakhshan. Being a member of Police Force, your involvement in criminal case is highly objectionable."
5. In his replies to the said show-cause notices, appellant denied the allegations and professed his innocence. His reply was not found satisfactory, resultantly appellant was awarded major penalty of dismissal from service vide order dated 10-7-2006 by respondent No,l. Feeling aggrieved, appellant filed departmental appeal but same was dismissed by respondent No,2 per order dated 26-4-2010.
6. In their separate written statements, the respondents denied the averments raised in memo of appeal and prayed for dismissal of appeal.
7. Mr. Jamil Ahmed Rajpar, learned counsel for the appellant argued with vehemence that original as well as appellate orders were passed in utter violation of the mandatory provisions of law. He contended that allegations levelled in the show-cause notice were serious which the appellant denied vehemently but no regular inquiry was either ordered or conducted inasmuch as even the reasons of dispensing with regular inquiry were not mentioned in any of the show-cause notice, there was thus violation of principles of natural justice. Learned counsel submitted that the only allegation against the appellant was his involvement in criminal cases but without conducting regular inquiry or without waiting for the outcome of said criminal cases, the respondent No,1 was not supposed under the law to award any kind of A penalty to the appellant, therefore, whole disciplinary proceedings initiated and culminated against appellant were neither maintainable nor sustainable.
On the allegation of appellant's absence from duty without prior permission, learned counsel argued that although absence was neither intentional nor wilful but it was the result of the circumstances which were beyond his control as appellant was confined in jail and it was practically impossible for him to perform his duties, yet the said period of absence of appellant from duty has already been regularized by treating the same as leave without pay, therefore, such absence could not been made the basis for awarding major penalty of dismissal from service.
Learned counsel urged that appellant has already been acquitted from both the criminal cases by separate judgment and order dated 16-5-2009 and 29-8-2009 respectively by the concerned courts of law and copies of both such orders were produced before the respondent No,2 but same were not given due weight and consideration and that since the appellant has been acquitted the very basis to hold the appellant guilty of misconduct stands washed out. In the end, learned counsel submitted that disciplinary proceedings against appellant were commenced through show-cause notice dated 16-7-2005 issued under the provisions of the Sindh Police (E&D) Rules, 1973 although at the relevant time the Removal from Service (Special Powers) Sindh Ordinance, 2000 was already promulgated, and per section 11 of Ordinance of 2000, the same being overriding effect the whole disciplinary proceedings initiated and culminated against appellant were bad in law and are not sustainable. Mr. Rajpar added that per impugned order the main reason of appellant's dismissal from service was that of production of fake or forged acquittal order but in none of the show-cause notice such allegation was levelled against the appellant, therefore, on this score also the impugned orders being illegal are liable to be set aside. Further to amplify his submissions as to the procedural lapses and its consequences Mr. Rajpar has referred to the following case law:---
(1) Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232,
(2) WAPDA v. Jehangir Khan 1999 PLC (C.S.) 423,
(3) Saeed Ahmed Khan v. AJ&K Government and others, 1996 PLC (C.S.) 439,
(4) Ahmed Kammal v. Pakistan Central Cotton Committee and others 2064 PLC (C.S.) 1591,
(5) Naveed Ahmed v. Board of Governors, Cadet College Pallandri and others 2006 PLC (C.S.) 1001,
(6) 2001 PLC (C.S.) 86,
(7) 1998 PLC (C.S.) 1430,
(8) Attaullah Shaikh v. WAPDA and others 2001 SCMR 269,
(9) Shamsuddin Khawaja v. Government of Pakistan and others 2003 PLC (C.S.) 814,
(10) Rashid Mehmood v. Additional Inspector-General of Police and others 2002 SCMR 57,
(11) Muhammad Sardar v. Senior Member, BOR (Estt.) Punjab and others 1985 SCMR 1062,
(12) 1996 PLC (C.S.) 452,
(13) Lahore Development Authority v. Muhammad Nadeem Kachilo and others 2006 SCMR 434,
(14) Saleh Muhammad v. WAPDA 1985 PLC (C.S.) 478,
(15) Abdul Bashir v. Government of Balochistan 2001 PLC (C.S.) 771,
(16) 1997 PLC (C.S.) 929 and
(17) S.A. Rizvi v. Islamic Republic of Pakistan and others 1991 MLD 1834.
8. While concluding his arguments, learned counsel submitted that appeal may be allowed and appellant may be reinstated into service with all back and consequential benefits as appellant all along during the period he remained out of service remained idle and not gainfully employed anywhere.
