JUDGMENT QAZI QAMARUDDIN MEMBER-I - The case of the appellant is that he has afflicted by penalty of forfeiture of approved service for one year second time on the same charges, vide impugned order dated 24.3.2010 of respondent No. 2, under Removal from Service (Special Powers)
Sindh Ordinance, 2000 [hereinafter referred to RSO 2000].
2. Necessary facts for the disposal of appeal are that the appellant is having 23 years of service in the Police department since his initial appointment as Driver Constable on 10.11.1987 in SRP till his promotion as confirmed SIP i.e.f. 1.6.2006 vide order dated' 18.12.2008. During appellant's posting as SIP, Investigation, P.S. North Nazimabad, Karachi he was assigned investigation of crime registered vide F.I.R. No. 232/2009, dated 13.5.2009 under Section 489(F), PPC ('Bouncing of cheque of Bank'), It is contended by the appellant that with the consent of the parties dispute was resolved as the complainant was paid the bounced cheque amount of Rs. 5,00,000/-. Under the circumstances appellant prepared a report under Section 497(B). Cr.P.C, and forwarded said report to DSP/SPO, North Nazimabad for necessary approval. After due approval/sanction of said report by DSP/SPO vide daily diary (Roznamcha) Entry No. 46, dated 19.5.2009 of P.S. North Nazimabad, Karachi appellant released the detained accused at 22.00 hrs. On PR Bond with undertaking that accused will ensure appearance before Police as and when required.
3. Above act of the appellant, annoyed respondent No. 2, who issued a show-cause notice dated 3.6.2009 (Annexure-B) under Section 3 of RSO, 2000 on the allegation that the appellant failed to investigate the matter which amounted to gross misconduct and that no enquiry was necessary.
Appellant was given seven days' time to reply to the said show-cause notice. The appellant in his reply denied the allegations. However, without waiting for the reply of the show-cause notice within period specified, SSP imposed major penalty of 'Reversion from Service' on the pre-signed order of the same date i.e. 3.6.2009 (Annexure-C), the date on which show-cause was issued by the said SSP.
4. In the meantime, accused (of bounced cheque crime) was challaned in the Court of Civil Judge and Judicial Magistrate-V, Karachi Central on 26.6.2009 and was acquitted on the ground of previous compromise vide Judicial Magistrate order dated 29.7.2009. Besides, departmental enquiry was ordered against appellant, to be conducted by SSP, New Karachi, who vide his report addressed to DIGP (Operation), West Zone, Karachi had cleared appellant from charges as nothing was proved against him. As a result thereof major penalty imposed on him was withdrawn vide order dated 10.3.2010 of respondent No. 2 (Annexure-G).
5. Again on 16.3.2010 vide impugned order issued by SSP- without any other cause, major penalty of "Forfeiture of approved service for one year" was imposed on the same charge in which appellant had already been exonerated by the order of said SSP dated 10.3.2010. Departmental appeal remained un-responded, hence the instant appeal under Section 4 of the Sindh Service Tribunal Act, 1973.
6. Respondents in their written statements have taken opposite view.
7. We have heard the parties, perused the material placed before us and the case-law. The Additional A.G. Has conceded to the appeal.
8. Perusal of the contents of the appeal portray very shabby picture inasmuch as it is in violation of the settled principles of natural justice and the well-defined and settled principles of law as propounded in the judgments of the superior Courts. Public functionaries are not supposed to pass order in arbitrary and capricious manner or in a fashion which may smack of victimization. [2004 PLC (C.S) 705] Dr. Imtiaz Ellahi Pirachi Vs. Govt, of Punjab and others. Similarly, public functionaries are duty bound to act in accordance with law. Law means not only the statutory law but also law declared by the Superior Courts. [Rel. Obyar and another Vs. Federation of Pakistan, PLD 1984 Lahore 162] and [2004 PLC (C.S) 1089, Muhammad Hanif Vs. Govt, of Punjab and others].
