' QALANDAR ALI KHAN (CHAIRMAN).--- Since the appellant in the instant appeal, namely, Ejaz, Ex Head Constable, and appellant in the connected Appeal No,504 of 2010, Muhammad Arshad, Ex Head Constable, were proceeded against departmentally on the same charge, and dismissed from service through a joint order of the District Police Officer Nowshera (respondent No,1) and subsequently compulsorily retired from service by the appellate authority i.e, Capital City Police Officer Peshawar (respondent No,2), vide a single order dated 10-2-2010, this single judgment in the appeal in hand is also directed to dispose of the said connected appeal by Muhammad Arshad.
2. The appeals would show the appellants having been charged for misconduct in the letter dated 1-7-2009 of the Inter Services Intelligence (ISI) addressed to Secretary Home and Tribal Affairs Department regarding an incident on 21-6-2009 with a lady, namely, Mst. Bushra wife of Rajwali, a civilian labour at Military Dairy Farm, Nowshera, respondent No,1 initiated disciplinary proceedings against them and appointed an Inquiry Committee comprising Mr. Imran Kishwar ASP/HQrs: and Mr. Hidayat Shah Inspector Legal, Nowshera. The appellants were served with charge sheet and statement of allegations and after conclusion of inquiry, and on the basis of recommendations of the Inquiry Committee, the appellant, were dismissed from service by respondent No,1 vide impugned order dated 15-7-2009. It is alleged by the appellants that another inquiry was also concluded into the incident by the D.I.-G. Of Police (Inquiry and Inspection), who submitted his report on 21-7-2009, thereby exonerating both the appellants of the charges and recommending filing of disciplinary proceedings. Against the impugned order of their dismissal from service, the appellants preferred departmental appeals/representations to respondent No,2, who converted the penalty of dismissal into that of compulsory retirement vide his order dated 10-2-2010.
Aggrieved from the said order, the appellants preferred separate appeals, inter alia, on the grounds that they have not been treated in accordance with law and rules and that no regular inquiry was conducted, therefore, the entire proceedings were void ab initio. The appellants further alleged that they were condemned unheard and no fair opportunity of defence has been provided to them, which was mandatory, and non-compliance with which has rendered the entire proceedings illegal. They maintained that they have been exonerated from the charges in the second inquiry conducted by the D.I.-G. Of Police (Inquiry and Inspection).
3. The appeals were resisted by the respondents on several legal and factual grounds, including the one with regard to the service record of the appellants, showing award of penalties to them in the past as well. The respondents also defended the impugned orders on the ground of the same being based on valid grounds and result of proper and legal proceedings concluded against the appellants.
4. The appellants filed rejoinders to the written replies/comments of the respondents, where-after arguments of the learned counsel for the appellants and learned A.A.-G. Heard and record perused.
5. The record would reveal a very serious charge of molesting the wife of a labourer against both the appellants as well as their companion, namely, Said Rehman, when they were on duty at Azakhel Bus Stop Nowshera en 21-6-2009. The departmental proceedings against them and their said companion were initiated on the basis of letter of ISI dated 1-7-2009. The authority i.e, respondent No,1 served them with charge sheet and statement of allegations, and constituted Inquiry Committee, comprising Mr. Imran Kishwar ASP/HQrs. And Mr. Hidayat Shah, Inspector (Legal) Nowshera for conducting inquiry in accordance with the provisions of N.-W.F.P. (Khyber Pakhtunkhwa) Removal from Service (Special Powers) Ordinance, 2000, which, after holding inquiry, recommended the imposition of major penalty of dismissal from service on both the appellants, and also recommended forfeiture of 2 years approved service and stoppage of increments for two years in respect of the third accused-official namely Said Rehman No,1044. The appellants have assailed the impugned order regarding their dismissal from service on the grounds that departmental/inquiry proceedings were not conducted in accordance with law, that they were not provided opportunity of defence and personal hearing and that they were exonerated from the charges in the second inquiry conducted by the D.I.-G. Of Police (Inquiry and Inspection).
6. As regards the ground of exoneration of the appellants in the second inquiry by the D.I.-G of Police (Inquiry and Inspection), suffice it to say that the appellants have been awarded the major penalty of dismissal from service vide order dated 15-7-2009 on the basis of recommendations of the Inquiry Committee submitted to the authority prior to the impugned order, whereas report into the incident was submitted by the D.I.-G. Of Police (Inquiry and Inspection) to the PPO afterwards on 21-7-2009. Therefore, the report submitted to the PPO after the impugned order was not taken into consideration by the authority for obvious reasons.
7. Having said that, the findings of the Inquiry Committee would show the same based on "some discreet and detached witnesses", which, legally, cannot form basis for disciplinary action against a government servant, though it can lead to regular and proper, departmental proceedings under the law against a government servant. As such, the inquiry proceedings do not contain statements of those 'witnesses' who had deposed about the incident of sexual harassment and rape and also compromise between the parties after the incident, on payment of Rs,45000, which was cited as the reason for change/retraction of statements by the lady and her husband; and even, during hearing of the appeal, when directed, the respondents could not produce any statement of the so- called witnesses or report, lending support to the findings of the Inquiry Committee. Mr. Hidayat Shah, Inspector (Legal) Nowshera, a member of the Inquiry Committee, who also appeared in the case as representative of the respondents, when confronted with the situation, candidly admitted that no such statements were recorded by the Inquiry Committee and findings were based on result of discreet inquiry. Therefore, both the authority and appellate authority fell into error while relying on the findings of the Inquiry Committee, which were not based on any evidence whatsoever.
8. In view of the divergent conclusion arrived at by a senior officer of the rank of D.I.-G of Police (Inquiry and Inspection), together with above stated flaws/discrepancies in the conduct of departmental/inquiry proceedings and also the fact that both the lady and her husband did not support the earlier complaint in totality, there appears a need for a de novo departmental proceeding in order to meet the ends of justice. Had this been a case of ordinary misconduct, the conclusion might have been different, but in view of serious charge against personnel in uniform while on duty, and also in view of the fact that a lenient view has been taken by the appellate authority by converting the penalty of dismissal from service into that of compulsory retirement, there, indeed, appears no more room for showing further leniency.
9. Consequently, both the appeals are partially accepted and by setting aside the impugned orders dated 15-7-2009 and 10-2-2010, the appellants are reinstated in service, with direction to the respondents-department to conduct a de novo inquiry in accordance with law and in the light of above observations, within three months. As the appellants were dismissed from service as a result of departmental proceedings, they shall remain suspended during the inquiry.
10. Before parting with the judgment, we would like to observe that in spite of his questionable role in the incident, the conduct of the S.H.O. Concerned has been totally over-looked by the Inquiry Committee as well as by the authority and the appellate authority. Therefore, we would also direct a probe into his role during de novo departmental proceedings, and appropriate disciplinary action if found guilty of misconduct.
11. The appeals are disposed of accordingly, with no order as to costs.