' MUHAMMAD IBRAHIM SUMALANI (MEMBER-I).--- This appeal has been filed under section 4 of the Balochistan Service Tribunals Act, 1974.
2. The brief history of the case is that the appellant is an employee of Balochistan Police Department. He was transferred to ICT Islamabad Traffic Police on deputation for a period of 3 years on 7-2-2005 which was extended for another 2 years and after completion of his tennure he was repatriated to his parent department by ICT Police vide order dated 7-10-2010 with the direction to report to his parent department with immediate effect as his permanent absorption in ICT Islamabad was not agreed by a five member committee thereof. Being aggrieved, the appellant approached the Lahore High Court Rawalpindi Branch and Federal Service Tribunal Islamabad wherein vide order dated 10-1-2013 of the Federal Service Tribunal the appeal was dismissed with the observation that the appellant being a provincial employee cannot invoke the jurisdiction of Federal Service Tribunal. Thereafter the appellant filed miscellaneous petition under section 152, C.P.C. Seeking correction of accidental mistake, wherein the Hon'ble. Federal Service Tribunal remarked that in term of Service Tribunal (Procedure) Service Rules, 1974/Service Tribunal Act, 1973 have no power to review its own judgment. Therefore the said miscellaneous petition was dismissed vide Federal Service Tribunal order dated 11-4-2013. Ultimately he reported to Balochistan Police on 11-6-2013 and he was served with charge sheet and Mr. Muhammad Azher Akram AIG General, CPO Quetta was nominated as Inquiry Officer, wherein, it was concluded by the Inquiry Officer that there was no documentary proof found in which court ordered in to serve at Islamabad and not to report to CPO Quetta. Therefore, he willfully avoided to relinquish the charge and did not comply with order of I.-G. Police because after availing joining period he absented himself from his place of duty from 21-10-2010 to 10-6-2013, hence the Inquiry Officer recommended that the appellant may be awarded with major punishment under the existing rules of Efficiency and Discipline Rules, 1975. The competent authority I. G. Police agreeing with the inquiry report, imposed major punishment of reduction in the rank (demotion from the rank of Inspector to Sub-Inspector) vide order dated 19-2-2014. Being aggrieved by the said impugned order, the appellant has filed the instant appeal on the following grounds:---
(A) Entire disciplinary proceedings conducted against appellant were a mere smoke screen and a colourable device to inflict major harsh penalty of "reduction in rank" on him adversely affecting his future service career. Impugned orders suffer from numerous legal infirmities explained hereinafter and the same are liable to be set aside by this honorable Tribunal.
(B) Impugned Orders are without jurisdiction and nullity in the eye of law because disciplinary proceedings were conducted and action was taken under Police Disciplinary Rules, 1975 in following terms:
1. Service of Charge Sheet and Statement of Allegations;
2. Appointment of inquiry officer;
3. Conduct of inquiry by Inquiry Officer;
4. Infliction of major penalty of "reduction in rank" by issuance of impugned orders; and
5. Rejection of departmental appeal/review application.
' It may be pertinent to mention here that Police Disciplinary Rules, 1975, under which aforesaid adverse steps were taken, do not hold the field and are no more applicable to Police Force after promulgation of Balochistan Employees Efficiency and Discipline Act, 2011 made applicable to the Police Force under SD.1(3)(ii) of the said Act.. It may also be relevant to mention here that said Act has been given overriding effect as provided in S.19 of the said Act. Disciplinary action taken and issuance of impugned order against appellant stood vitiated on this sole count that he was proceeded against departmentally under a wrong law. Impugned order, suffering from said material legal infirmity going to the root of propriety of disciplinary proceedings, is not sustainable in the eye of law and is liable to be quashed/set aside by this Hon'ble Tribunal to do complete justice. It may also be pertinent to mention here that promulgation of aforesaid Act of 2011 was brought to the notice of different Departments including Police Department with advice to take all disciplinary actions under the said Act vide Circular No. SO(R-1)3(7)S&GAD/1362-400 dated 10-8- 2011 circulated by Secretary S&GAD.
(C) Without prejudice to appellant's aforesaid contention that he was proceeded against under wrong law and impugned orders are liable to be set aside on this sole count, nonetheless, the provisions of Police Disciplinary Rules, 1975 were also not complied with, details whereof are as given below:
(i) Inquiry Officer did not record any evidence in support of allegation in the immediate presence of appellant and even if any evidence was recorded it would have been recorded behind the back of appellant that is not admissible in the eye of law and any adverse action taken as a consequence of such illegal proceedings are equally unsustainable. Even comments, if any, offered by IGP Islamabad were not confronted to appellant to afford him a reasonable opportunity to rebut/controvert the same. Such material legal infirmities vitiated the whole inquiry proceedings.
On the basis of such illegal inquiry, infliction of major penalty of "reduction in rank" on Appellant is arbitrary, fanciful, capricious and violative of principles of natural justice.
(ii) Before passing of impugned order, neither any Final Show-Cause Notice was served on appellant nor he was informed in writing about the specific action proposed to be taken in regard to him as required by R.5(3)(b) of Police Disciplinary Rules, 1975. In the absence of Final Show- Cause Notice, appellant was deprived of reasonable opportunity to defend himself against the proposed penalty as well as quantum of penalty.
(iii) By operation of impugned order, the period of alleged absence from duty has been treated as on Extra Ordinary Leave without pay w.e.f. 21-10-2010 to 19-2-2014 that is another classic example of arbitrariness and non-application of judicious mind to a serious matter involving career of an individual. The competent authority was completely oblivious of the fact that appellant had since rejoined Balochistan by submission of arrival report dated 10-6-2013.