9. In rebuttal, Mr. Muhammad Bachal Tunio, learned Additional Advocate-General while referring the written statements filed separately on behalf of respondents half-heartedly supported the original as well as appellate impugned orders. He submitted that appellant was involved in criminal activities and committed several fraudulent acts and forgeries and being a blacksheep in the department he was rightly awarded major penalty of dismissal from service and that appellant is not entitled to reinstatement into service and appeal may be dismissed.
10. We have considered the above submissions thoroughly perused the material placed on the record and have minutely gone through the case law referred to by learned counsel for appellant.
11. The only charge against appellant in the above referred show-cause notices was that of his involvement in criminal cases. In such circumstances, per law there were two options available with respondent No,1 i.e, firstly to order for holding regular departmental inquiry per law or secondly to wait for the final outcome of the criminal cases pending in the concerned Court of law. The respondent No,1, however, neither ordered for conducting regular inquiry nor awaited the result of the criminal cases but merely on the basis of show-cause notices and its replies awarded major penalty of dismissal from service to the appellant, which action on the part of respondent No,1 was in sheer violation of the principles of natural justice. The respondent No,1 dispensed with the regular enquiry for which he was bound to record reasons in writing showing his satisfaction as to absence of need for holding an inquiry but admittedly no reason for dispensing with the requirement of an inquiry had been recorded. In the case of Muhammad Haleem and another v. General Manager (Operations) Pakistan Railways Headquarter, Lahore and another 2009 SCMR 339, it was held that; where the allegations, charges and misconduct is of the nature requiring production of evidence to prove the same then holding departmental inquiry is necessary and dispensation thereof cannot be made as there would be no evidence or material in possession of the department to establish and prove the charge/allegations of facts, and civil servant proceeded would be deprived of his right to defend himself it may be stated that Maxim "audi alteram partem" is applicable to judicial as well as non-judicial proceedings. Violation of principles of natural justice equated with the violation of provisions of law. Action taken in violation of law is without lawful authority and of no legal effect. Reference is invited to the cases of Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232 and WAPDA v. Jehangir Khan 1999 PLC (C.S.) 423. Per law in case of major penalty proposed to be imposed on an accused civil servant for serious allegations which are denied by the employee, regular inquiry is mandatory providing such employee an opportunity of cross-examining the witnesses against him as also allowing him to put up his defence. It is obvious that the respondents had not done so and major penalty was imposed on the appellant without holding any regular inquiry into the allegations levelled against him. Reference is invited to the case of Ahmed Kamal v.
Pakistan Central Cotton Committee and others 2004 PLC (C.S.) 1591. It appears that respondent No,1 while awarding major penalty of dismissal from service to appellant had relied upon the investigation conducted by police in the said criminal cases before submission of challan and such action on the part of respondent No,1 by no stretch of imagination can be termed as legal and proper.
12. Admittedly no regular inquiry was conducted and in such eventuality the respondent No,1 was legally bound to wait for the final outcome of the criminal cases pending in the competent court of law, but without waiting for such outcome the appellant was awarded major penalty of dismissal from service. Appellant faced the criminal proceedings before the concerned competent courts of Law and has been acquitted and such judgment and order of acquittal were also produced by him before the respondent No,2 which were to be given due consideration but instead the same were ignored which act on the part of respondent No,2 is absolutely illegal and unwarranted by law.
Under the law where the criminal charges are not established before competent court of law and the accused is acquitted on those specific charges, the departmental proceedings exactly on the same charges would be wholly irrelevant and unjustified. Reference is invited to the case of Attaullah Shaikh v. WAPDA and others 2001 SCMR 269. This view was followed by the Supreme Court in the case of Shamsuddin Khawaja v. Government of Pakistan and others 2003 PLC (C.S.) 814.
Besides, in the case of Rashid Mehmood v. Additional Inspector-General of Police and Others 2002 SCMR 57, it has been observed that; there is no denial of the fact that if departmental authority had held the petitioner guilty as a result of regular inquiry, if had been conducted by them, then the petitioner could not plead that having been exonerated by the criminal court, the departmental authority was not competent to discharge or remove him from service. However, as pointed out earlier, the departmental authority failed to conduct any regular inquiry against the appellant, and it had, therefore, no basis to hold the appellant guilty of misconduct. Since the appellant has already been acquitted from both the criminal cases the very basis on which order of his dismissal from service stands; would disappear, resultantly the order of dismissal itself will be rendered ineffective and liable to be set aside.
13. Perusal of the original impugned punitive order dated 10-7-2006 reveals that the main reason of appellant's dismissal from service was that he had produced an acquittal order of Court which on verification from the concerned Court was found bogus/forged as the case was still pending in the concerned court of law. It is very surprising that in the show-cause notices referred to above there was no such allegation leveled against the appellant. It is thus clear that impugned order was passed in a slip shod, whimsical and ordinary manner and is not sustainable in law.
