Justice (R) Sayed Zahid Hussain, Chairman.-Muhammad Azam, SI-7325, Sub-Inspector, Veterinary Compounder of 51 Wing Qasim Rangers was charge sheeted under S. 15(1) of Pakistan Rangers Ordinance, 1959 read with R.4 of Pakistan Rangers (Efficiency, Discipline) and Appeal)
Rules, 1967, attributing misconduct in his capacity as the Member of the Force that he "got involved himself in nefarious activities of illegal business of (Purchase & Sale) of stolen Motorcycles from civilian Nadeem Ahmed (Notorious Car Snatcher) and further selling the same motorcycles thus not adhering the Standing Operating Procedure and violated the rules and regulations of the force". This charge sheet was issued on 05.11.2011 by the Deputy Director General, Pakistan Rangers Sindh. On the same date, he was put certain questions and was informed that he is allowed three days to prepare his defence. But on the next day, i.e, 06.11.2011, order was issued to the effect that he "has been tried under S. 15(1) of Pakistan Rangers Ordinance, 1959 by the Deputy Director General, Pakistan Rangers Sindh on 06.11.2011 and awarded the sentence of "dismissed from service". This order bears the designation "for Director General, Pakistan Rangers, Sindh". Appeal under Rr. 15, 16 and 22 of the Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 was filed by the appellant which the appellant was informed on 30.12.2011 to have been rejected by the Director General, Pakistan Rangers Sindh. Hence this Appeal [No, 9(K)CS/2012], under S.4 of the Service 'Tribunals Act, 1973.
2. Diibaz Khan, Sepoy was charge sheeted on 05.11.2011 under Section 15(1) Pakistan Rangers Ordinance, 1959 read with Rule 4 of Pakistan Rangers (Efficiency, Discipline and Appeal) Rues, 1967, attributing misconduct in his capacity as a member of the force, in that he, while serving in 83 Wing Sachal Rangers, Karachi, "got involved himself in nefariods activities of illegal business of (Purchase & Sale) of stolen Motorcycles from civilian Nadeem Ahmed (Notorious Car Snatcher) and further selling the same motorcycles thus not adhering the Standing Operating Procedure and violated the rules and regulations of the force". On the same day he was put some questions and was directed to produce his defence within three days. But was dismissed from service and convicted for rigorists imprisonment for 8 months on 06.11.2011. He filed departmental appeal addressed to the Director General, Pakistan Rangers Sindh, but was conveyed vide letter dated 03.01.2012 that the same had been rejected by the Director General, Pakistan Rangers, Sindh. Hence this appeal [No, 5(K)CS/2012] under S. 4 of the Service Tribunals Act; 1973.
3. Fateh Sher, Sepoy was charge sheeted on 05.11.2011 under Section 15(1) Pakistan Rangers Ordinance, 1959 read with Rule 4 of Pakistan Rangers (Efficiency, Discipline and Appeal) Rues, 1967, attributing misconduct in his capacity as a member of the force, in that he, while serving in 83 Wing Sachal Rangers, Karachi, "got involved himself in nefarious activities of illegal business of (Purchase & Sale) of stolen Motorcycles from civilian Nadeem Ahmed (Notorious Car Snatcher) and further selling the same motorcycles thus not adhering the Standing Operating Procedure and violated the rules and regulations of the force". On the same day he was put some questions and was directed to produce his defence within three days. But on the next day i.e, 06.11.2011, he was convicted and dismissed from service. He filed departmental appeal addressed to the Director General, Pakistan Rangers Sindh, about the rejection of which by the Director General, Pakistan Rangers Sindh, he was informed through letter dated 28.12,2011 that the same had been rejected.
Hence this Appeal 'No, 6(K)CS/2012] under S. 4 of the Service Tribunals Act, 1973.
4. In the parawise comments, the common ground for opposing the appeals is that the Pakistan Rangers is a paramilitary force requiring a high standard of discipline and that the award of punishment was as per law and the rules by the Competent Authority.
