1. MUSIITAK ALI KAZI (CHAIRMAN). - This is an appeal under section 4 of the Sind Service Tribunals Act, 1973, filed against the order of dismissal passed by Senior Superintendent of Police, Sukkur in respect of the appellant who was serving as a Sub-Inspector of Police at that time.
2. The appellant joined the Police Department on 1st October, 1974 in Larkana District as Prosecuting Sub-Inspector of Police. From 25th September, 1975 appellant was transferred from prosecution to regular branch. On 6th April, 1979 the appellant was posted as S. H. O., Stuart Gunj Police Station, Shikarpur. On that day on account of agitation due to death sentence having been imposed on Mr. Z. A. Bhutto, some disturbance was expected in the town. The appellant was accordingly deputed with 10 Police constables to remain in the area at Nathi Gate to assist the S. H.O. Of Nathi Gate Police Station. The appellant was placed on duty near the house of the Administrator Municipal Committee, Shikarpur in the area of Dhoong Hospital. As expected a mob armed with brickbats and bent upon committing mischief was found advancing towards that area. The appellant was hardly prepared to face the mob. He was not armed with any service revolver and out of his 10 constables only two were armed with a rifle and a shotgun. The appellant who was on his Motorcycle left the place without placing the 10 constables under the command of any other Incharge Officer. The constables took shelter and remained passive with the result that the mob received further encouragement. They entered the house of the Administrator and also Dhoong Hospital and committed acts of mischief and hooliganism destroying property.
3. The appellant by an order of the Deputy Inspector-General of Police was transferred from Shikarpur District to Sukkur District with effect from 12th June, 1974 and the Senior Superintendent of Police was asked to proceed against the appellant departmentally for major penalty of removal for his cowardice and unsatisfactory working while posted at Shikarpur.
4. On 1st August, 1979 the appellant was served with a show cause notice under rule 5(3) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973. He was called upon a show cause why any of the penalties prescribed under rule 4(1) of the said rules may not be imposed upon him for acts of misconduct, inefficiency and cowardice. The, charge was that on 6th April, 1979 he was deployed with a platoon of 1-10 at Nathi Gate Shikarpur to avert a trouble. A frocious mob ransacked the house of Administrator Municipal Committee Shikarpur at a distance of 200 paces from the place of his posting. Instead of bravely encountering the mob he left the place on the excuse of getting additional force. In the absence of Commander the Police force left behind remained passive with no one to activate them. He thus (i) deserted and failed to face the situation bravely, (ii) did not take precautions to equip himself with teargas and shotgun, (iii) did not even carry the service revolver, and (iv) he failed to meet the eventualities of this situation.
5. ' Before any action could be taken on the above show-cause notice, a circular letter was issued to all Heads of Police Officers in Sind dated 15th August, 1979 drawing attention to the notification of Government of Sind, Services and General Administration Department dated 11th August, 1978 that all fresh departmental cases initiated on or after 11th August, 1979 should be kept pending till the receipt of revised Chapter-XVI of Police Rules as the Sind Civil Servants (Efficiency and Discipline)
6. Rules, 1973, were no more applicable in respect of Police personnel of the rants from constables to Inspectors. The notification referred to in the circular letter dated 11th August, 1979 also provided that with immediate effect the subordinate Police Officers upto the rank of the Inspector shall stand excluded from the purview of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and be governed by the Police Rules.
7. However, even in this case which pertained to the incident of 6th April, 1979 and in respect of which the proceedings had been initiated under the Efficiency and Discipline Rules, 1973, the revised Police Rules were follovc and a charge-sheet dated 3rd October, 1979 was served on the appellant mentioning the allegations and calling upon him to submit his explanation as to why he should not be awarded major punishment. Additional Superintendent of Police, Sukkur was appointed Enquiry Officer. On getting the explanation of the appellant, the enquiry was proceeded with and witnesses were examined. The appellant filed his final written statement. The Enquiry Officer then submitted his report dated 4th December, 1979. It was observed in the report that the appellant should have gone well prepared while leaving his police station to meet the eventualities of the situation. That he could have taken his gas gun issued to Stuart Gunj Police Station if the same was not available at the Foujdari Kot. That he should not have at all left the site under any circumstances as he was Commander of the section and he should have deputed someone else for obtaining reinforcement. That he had shown cowardice by deserting his post instead of facing the situation bravely.
