This judgment will decide an appeal filed by the appellant under Section 4 of the Punjab Service Tribunal Act, 1974.
2. Apercu of the case are that the appellant Touseer Abbas (ex-constable No 6723) was issued show-cause notice Bearing No. 860/PS dated 02.09.2011 by the CPO, Rawalpindi as follow, "As per inquiry report conducted by the DSP Headquarter, Rawalpindi, that during duty you have committed an obscene/immoral act with a Chinese's Lady Engineer". Thus a case FIR No. 652 dated 02.09.2011 under Sections 376/452/511, PPC, 155-C; 155-D of Police Order, 2002 was .Registered against you. Being a member of disciplined force, you have brought a bad name for the police department in the eye of general public"
3. The CPO, Rawalpindi after examining the relevant record, show-cause notice and inquiry report conducted by the DSP Headquarter, Rawalpindi, vide his order dated 22.09.2011 dismissed the appellant from service with immediate effect.
4. Being dissatisfied from the order of the CPO dated 22.09.2011, the appellant preferred an appeal before the RPO, Rawalpindi Region, Rawalpindi. The RPO, Rawalpindi Region, Rawalpindi after perusal of the relevant record, appeal and the comments offered by the CPO, Rawalpindi as well as hearing the appellant in person on 18.10.2012 maintained the impugned order and rejected the appeal being devoid of any legal substance vide hia order dated 22.10.2012.
5. Learned counsel for the appellant contended that appellant was involved in this case falsely; the victim of the criminal case FIR No. 652 mentioned above exonerated the accused and did not support the prosecution version hence the appellant was acquitted from such criminal case; no regular inquiry was initiated in this case before imposing major penalty of dismissal from service; the inquiry conducted by the DSP/Hqrs Rawalpindi was in the shape of question & Answer which is bad in law; the department has failed to follow the rule laid down by the Hon'ble Supreme Court of Pakistan reported in 2007 SCM R 192 that mere registration of a criminal case against police officer cannot be made the basis for infliction of major punishment; the impugned order is also against the spirit of Police Rule 16.2(2) hence cannot be sustained and liable to be reversed. Learned counsel prayed that appeal be accepted, impugned orders be set aside and the appellant may be reinstated in service from the date of his dismissal from service with all back benefits.
6. Learned Deputy District Attorney vehemently opposed the arguments raised by the learned counsel for the appellant and supported the impugned orders. He has contended that the appellant has committed immoral act due to which he gave bad name to the police authority. The department after perusal of the evidence, passed the impugned order in accordance with law and did not commit any legal mistake. He further contended that the appeal is without merit and therefore by rejected.
7. Arguments heard. Record perused.
8. Allegation against the appellant is that during his duty, he has committed an immoral act with the Chinese's Lady Engineer namely Ye Mena and pursuant to the said act of the appellant, criminal case FIR No. 652 dated 02.09.2011 under Sections 376/452/511, PPC, 155-C, 155-D of Police Order, 2002 was registered against him at Police Station Westridge Rawalpindi. The said Lady Ye Mena on 31.10.2011 appeared before the Hon'ble Sessions Judge, Rawalpindi and gave statement that some unknown person had trespassed in her room but she escaped. On the request of the public prosecutor, the Hon'ble Sessions Judge, Rawalpindi, declared her hostile and allowed the public prosecutor to cross-examine her. During cross-examination, Lady Engineer Ye Mena remained resolute about the innocence of the present appellant. On the same date i.e 31.10.2011, after issuing notice to the state, the Hon'ble Sessions Judge, Rawalpindi acquitted the present appellant by holding that there was no chance of conviction of the present appellant in the said case. It is settled principal of law that the civil servant cannot be dismissed from service merely that some criminal cases have been registered against him unless the civil servant is declared by the competent Court of law guilty and is convicted. Learned Deputy District Attorney neither pointed out any incriminating evidence available with the department to prove that the appellant had committed an offence on the basis of which, he was dismissed by the authority with respect to immoral act which he allegedly committed with Ye Mena nor the learned Deputy District Attorney has established through the record that in this case proper regular inquiry was initiated by the department before imposing the major penalty against the present appellant. The inquiry conducted by the DSP/Hqrs available on the record is in the form of questionnaire without examining the witnesses in support of charge, therefore, such report is not sacrosanct. Reliance is placed on 1993 SCM R 1440 titled "Jan Muhammad vs. General Manager etc." As the department has failed to conduct proper regular inquiry against the present appellant before imposing major penalty in this case and this amounts to violation of the principle of natural justice, therefore, taking legal light from the dictum laid down by the Hon'ble Supreme Court of Pakistan titled "Tariq Mahmood vs. DPO Toba Tek Singh etc." reported in PLD 2008 SC 451. This appeal is accepted, the impugned orders dated 22.09.2011 and 22.10.2012 are set aside, the appellant is reinstated in service.
The case is remanded to the competent authority for holding proper regular inquiry and to proceed with the matter in hand in accordance with law. The matter of grant of back benefits to the appellant is left open to be decided by the competent authority.