(iv) In the impugned order, the period for which penalty of "reduction to lower rank" shall remain operative has not been specified which is violative of Fundamental Rule 29 reproduced under:--- ' FUNDAMENTAL Rule 29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his timescale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent.
(D) Impugned order is violative of derogatory to Article 10A inserted in the Constitution of Islamic Republic of Pakistan, 1973 by Constitution (Eighteenth Amendment) Act, 2010. Old principle of "Fair trial" has now been raised to a higher pedestal after insertion of said new Article in the Constitution.
"Fair trial" has been denied to appellant, therefore, consequential action taken under impugned order, inconsistent with or in violation of said Article, would be void. A void order has never been considered as sustainable in the eye of law, therefore, impugned order of "reduction n rank" is liable to be quashed/set aside on this sole strong ground.
' 10A. Right to fair trial.
' For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
(E) Without prejudice to appellant's contention that infliction of major penalty of "reduction in rank" was illegal, without jurisdiction and arbitrary, it is submitted that universal principle of theory of punishment has also been ignored that "Quantum of punishment must be commensurate to gravity of charge".
(F) Appellant has been punished for his endeavor to protect his interest by invoking jurisdiction/aid of judicial forums on the grievance that he was arbitrarily and discriminately denied to be permanently absorbed in the CTP, Islamabad despite recommendation of two Committees constituted for the said purpose and some other equally placed police officials were permanently absorbed by restoring to the method of "pick and chose".
(G) In view of aforementioned grounds/submissions, it is crystal clear that on whatever touchstone appellant's case is tested whether on merits or legal grounds, it would be an irresistible conclusion that appellant has not been dealt with justly and the impugned harsh order of "reduction in rank" has been passed against him in quite slipshod manner. Golden good old saying that "justice should not only be done but must appear to have been done", must come true at all times, and that too, before the heaven falls on a man, and it falls on a man, and it falls on a petty civil servant when he is arbitrarily dealt with and thrown out of service without making any effort to weight the incriminating evidence available against appellant; to afford him with a reasonable opportunity of defence and to balance the gravity, of charge and quantum of punishment.
(H) Appellant's previous unblemished service record of 21 years and his performance has also not been appreciated while passing harsh major penalty of "reduction in rank" resulting in stigma on character as well as devastation of future service career. The instant case is a fit one for interference of this Hon'ble Tribunal to undo the injustice done and to save appellant's future career from devastation by setting aside the impugned order of "reduction in rank."
3. The counsel for the appellant prayed that the impugned orders dated 19-2-2014 and 14-5-2014 may be set aside in the interest of justice, equity and fair-play.
4. The A.A.-G. Along with representative of official respondent are present and stated that the services of the appellant (the then Sub-Inspector) was placed at the disposal of Islamabad Police on 27-8-2005. During deputation he was promoted as Inspector vide order dated 26-12-2008 and he was posted to Crime Branch, Balochistan, however he was repatriated to his parent department vide order dated 7-2-2009, thereafter the appellant submitted an application to the Inspector General of Police Islamabad with the request that due to domestic problems he did not want to go to Balochistan and prayed for his permanent absorption. However vide order dated 29-9-2010 he was repatriated and relieved from ICT Police on 7-10-2010, but the Police Authority Balochistan under the Balochistan Police E&D Rules, 1975 imposed a major penalty of reduction in rank (demotion from the rank of Inspector to Sub-Inspector and his departmental representation has also been rejected vide order dated 19-2-2014 and dated 14-5-2014. The A.A.-G. Emphasized that actually the appellant was desirous to get absorbed himself in Islamabad Police but he failed hence he remained absent without any justification. He was also given opportunity of personal hearing by the competent authority to defend himself but he could not satisfy the authority, hence his departmental representation rejected. The C absent period of 2-1/2 years i.e. From 21-10-2010 to 10-10-2010 has been declared and treated as extra ordinary leave without pay by the competent authority. The A.A.-G. Stated that proper charge sheet, inquiry, opportunity of personal hearing as well as proper inquiry was conducted and thereafter on the recommendation of Inquiry Officer he was awarded major penalty, therefore he prayed that the appeal may be dismissed in the interest of justice, equity and fair play.
5. Arguments heard. Available record perused. In the first instance we have to advert to the Provisions as F.R.29 which say that "if a lower grade 3 or post shall state the period for which it shall be effective and whether, on restoration, if shall operate to post one further increments and if so, to what extent". Reliance can be placed on the case of Tunvir Ahmed v. Chief Secretary (2004 SCM R 647) wherein it was held "major penalty of reduction was inflicted on the petitioner, this order was upheld by the Service Tribunal. The imposition of punishment of reduction to a lower grade without specifying_ the period of punishment is in violation of FR.29" therefore, it could not have been sustained. The punishment, inflicted on the appellant is hereby restricted for a period of few years only.
6. In order to sum up the issue and it is to be examined putting in just a position to the provisions of F.R.29 read with series of judgments passed by the Hon'ble Supreme Court as discussed above. We are of the firm view that the penalty imposed must be restricted to some specific period, thus the respondent department is directed to specify the effect of penalty's period (for how many months/years the penalty should remain in field), as per provisions of F.R.29 with a period of month;
7. Appeal is accepted and impugned order is set aside in the above terms with no order as to costs.