5. The learned counsel contends, inter alia, that the proceedings taken against the appellants were in negation of law and the rules, applicable to the Pakistan Rangers inasmuch as that no opportunity of defence was given to them and that the appellants were coerced to sign the charge sheet and that neither the appellants were issued any notice as to the hearing of the departmental appeal nor the order rejecting the appeals give any reason whatsoever. According to him the due process of law as also the principles of natural justice have been ignored and bypassed in the proceedings against the appellants. He has made reference of 1993 SCMR 1440 (Jan Muhammad vs. The General Manager. Karachi Telecommunication Region, Karachi and another"), 2003 SCMR 207 (Inspector-General of Police. Police Headquarters Office, Karachi and 2 others vs. Shafqat Mehmood). 2003 PLC (CS) 1434 (Province of Punjab vs. Muhammad Afzal and PLJ 2002 SC 1294 (Government of NWFP vs. Dr. Hussain Ahmed Haroon and others).
6. The learned counsel for the respondents contends that any such act or omission by the members of the force cannot be ignored or tolerated. The appellants were proceeded against for misconduct attributed to them which they confessed and were accordingly convicted and penalty imposed for that reason. It is, however, not controverted that before the rejection of the departmental appeal neither any notice of hearing was given nor the appellate order contains any reason.
7. there is no doubt whatsoever as to the appellants belonging to a disciplined force and that a high standard of conduct of discipline is expected of them. The law governing Rangers Personnel is Pakistan Rangers Ordinance, 1959. It makes mention of powers, functions and duties of functionaries. S.15, due to its relevance, reads as under: "15(1)The Director General, may <u>subject to rules</u> made under this Ordinance, summarily award, in lieu of or in addition to suspension, removal, dismissal or Compulsory retirement from service, any one or more of the following punishments to any member of the Force who in his opinion is inefficient or disobedience, neglect of duty or remissness in the discharge of his duty or of rendering himself unfit to discharge his duty, or of other misconduct in his capacity as a member of the Force, that is to say:- It empowers the Director General to award/impose any punishment/ penalty subject to rules.
8. S.21 of the Ordinance empowers the Federal Government to frame rules to carry out the purposes of the Ordinance. In exercise of which powers the Rules called Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 were framed. R.3 lays down the classification of penalties i.e, major penalties, minor penalties and summary penalties. R.4 prescribed the procedure for Sward of summary punishment. Under R. 15, a member of the Force on whom, a penalty is imposed under the Rules is given right of appeal. According to "sub-rule 2 thereof, the person concerned is entitled to be heard in person. It reads as follows: "15(2) The appellate authority shall afford to the appellant, at the final stage, an opportunity of being heard in person"
The Rules provide further remedy of revision before the Federal Government (Rule 18), mercy petition to the Director General (Rule 20). It also empowers the Director General to review a case and revise the order passed by himself or by authority subordinate to him under Rule 27. Thus it is a comprehensive code providing remedies at a different levels within the department and the Federal Government. However, at the present, the grievance of the appellants is that at no stage they were given reasonable opportunity of defending themselves which assertion, however, is being controverted by the respondents. We are refraining from making any comment as to the verity of stance of any of the parties. But are constrained to note obvious flaws and lacunas in the matter. Their departmental appeals have been rejected on the basis of office noting in a summary way without hearing them and the order even does not spell out the basis or reasons therefor. For the sake of perusal, letter by which the appellants were informed of the rejection of their departmental appeal is as follows: {{URDU TEXT}}
9. Similar and alike are the orders in all the three appeals before us. It is signed by the Deputy Assistant Judge Advocate General, Pakistan Rangers Sindh. On our asking as to what was the order passed by the Director General, rejecting their appeals, the minutes sheet of the proceedings has been shown which contains a summary of the allegations against the appellants, staff comments and recommendations: "3. Staff comments: Fol options are aval:-
(a) The gravity of defence of the indl Involved himself in nefarious activities of illegal business (Purchase & Sale) of stolen motorcycles from civilian Nadeem Ahmed (Notorious. Car Snatcher) and further selling the same motorcycles, the appeal of a/n indl may be rejected being not on merit..
