Syed Muhammad Hamid, Member.--By this consolidated judgment we intend to dispose of above appeals as common questions of law and facts are involved therein.
2. 50(L)CS/2012 namely Khadim Hussain Versus Motorway Police will be leading the judgment.
3. This is an appeal against the impugned order dated 12.09.2011 whereby the penalty of withholding of increments for three years was imposed upon the appellant. The penalty was upheld by the appellate authority vide order dated 17.01.2012.
4. Brief facts of the case are that the appellant was deputed for patrolling on Eagle-II alongwith Maqsood Ahmad Bhullah 54/L in Beat-11 N-5 North-III Sector. On 07.08.2011 at about 14:03 hours a fatal accident occurred in their area on patrolling near Shamke in which the Mazda Dala, LHP-4941 hit a Truck No. TKK-240 from the rear side. Due to this accident co-passenger of the Mazda Dala namely Sadaqat Ali Virk Traffic Warden posted at Lahore expired on the spot.
5. The appellant was charge sheeted on the ground that he failed to impart proper briefing/ education to the Commuters/Road Users to improve traffic discipline in his area of responsibility. In reply to the Show-Cause Notice the appellant stated that a motorcyclist suddenly came on the road before the truck. The truck driver immediately applied the brakes in emergency. Mazda Dala coming from rear side hit the truck from rear side. The appellant removed the vehicle from the accident site and shifted the deceased to Mayo Hospital, Lahore. The injured driver was sent to the Tehsil Headquarter, Muredke apart from lodging FIRs as well as imposition of fine.
6. No regular inquiry was held in the case as required under the rules. Without issuing a final Show- Cause Notice the authority i.e. Respondent No. 1 heard the appellant in the Orderly Room and inflicted the penalty of withholding of increment for three years with a direction to remain careful in future vide order dated 12.09.2011.
7. The appellant preferred a departmental appeal before the next higher authority i.e. Respondent No. 2 DIG of Police, NH & MP, N-5 (North) Islamabad against the impugned order. The appeal was rejected hence the present appeal within the period of 30 days.
8. Respondents have maintained that the matter was got inquired through the DSP/CPO Beat-9; N- 5 North-III. According to the inquiry report the inquiry officer found the appellant guilty of misconduct and negligence in performing his duty. Respondents have further stated that despite departmental inquiry a Show-Cause Notice was also served to the appellant. In his reply to the Show-Cause Notice the appellant failed to produce any cogent reasons in his defense. He was also given an opportunity of personal hearing in the Orderly Room.
9. The learned counsel for the appellant has raised an important point that the Show-Cause Notice mentioned proposed penalty of dismissal from service. The respondents could either dismiss him or exonerate him of the charge. They could not reduce the penalty to stoppage of three increments because it was not mentioned in the Show-Cause Notice. The respondents could have imposed any penalty if they had mentioned it in Show-Cause Notice.
10. We have heard the learned counsel for the parties and have gone through the available record.
11. The point raised by the learned counsel for the appellant that in the Show-Cause Notice only the penalty of dismissal was mentioned and, therefore the respondents were bound to either impose the same penalty or exonerate him. The appellant has been preparing to defend himself against dismissal as mentioned in the Show-Cause Notice. But suddenly the penalty of stoppage of three increments was imposed on him for which he was not prepared. Moreover, how can the appellant be held responsible for irresponsible driving by a Mazda driver. In ultimate analysis in which the Truck driver who applied the brakes suddenly and the Mazda driver who could not control the Dela can be held responsible. The appeal is therefore, accepted and the penalty of stoppage of three increments is set aside.
12. Parties to bear own cost.
13. Parties be informed accordingly.