9. Honourable Supreme Court of Pakistan in an appeal against judgment passed by the Federal Service Tribunal, Islamabad in case of Shibli Farooqui Vs. Federation of Pakistan and others (2009 SCMR 281) has held (relevant para is reproduced below for convenience); "13. We are also conscious of well-recognized principle that when a decision is rendered by an administrative authority it is essential that an appropriate balance must be struck between the adverse effects which the decision may have on the rights or interests of the person concerned and the purpose which the authority is seeking to pursue, proportionately by now is a well- recognized concept of administrative law and this Court in the case of Independent Newspaper Corporation (Pvt.) Ltd. And another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others, reported in 1993 SCMR 1533 held as follows:-- 'The principle is well-settled that when express statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a restrain in operating that power, so as to exercise it justly and reasonably.
In the words of Seaman L.J. "excessive use of lawful power is itself unlawful.'"
Above narration with reference to the settled proposition of law suffices to opine that the entire recourse adopted by the respondent No. 2 was in utter discard to justice and to the law well- settled.
10. The appellant was awarded 1st major penalty of Reversion to his subsequent rank of 'Assistant Sub-Inspector' vide order of SSP dated 3.6.2009 which was subsequently withdrawn vide said respondent's order dated 10.3.2010. 2nd penalty of 'Forfeiture of one year service' was imposed on the basis of Same allegations as contained in the show-cause notice dated 3.6.2009 as no new proceedings had since been initiated, In this reply, appellant had already vehemently denied the charges, therefore, as a matter of fact and as required under settled law no resurrection of same closed episode was necessary at any cost. However, even if respondent No. 2 was not satisfied of his previous act of withdrawal of punishment order on 10.3.2010, he should have initiated regular inquiry, for arriving at just and proper conclusion. Such enquiry being mandatory in the circumstances was omitted. Reference may be made in this behalf to the following cases:-- Nawab Khan and another Vs. Govt, of Pakistan, through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222); Dy. Inspector General of Police, Lahore Vs. Anis-ur-Rehman's Khan (PLD 1985 SC 134); Alamgir Vs. Divisional Forest Officer, Multan and others (1993 SCMR 603); Asghar Ali Vs. General Manager, Pakistan Railways, Lahore (2005 PLC (C.S) 144 L&S.C Key Law Reports Vol. X.
1568) and Suhail Ahmed Siddiqui Vs. Director, N.I.C.H., Karachi and another (2005 PLC (C.S) 1574.
11. We have no hesitation to hold that respondent No. 2 seems determined inflict major punishment at any cost on the appellant and opted shorter recourse of mere show- cause notice under Section 3 of the RSO, 2000. It is an apparent paradox that show-cause notice was issued on 3.6.2009 with 7 days' time to reply whereas punishment order was also issued on the same day (3.6.2009).
In the above-stated circumstances-, we are of the considered opinion that the action against the appellant fits under the terms of mala fide and malice, 2nd major punishment order reflects same attitude of the authority. Unfortunately it had been attempted clumsy, to opt fast track, determined to punish appellant at any cost on a single stroke of the order ignoring all the defined principles of administration of justice, It appears that there was a mindset to punish the appellant come what may.
12. In the backdrop of the facts, we have also no hesitation in or mind to say that the case of appellant falls within the definition of the phrase of 'Double Jeopardy', vexing the appellant twice on the same charges in which he was already exonerated. Therefore, impugned order could not be sustained on this score also. [Reliance: Director General (Field) Agricultural Deptt., Lahore and another Vs. Haji Abdul Rehman's, reported as 1989 SCMR 1224); Syed Shah Sarwar Vs. K.E.S.C. (2005 PLC (C.S) 614); 2006 PL (C.S) 1352 (Mrs. Lubna Asif Ayub Vs. President Pakistan (F.S.T.).
13. For the foregoing reasons appeal is allowed. The impugned order dated 16.3.2010 is set aside with the orders for deletion of entries in the 'Service Roll' of the appellant, if any. Parties shall bear their on costs.
14. Appeal was allowed by or short order dated 22.12.2010. Above are the reasons there for.