14. The other reason of appellant's dismissal from service was that he remained absent without prior permission/approval. Be that as it may but the fact remains that the said leave period has already been regularized through the impugned order itself by treating the same as leave without pay, therefore, the absence of appellant could not have been made a ground for awarding major penalty of dismissed from service. It amounted to double jeopardy not permissible under law. It may be stated that even the period during which appellant remained under suspension has so been treated as leave without pay. The impugned order was thus passed in a whimsical and capricious manner with applying mind even for a little while. In the case reported as KLR 1995 L&S.C.
89, it was observed that; the impugned order indicating that the appellant's absence was treated as leave without pay and thus he was made to suffer pecuniary loss and on the other hand he was penalized for same charge by awarding major penalty of dismissal from service. It seemed that the period of absence was regularized by treating the same as leave without pay and on the other hand despite this regularization the major penalty of dismissal was given to the appellant, for which no proper foundation has been laid down. Similarly in the case of L.D.A. And others v.
Muhammad Nadeem Kachilo and another 2005 SCMR 43, it has been observed that; Per settled law when the period of absence stood regularized by the same authority who had passed orders of dismissal of the appellant from service through grant of leave without pay, then the very ground for ousting the appellant from service had vanished. It may be stated that in this case the honourable Supreme Court issued notice to the authorities to explain as to why costs be not imposed upon them for filing frivolous petition, knowing well that the competent authority had treated the period during which the civil servant remained absent, as leave without pay.
15. From the appellate order dated 26-4-2010 passed by respondent No,2 it transpires that an inquiry was said to have been conducted by the Superintendent of Police, Jamshed Town, Karachi who submitted his report which was made basis of rejection of departmental appeal. There is, however, nothing on the record to indicate that appellant was ever called to participate in the said inquiry or the copy of the said inquiry report was supplied to him inasmuch as the copy of said inquiry report has not even produced before this Tribunal. In any case if there was any inquiry the same at the most can be termed as a fact finding inquiry, which per se has no legal, value and on the basis of the same no penalty of whatsoever nature can be awarded to any one. In this regard we may refer the following case-law;
(1) Examination of the witnesses in the absence of the appellant would clearly amount to denial the appellant a reasonable opportunity to defend himself which vitiated the entire proceedings and the impugned order passed thereon.
' Saleh Muhammad v. WAPDA 1985 PLC (C.S.) 478 (1-A) It is an established principle of law that if Statute requires a thing to be done in a particular way, it must be done by the authority in the manner as prescribed by the Statute else departure from the Rules will invalidate the thing done in the manner of other than the prescribed by the Rules.
' Abdul Bashir v. Government of Balochistan 2001 PLC (C.S.) 771.
(2) Report of fact-finding committee cannot be made a ground for condemnation of the appellant and further that onus of proof lies on the departmental authority to show that the inquiry was conducted perfectly in accordance with the rules on the subject. Khalid Naveed v. Member Admn.
Chairman P.A.E.C, Islamabad 2000 PLC (C.S.) 857 and Ahmed Kamal v. Pakistan Central Cotton Committee and others 2004 PLC (C.S.) 1591.
(3) It is settled principle of law that nature and conduct of departmental inquiry is not a confidential matter but record must show involvement and association of accused civil servant with commissioned misdeeds. Enquiry proceedings #re of judicial nature in which participation of accused civil servant as per law condition sine qua non for the reason that departmental authority is the first stage of judicial proceedings which must be conducted strictly in accordance with requirements of law and not whimsically. Examination of witnesses must be in presence of accused civil servant during inquiry proceedings. 1997 PLC (C.S,) 929.
16. NOW We deal with the last submission of learned counsel for appellant that in presence of Removal from Service (Special Powers) Sindh Ordinance, 2000, the proceedings initiated and culminated against appellant under the provisions of Sindh Police (E&D) Rules, 1988 were neither competent nor legally maintainable. We are in full agreement with this contention that per section 11 the Ordinance of 2000, takes precedence over other laws. Therefore, the proceedings initiated and culminated against the appellant under the law which was not applicable at that relevant time, have no legal value and sanctity in the eyes of law. If any case-law is needed, reference can be made to the case of Azizullah Memon v. Province of Sindh and another 2007 SCMR 299.
17. The upshot of the above discussion is that this appeal is allowed, the impugned orders are set aside and the appellant is directed to be re-instated into service from the date of dismissal from service with all' back and consequential benefits. There shall be no order as to costs.