1. MUSHTAK ALI KAZ1 (CtialasaN).-The appellant a Head Constable of Police has been awarded the punishment of compulsory retirement under the Sind Civil Servants (Efficiency and Discipline)
2. Rules, 1973, by Superintendent of Police, City Division, Karachi. He has accordingly preferred this appeal under section 4 of the Sind Service Tribunal Act, 1973.
3. The facts in brief are that the appellant was recruited as a Constable in Karachi Police in the year 1948. In 1971 he was promoted as a Head Constable and at the time of the proceedings, he was posted at Napier Police Station. A complaint of one Mr. Samad against S.H.O. Frere Police Station was referred by Inspector-General of Police, Karachi to Superintendent of Police, Civil Lines Division for enquiry and report. The Superintendent of Police asked the A.S.P. Frere Sub-Division to probe into the allegations. The complaint was found to be pseudonymous but the allegations against the Sub-Inspector that he was mixed up with pimps and touts for supplying gay girls from red light area to Indus Hotel and certain other Hotels -at the Area was found correct. The Superintendent of Police, Civil Lines in his confidential report to the Inspector-General of Police incidentally mentioned that a raid was organized by the A.S.P. And two cars abandoned by the pimps which were used for transportation of the gay girls were seized. One of these ears belonged to Raja Mohammad Akram brother of Head Constable 4127 Raja Inayat (the appellant) who was working in the Special Staff of Napier Police Station and who assisted in supply of gay girls reportedly In collusion with Head Constable Allah Ditta. Head Constable Raja Inayat had approached Civil Lines Police Station for the release of his brother's vehicle. That the mention of the name of Head Constable Inayat by low morale persons indicated that he was acting as a supplier and the conduct of the Head Constable adversely affected the prestige of the Department.
4. On the above report which was kept confidential Superintendent of Police, City Division, Karachi served appellant Head Constable Mohammad Inayat with a show-cause notice dated 22nd August, 1978. All that is mentioned in the show-cause notice is that on enquiry it has been established that the said Head Constable supplied prostitutes from Napier Road to big hotels and was mixed up with pimps. In a raid a car belonging to Mohammad Akrarn his brother used for taking prostitutes had been seized and the Head Constable had approached S.H.O., Civil Lines for the release of the said car. That this act amounted to gross misconduct calling for infliction of one of the punishments prescribed in the Rules.
5. The appellant in his reply denied the allegations as baseless and asked for a copy of the enquiry report of Superintendent of Police, Civil Lines and the material on which the said report was based to enable him to defend his case.
6. It appears that no such material was supplied to the appellant but an order was passed by the Superintendent of Police dated 11th July, 1978 basing his finding on the aforesaid report that the Head Constable was mixed up in the supply of prostitutes to the hotels and the Head Constable was accordingly retired compulsorily with effect from 10th July, 1978.
7. Head Constable Mohammad Inayat then preferred an appeal to the Deputy Inspector-General of Police but it was dismissed by an order dated 4th May, 1978.
8. It has been argued by Mr. Manzoor Ali Khan on behalf of the appellant that the allegations contained in the show-cause notice are vast and indefinite. The statement of allegations containing full particulars and material forming the basis of the allegations had not been supplied to the appellant to allow him an opportunity to effectively defend himself. Even the copy of the report of the Superintendent of Police, Civil Lines containing the remarks and observations against him had not been supplied to him so that he could refute the charges. Lastly the show-cause notice did not mention the action proposed to be taken, i,e, the specific penalty proposed to be inflicted on the appellant and this had prejudiced him and vitiated the entire proceedings.
9. Mr. Hassan Akbar, A.A.-G, has hardly been able to meet the above arguments of the defence counsel. The A.A.-G. Has admitted that the report of the enquiry forming the basis of the allegations should have been supplied to the appellant to enable him to prepare his defence, He has also admitted that the allegations in the show-cause notice contained a vague charge of being mixed up without mentioning the particulars of date, time and place or the name of any prostitute.
10. The action in this case had been initiated on a pseudonymous Complaint against S.H.O. Frere Police Station and the appellant had possibly involved himself for trying to help his cousin, whose car had been seized. For holding the opinion that the appellant was mixed up in supply of prostitutes, no evidence has been indicated in the report of the Superintendent of Police. The appellant was not aware of either the report or any evidence as the grounds of action had not been supplied to him. The enquiry was against the S.H.O. Concerned and mention of the name of the Head Constable in the report alongwith certain other names had resulted in his retirement.
11. Admittedly no separate enquiry had been conducted regarding complicity of the appellant and the appellant had no opportunity to cross examine any witnesses nor refute the allegations.
