Nasrullah Khan Achakzai, Chairman.--The appellant has filed this service appeal under Section 4 of the Balochistan Service Tribunals Act 1974, against the impugned dismissal order dated 23.05.2013 and appellate order dated 20-06-2013, with a prayer to set-aside the same and to reinstate the appellant with all back benefits.
2. Brief facts giving rise to this appeal are that the appellant had joined the Balochistan Police as ASI on 22-12-1994. On 27-05-2003, he was promoted to the rank of SI (Sub Inspector) and on 26-12- 2008 he was promoted to the rank of Inspector. He remained as SHO of different Police Stations of Quetta city and there is nothing adverse against him during his entire service except the instant case. When, the appellant was posted as SHO Police Station Cantt: on 01-05-2013, two (2) most wanted criminals namely Muhammad Umer and Mir Ahmed who were brought from Satellite Town Police Station Quetta and were kept in the lockup of Police Station Quetta Cantt. As it was the common practice that criminals involved in heinous crimes were brought from different Police stations for their detention in Police Station Quetta Cantt being situated in sale and secured cantonment area. Before the fateful day of incident of absconding of the aforesaid criminals, the Investigation Officer of PS Satellite Town Quetta and DSP Crime Branch Quetta repeatedly visited the Police Station Quetta Cantt to interrogate the aforesaid criminals for that purpose the said criminals were brought out of the lockup by the said Police officials and after investigation/interrogation they were again detained in the lockup, while that process has been duly entered in the Roznamcha. The appellant being conscious of the sensitivity of detention of the most wanted criminals involved in heinous crimes by other Police stations, the appellant always employed suitable number of available staff on their security and implanted in their minds through frequent repetitions to be most careful and vigilant. The Investigating Officers too never complained about the poor security or absence of staff from the duty. On the midnight of 18/19-05- 2013, the appellant had gone home after satisfying himself that every thing was in order in general and presence of aforesaid criminals in the lockup which was duly locked. His departure from Police Station was duly entered in the Roznamcha. The appellant was directed through a Security Plan/Order No, 3743180/1(12) dated 18-05-2013, to make security arrangements and ensure the safety/security of the leader of PML(N), Mr.Shahbaz Sharif, during his visit/stay at Quetta on 19-05- 2013. Through that Security Plan he was deputed at Sub Sector-II of Sector No, 3 i,e, from Askari Petroleum to Ordnance Depot Chowk Quetta, with US x 01 & LS x 10 from PS B/Road + 10 from BC. In the morning of 19-05-2013, Munshi Shoaib of PS Cantt telephonically reminded the appellant about the said security plan but he did not inform him about any unusual incident in the Police Station, rather he told that every thing is fine. In the morning of 19.05.2013 the appellant was engaged to act upon the security plant as he was directed and to inform the control accordingly. The appellant was on the site of his duty as prescribed by the Security Plan when at 12:13 noon, the Munshi Latif of PS Cantt telephonically informed the appellant that criminals namely Muhammad Umer and Mir Ahmed brought from PS Satellite Town Quetta were not present in the lockup. He further told that he inquired from PS Satellite Town Quetta and CIA Branch in that regard but they had shown unawareness. The appellant immediately informed the incident of missing criminals to DSP/SDPO Cantt, who directed the appellant to reach PS Quetta Cantt. When the appellant reached at the PS Quetta Cantt and inspected the lockup from where the aforesaid criminals were absconded. It was observed with surprise that lock of the lockup was intact and there were no signs of tampering or breaking of the lock. It was also surprising that third criminal namely Muhammad Yousaf was present in the same lockup who was asked about the whereabouts of the absconded criminals but he showed his unawareness. Subsequently the Duty Officer and all the three (3) constables deployed at the PS Quetta Cantt were called. Incident of absconded criminals was brought into the notice of DSP Cantt, SP City and DIG Operations who arrived at the PS Quetta Cantt and inquired into the incident. Thereafter SI PS Satellite Town, Investigating Officer, got registered an FIR No, 30/2013 against the staff of PS Quetta Cantt who were present at the time of incident. The name of appellant has not been incorporated in the said FIR.
3. On 20-05-2013, a Show-Cause-Notice No, 9864-66/16(2)/E was served on appellant, whereby he was called upon to show-cause within seven (07) days of communication of the notice as to why he should not be proceeded departmentally under police Disciplinary Rules 1975, with allegations of negligence and loose control. Before the appellant could submit his reply of Show-Cause Notice within seven (07) days of receipt thereof, he was called by DIG Operations in the Orderly Room for hearing on 23-05-2013, but without affording proper hearing he was dismissed from service on the same date i,e, 23-05-2013 by the DIG Operations CCP, Quetta. Being aggrieved of his dismissal from service order dated 23-05-2013, the appellant had preferred his departmental appeal dated 03- 06-2013 before the CCPO Quetta, who on 19-06-2013 dismissed the appeal filed by the appellant.
The appellant being aggrieved from the impugned orders dated 23-05-2013 and 19.06.2013 has filed the instant appeal before this Tribunal on 27.06.2013.