8. A final show-cause notice was then issued by Senior Superintendent of Police, Sukkur alongwith copy of the findings of the Enquiry Officer dated 31st December, 1979 and the final order was passed dated 1st January, 1980 dismissing the appellant from service with effect from 1st January, 1980.
9. It has ber-1 argued by Mr. Niamatullah Qureshi, on behalf of the appellant that the report of the Enquiry Officer is based on presumptions rather than on evidence. He has then pointed out the irregularities in the procedure namely, that the proceedings were initiated under the Efficiency and Discipline Rules, 1973 but the enquiry was conducted under the Police Rules. Lastly the learned counsel has pointed out that the final show-cause notice dated 31st December, 1979 was actually received by the appellant on return to his Police Station Pano Akil on 2nd January, 1980 alongwith the order of dismissal dated 1st January, 1980. That the appellant thus got no opportunity to show- cause against the proposed penalty of dismissal from service.
10. The evidence in this case consisted of the statements of subordinate police constables who have pointed out that no service revolver was available at Stuart Gunj Police Station. That there are 26 gas guns available in the kit which had all been issued to Police Stations and gas parties or officers, the last two having been issued to the Judicial Lockup Guard. They have also stated that eight or ten thousand persons had gathered near Dhoon Hospital and not merely a few hundred persons.
11. The main charge however, is regarding the fact that the appellant should not have left his position under, any circumstances and even for obtaining presence of a Magistrate or additional force, but should have faced the situation bravely until the arrival of any reinforcement. That even in the absence of a Magistrate the Police Officer could use force to disperse an unlawful assembly but the appellant had made no efforts to do so. Police Department would, however, be the best judge as to how the appellant commanding the platoon should have acted under the situation.
12. The next question for consideration is regarding the double procedure adopted for this enquiry.
13. This incident which was subject matter of enquiry had occurred on 6th April, 1979. The proceedings were started against the appellant by issue of a show cause notice under rule 5(3) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973, that is to say, the Authority had decided that it was not necessary to have an enquiry conducted in that case. Without cancelling the show cause notice a charge-sheet was subsequently served under the Police Rules and enquiry was conducted under the said rules. The notification of the Government of Sind, excluding a Sub- Inspector from the purview of the Sind Civil Servants (Efficiency and Discipline) Rules, 1971, had been issued only on 11th August, 1979 while the show cause notice dated 1st September, 1979 had already been served. A question therefore, arise whether the notification could be applied retrospectively to the case of the appellant. Under the general principles, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun. A retrospective operation is not to be given to a statute so as to impair the existing right, unless the contrary intention appears by express language or necessary implication.
14. A provision of a statute dealing with the matters of procedure may, however, have retrospective effect, unless a contrary intention appears in the amending statute. In the present case effect of the amendment is, to take away the immediate right of appeal given to the aggrieved civil servant whereby he could move the Service Tribunal in first instance and thereafter the Supreme Court. A right of appeal has been held to be a substantive right of which a person cannot be directed by retrospective legislation (AIR 1943 Born. 169). The position, therefore, is that in the present case when the proceedings had already been started and action taken under the Efficiency and Discipline Rules, 1973, the Revised Police Rules had no application since it was expressly mentioned even in the notification that it was to come into effect from 11th August, 1979 and the circular letter mentioned that "all fresh departmental cases initiated on or after 11th August, 1979 were to be governed by the Revised Police Rules under Chapter-XVI". However, this change in procedure could not in any case prejudice the appellant since under Efficiency and Discipline Rules also similar enquiry could be conducted under rule 6.