(b) The indl may be re-instated in svc on humanitarian gr as the DG is empowered to "review a case and revise the orders passed by himself or by an auth subordinate to him" under Sec-27 of Pakistan Rangers (Efficiency, Discipline & Appeal) Rules, 1967."
These two options were proposed by the Deputy Assistant Judge Advocate General. When the note reached the Deputy Director General, he recommended "appeal be rejected, please". This note/recommendation was signed by the Director General, which was then conveyed to the appellants.
10.It has already been noted above that R. 15(2) gave right of being heard to the appellants before decision of the appeal which course has not been followed in the case. It may be observed that such is a statutory right of appeal conferred by the law itself.
11. We feel it appropriate to highlight the importance of a departmental appeal filed by a person for the redressal of his grievance. It may be noticed that the very concept of "appeal" universally recognized is that the appeal is meant for reconsideration of the decision of the lower authority for reversal/review (Black's Law Dictionary, Seventh Edition, Page-94). Even the Hon'ble Supreme Court of Pakistan in the Chief Commissioner, Karachi and another vs. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak. 45), when the question arose as to whether the right of appeal under Sindh (Requisition of Land) Act (XLVI of 1947), carried with it any inherent right of personal audience and hearing, held, "that the right of appeal being a vested right, the maxim audi alterm partem applied to it, and the appeal could not be disposed of in Chamber without giving a right of a personal audience to the appellant, because if that hearing was not given it would tantamount to destroy his vested right in his absence". In the light of above observations of the Hon'ble Supreme Court the Lahore High Court in Syed Ali Abid Zaid and others vs. Deputy Settlement and Rehabilitation commissioner, Gujranwala and others (PLD 1967 Lahore 836) has held that an appeal is substantive right and the powers of appellate Court are contemporaneous with those exercised by the Court of original jurisdiction and that such a right carried with it' the right of personal audience. Again in Muhammad Ayyub and another vs. Muhammad Yaqoob and another (PLD 1975 Lahore 445) it was held that on filing of appeal, the matter gets re-opened and it becomes sub-judice to be decided in accordance with law. Such is the importance of right of appeal and the duty of the appellate authority/forum to decide the same after hearing the appellants.
12. Apart from the in-depth consideration of the appeal, it also imposes a duty upon the appellate authority to record reasons for passing the appellate order and that the appellant shall be informed of the same. This duty to record reasons while deciding the appeal is coextensive with the provisions of Section 24(A) of the General Clauses Act, 1897, which also obliges an authority vested with the power to make any order or direction to give reasons for making of the order. In the instant matter, the order passed by the appellate authority reproduced above in Para-8, not only shows the lack of application of independent and objective mind to the appeal filed by the appellant, it does not contain any reason whatsoever.
13. Since the departmental appeal of the appellant has not been decided in accordance with law which the appellate authority was obliged to consider it objectively, justly and fairly, in view of our powers and jurisdiction under Section 5 of the Service Tribunals Act, 1973, we are inclined to direct the Respondent No, 1 to consider and decide the appeal of the appellant by recording reasons in accordance with law by following the mandate of R. 15(2). Otherwise, the very right of appeal of the appellants would be rendered futile, illusory and nugatory, contrary to established norms of law, justice and fairness.
14. The orders rejecting the departmental appeals of the appellants without hearing them, without due application of mind and without giving any reason whatsoever are not only violative of the fundamental law, natural justice and also the unambiguous provisions of R. 15(2) of the Rules calling for strict observance by all concerned, as such, the orders are not sustainable and are liable to be set aside. Result being that the departmental appeals of the appellants will be deemed pending for consideration and decision with the Departmental Appellate Authority, which shall be heard after due notice of personal audience/hearing of the appellants and to be decided in accordance with law, within a period of 30 days. Since the matter is subjudice with the Departmental Appellate Authority, we have not dilated upon the other aspects of the case as it is expected that the said authority will consider all such aspects with open mind in deciding the appeals.
15. The appeals are accepted to this extent by leaving the parties to bear their own costs.