4. On notice, the Respondents No, 1, 2 and 3 have filed their respective objections, wherein they have stated that there was no suitable security at the Police Station Cantt and if the employees were on duty and rightly checked by the appellant then how hardened criminals were escaped and appellant has not himself lodged FIR against the personnel of PS Quetta Cantt. The appellant was totally aware about the incident and it was the responsibility of the appellant being SHO of Police Station Quetta Cantt: while the incident had occurred due to his share negligence. On the next day before engaging himself in the Security Plan he should have gone to Police Station Quetta Cantt and before going to security duty he should have entered this fact into the Roznamcha of 19- 05-2013 of PS Quetta Cantt. He was heard properly by the competent authority and the appellate authority as provided by law and rules. They have lastly prayed for dismissal of the appeal.
5. We have heard the learned counsel for appellant and learned Assistant Advocate General for respondents, perused the record with their assistance and considered their respective contentions in the light of available record. It is an admitted position that on 20-05-2013, a Show-Cause Notice was issued to the appellant, wherein at Para-2 of the said Show-Cause Notice it has been stated that you are hereby called upon to show-cause in written within seven (07) days of the receipt of this communication as to why you should not be proceeded departmentally under Police Disciplinary Rules, 1975, while at Para-3 thereof, it has been stated that if your reply is not received within a stipulated period then it will be assumed .that you have no defence to offer and ex-parte proceedings will be conducted against you, but on 2305-2013, the appellant was dismissed from service, wherein at Para-2 of the impugned order dated above it was mentioned that he was served with a Show-Cause Notice on 23-05-2013 but his reply was not plausible and at Para-3 of the said order, the appellant was awarded major punishment of dismissal from service with immediate effect under existing Disciplinary Rules, 1975. It appears that the appellant has not been provided opportunity of seven (07) days from the receipt of the said Show-Cause Notice in the written form which was mandatory under the law, as such we are of the view that the appellant has been condemned unheard, as no appropriate time had been provided to the appellant as provided in the Show-Cause Notice dated 20-05-2013. The appellant has almost more than eighteen (18) years of service at his credit and the respondents have failed to show any negligence from his service record of more than eighteen (18) years. It is also an admitted position that on the date of incident the appellant had proceeded at 12:15 am to his home and appointed SI Saghir Ahmed as Incharge and this fact has been duly recorded in Roznamcha of the said date. We have also examined the Security Order dated 18-05-2013, wherein at Sector No, 3 sub-section (II), the duty of appellant was from Askari Petroleum to Ordnance Depot Chowk along-with other subordinate staff and the appellant had duly discharged his duty assigned to him through Security order dated 18.05.2013, then at 12:13 noon he was informed about missing of the criminals namely Muhammad Umer and Mir Ahmed. He rushed to the Police Station Quetta Cantt and had informed the higher authorities, called duty officer and asked the three (3) constables who were deployed at Police Station Quetta Cantt. The FIR No, 30/2013 about missing of said criminals was lodged by the complainant Iftikhar Ahmed Rasheed ASI Investigation of Police Station Satellite Town Quetta against the staff who were present at the Police Station Quetta Cantt at the relevant time, i,e, ASI Ghulam Murtaza Duty Officer, Muhammad Shoiab, Sher Dil, Sultan, Abdul Aziz, Ashraf, Muhammad Umer and Mir Ahmed. The respondents have failed to bring on record the involvement of appellant in the said incident from the persons who were on duty at the relevant time at Quetta Police Station Quetta Cantt nor any thing has been brought on record during the full-fledged inquiry, which has not been conducted by the competent authority for the reasons best known to them. As the matter of negligence and involvement in any form of the appellant needed a ful-fledge inquiry which was required as factual controversy was involved. Thus, the heinousness of the crime itself could not absolve them from the liability of conducting a ful-fledge inquiry into the matter and to unearth the actual accused involved in the said incident. We are supported for holding this view by case laws referred by the counsel of appellant (i) SCMR 2009 Page 339 titled Muhammad Haleem and another Vs. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others, (ii)
SCMR 2006 Page 104 titled Muhammad Idris Khan Vs. Secretary/Chairman, Ministry of Railways, Islamabad and five (5) others, (iii) SCMR 2009 Page 329 titled Chief Election Commissioner of Pakistan and others Vs. Miss Nasreen Pervez. (iv) SCMR 1993 Page 603 titled Ala mgir Vs. Divisional Forest Officer, Multan and others, (v) SCMR 2009 Page 412 Fuad Asadullah Khan Vs. Federation of Pakistan through Secretary Establishment and others.
6. Thus, while keeping in view the above legal position we allow this appeal, set-aside the impugned orders dated 23-05-2013 and 03.06.2013 and reinstate the appellant in service with all back benefits w,e,f, 23-05-2013. However, this would not preclude the competent authority from proceeding a fresh, by way of a formal inquiry into the allegations levelled against those who were present on duty at the time of occurrence of the said incident, within a period of two (2) months positively from the date of this Judgment. No order has been made on costs. File after completion be consigned to record.