15. The most important question raised in this case is that the show-cause notice regarding the report of the Enquiry Officer and the proposed penalty of dismissal from service had not been effectively served on the appellant before issue of the final order and a reasonable opportunity had not been afforded to him to show-cause against his dismissal from service. This show-cause notice is dated 31st December, 1979. It was issued on that date at Sukkur. The appellant was posted at Police Station Pano Akii. The actual distance of the Police Station from Sukkur is not known but possibly the distance was about 50 miles. The appellant has stated that he had left Pano Akil Police Station on 27th December, 1979 in connection with crime No, 162 of 1979 under section 302, P. P. C. Per entry in the station diary No,
12. That he had returned to Police Station on 2n1 January, 1980 at 1800 hours per entry No,
16. That he got the show cause notice, copy of the findings of the Enquiry Officer as well as the final order of dismissal dated 1st January, 1980 together on 2nd January, 1980, Even presuming for the sake of arguments that this final show-cause notice had reached Pano Akil Police Station from Sukkur on the date of issue; namely 31st December, 1979 then the 24 hours period allowed, would expire sometime late on 1st January, 1980 but the final order had already been issued during office hours on 1st January, 1980. Thus no time was allowed to the appellant to furnish his explanation with regard to the findings of the Enquiry Officer and to show-cause against the order of dismissal. Under the former Civil Services Classification Control and Appeal Rules, it was considered important that two opportunities must be given to the official concerned, the first during the enquiry to defend himself and the second to show-cause against the proposed punishment. In case of I. W. Lall reported in AIR 1948 P C 121 = PLD 1948 P C 150, it was held by Privy Council that under rule 55 the civil servant shall be informed of the grounds on which it is proposed to take action and to afford an adequate opportunity to defend himself. No action is proposed, until a definite conclusion had been reached on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments merely hypothetical. It is on that stage being reached that Statute gives the civil servant the opportunity for which the provision is made. Their Lordships saw no difficulty in the Statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry duly carried out he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry. Their Losdships of the Privy Council held ; that Lall was not given #such two opportunities, the opportunity at second stage having been denied to him, his removal from service was void and inoperative.
16. The same question came up for decision before the Supreme Court in Mir Muhammad v. N.-W. F. P.
17. Government . The appeal in that case was directed against the order of the Service Tribunal Peshawar in the proceedings against a Civil Judge. It was argued that the appellant should have been furnished copy of the enquiry report and afforded an opportunity to explain his position with regard to the findings therein. The learned A. A. .G. Pointed out that the relevant rules did not require copy of the report to be furnished to the accused that would be nothing more than an attempt to introduce the concept of a second show-cause notice through the back door, although such a requirement stood specifically excluded by the provisions of Article 240 of the 1973 Constitution and the relevant law framed thereunder. The counsel for the appellant however placed reliance on the judgment in Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal , wherein it was observed "in or opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him". After discussing the relevant rules 5 and 6 of the present Government Servants (Efficiency and Discipline) Rules, 1978. It was observed in the judgment that under rule 5(3) the Authorised Officer shall inform the accused of the section proposed to be taken in regard to him and the grounds of the action ; and shall give him a reasonable opportunity of showing cause against that action. There seems to be no logical reason for denying the accused officer a similar opportunity in a case where formal enquiry was held In terms of rule 6 read with sub-rule (2) of rule 5. This stage is reached In the case of a formal enquiry only after the enquiry has been completed and the Authorised Officer has formulated his view in the light of the enquiry report. On a proper construction of rules 5 and 6 read together, it Is a statutory requirement to give an opportunity to the accused officer to offer his explanation against the proposed action in the light of the findings of the Enquiry Officer, before sending the recommendation to the Authority. A copy of the enquiry report should be furnished to the accused officer at this stage and he should1 2 be apprised of the action proposed against him. This being essential in order to satisfy the requirements of' the rules, the failure to do so invalidates the recommendations of the Authorised Officer and the ultimate order passed on their basis by the Authority against the accused Officer.
18. We find, therefore, that the Authorised Officer should have furnished the accused a copy of the report of the Enquiry Officer with the punishment proposed to be imposed and afforded the accused a reasonable opportunity to show cause before passing of the final, order. We accordingly set aside the order of dismissal passed against the appellant, and remand the case to the relevant authorities (Senior Superintendent of Police, Sukkur) to proceed from the stage from which the error could be corrected; by supplying a copy of the findings of Enquiry Officer to the appellant namely and allowing him at least a week time to submit his explanation in regard to the material brought against him during the Enquiry proceedings and the action proposed to be taken against him. The appeal is allowed in the above terms. There will be no order as to costs. PLD 1981 SC 176 1973 SCM R 455