12. The law and the rules applicable to these facts are very clear and it may be pointed out that in cases where an enquiry has been dispensed with, the rules and procedure should be followed strictly so that no prejudice is caused to an accused person in conducting his defence. Under rule 5
(3) (a) and (b) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973 the Authorised Officer shall by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of action : and give him a reasonable opportunity of showing cause against that action. The requirements contained in this sub-rule have been interpreted by the superior Courts from time to time for the guidance of the Government Departments. It has been emphasized in A those decisions, that in the show-cause notice full particulars of the allegations and the grounds for such allegations must be given and the charges should not be vague. The material being the basis for the charges should be supplied to the accused so that he can prepare his defence. The specific penalty proposed to be awarded must be mentioned in the show-cause notice so that no prejudice is caused to the accused.
13. In La! Mohammad and another v. Government of Sind , it was observed by Dorab Patel, acting C. J., (as he then was) that where Authorised Officer dispenses with the enquiry he is bound to give full particulars of the charges against the officials concerned. Where the Authorised Officer merely informs the accused of allegations against them without giving any grounds for those allegations, the show-cause notices would be in flagrant violation of the mandatory provisions of sub-rule (3) of rule 5 and, therefore, illegal and on this ground alone the proceedings instituted against the appellant would have to be set aside. On the point of the charges being vague, it was observed in that decision as under "We would pause to point out that the complete vagueness of the charges against the appellants is all the more disturbing because the charges had been framed according to the leatned Additional Advocate-General, after the enquiry committee had submitted its report. Therefore, the conduct of the Government in issuing such a vague show-cause notice in most unfortunate. Be that as it may, reverting to Mr. Ralsimtoola's submission, it is obvious from the observations which we have quoted that the Enquiry Committee's report was part of the material on the basis of which the appellants had been dismissed. But, as they had never participated in this enquiry, as they had never been confronted with this report and as its author had not been made available for cross- examination, on this ground also, the view taken by the Tribunal is illegal."
14. On the question of supplying statement of allegations the decision of the Service Tribunal Baluchistan 1978 PLC (C.S.T.) 44 appears to be appropriate. The head note reads as under : "Simple show-cause notice served on accused without supplying him statement of allegations- Accused entitled to statement of allegations even when only a show-cause notice served- Reasonable opportunity of showing cause against proposed action, held, could not be said to have been given on failure to supply statement of allegations."
15. Likewise it was held by Punjab Service Tribunal (1979 PLC (C.S.T.) 129) charges of allegations must be specific and speaking. Vague and non-specific charges tantamounts to denial of reasonable opportunity to defend, Vitiating the whole proceedings.
16. The omission to mention specific penality proposed has also been held to be fatal in such proceedings. In PLD 1976 Lahore 1013, it was observed by Shafi-ur-Rehman, J. As under : "It will therefore, be clear that the competent authority itself remained undecided about the specific penalty that he proposed to inflict and at no stage did it make it clear or call upon the petitioner to show cause against that specific proposed penalty. In such a situation there was not only non-compliance with the rules but even the show-cause procedure has not been observed in a manner to afford a meaningful and substantial opportunity to the petitioner to show cause against the penalty that was to be imposed. This defect vitiates the order of the competent authority and all the subsequent orders passed affirming that order. The petition is accepted with costs. The order of the Superintendent of Police, Sheikhupura, dated 24th July, 1972 is declared to be without lawful authority and of no legal effect :"
17. This was followed by Federal Service Tribunal in case of Abdul Ghafoor Lind observing that the requirement of reasonable opportunity of showing cause against proposed action will only be satisfied if particulars of charge or charges, substance of evidence in support of charges and specific punishment which would follow after the charges are established are communicated to the civil servant.1 2 It is an admitted fact that the appellant had not been given full particulars of the charges nor informed about the evidence in support o 8 those charges and eved the copy of the report of the Superintendent o Police on which the action was based had been withheld from him. This would amount to denial of natural justice as observed by S.A. Smith, in his well-known Treatise "Judicial Review of Administrative Action", 3rd Edition" commenting on the scope of the audi alteram pattern rule, the author remarks : "If prejudicial allegations are to be made against him, he must normally be given particulars of them so that he can prepare his answers. If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by, it, there is prima facie a breach of natural justice".
18. In view of these legal infirmities which cannot be lightly passed over, the order of compulsory retirement passed against the appellant is set aside and the appeal is allowed. The appellant may be reinstated in service with all the consequential benefits. But it shall be open to the department to direct a fresh enquiry, complying with the law and rules giving the appellant an effective opportunity to defend himself.
19. No order is made as to costs under the circumstances of the ease. 1980 SCMR 850 1980 PLC (C. S.) 344