' Muhammad Javed Iqbal Kasi, Member.--The appellant has assailed the appellate order dated 26.11.2009 whereby the penalty of reduction in pay by one stage for one year, awarded to him vide order dated 26.03.2009, was modified to that of "censure".
2. Facts of the case, in brief, are that the appellant while working as Assistant Sub-Inspector (ASI) was issued show-cause notice dated 27.02.2009 under the provisions of Removal from Service (Special Powers) Ordinance, 2000 [RSO, 2000], on the following allegations: "For your gross misconduct in that you investigated a case FIR No, 57/05 U/S 379, PPC of RPS Karachi Cantt and made defective investigation/recovery Rs, 25000/- from arrested accused Muhammad Ali, who arrested that the pot on the plantation of complainant namely Zulfiqar Ali, which shows your negligence on the part of your official duty.".
The appellant in his reply dated 05.03.2009 denied the charges and submitted that the accused was arrested on 29.10.2005 and Rs, 25,000/- was recovered from his possession which was identified by the complainant, Zulfiqar Ali, as per seizure Memo. He also denied the allegation of making defective investigation. The reply of the appellant was not considered satisfactory and by order dated 26.03.2009, penalty of reduction in pay by one stage for one year was imposed upon him. The appellant filed departmental appeal on 03.04.2009, which remained responded despite lapse of statutory waiting period, as such, he filed appeal Bearing No, 75(K)CS/2009 against the original impugned order before this Tribunal. However, during tendency of the appeal, his departmental appeal was partially accepted by modifying the penalty into "censure", therefore, he withdrew Appeal No, 75(K)CS/2009 and filed the present appeal against appellate order.
3. The learned counsel for the appellant contended that the appellant denied the allegations leveled in the show-cause notice, therefore, holding of inquiry was mandatory and without conducting any inquiry, no penalty could be warranted under the Ordinance, 2000, thus the original as well as appellate order could not sustain. He submitted that the inquiry has been dispensed without assigning any plausible reason as there was no material witness was called and examined against the appellant to prove the allegations which is in violation of the judgment of the ,superior Courts. He also submitted that since very appointment till the imposition of penalty the appellant was never served with any kind of show-cause notice as he worked with full devotion and according to the rules, as such, without any iota of evidence against him, the penalty awarded to him on the basis of show-cause notice is liable to be set aside. The learned counsel stated, that Respondent No, 2 has acted as complainant, witness, prosecutor, judge and also as appellate authority making the whole proceedings ab initiation viod and illegal and thus on this score alone, the impugned orders are liable to be set aside. In support of his arguments, the learned counsel has placed reliance on the case law reported as 2010 SCMR 532, 2007 SCMR 307, 2002 PLC (CS)
1078 and 1992 PLC (CS) 1010.
4. The respondent-department resisted the appeal. In their paradise comments, they stated that the appellant being Investigating Officer (I.0.) had not conducted the investigation as per rules which proved his negligence. They also stated that the appellant recovered Rs, 25,000/- instead of Rs, 31,000/- and also failed to arrest the absconding accused who escaped away from the place of occurrence. They denied the contention of the appellant that penalty was not imposed by the competent authority. As regards dispensation of inquiry; it was stated that on account of sufficient documentary evidence against the appellant, holding of inquiry was not necessary. They prayed for the dismissal of the appeal keeping in view the gravity of offence and negligence on the part of the appellant. D.R. Has been heard who adopted the written reply filed on behalf of the respondent- department.
5. After hearing the arguments from both sides, we have gone through the case record.
6. The admitted position is that the appellant, in reply to the show-cause notice, denied the allegations, therefore, to come to a just decision, without conducting an inquiry, the charges could not be said to have been proved against him. The contention of the appellant, that the amount of Rs, 25,000/- was recovered in presence of the complainant, namely, Zulfiqar Ali, who has also signed the Seizure Memo. In token of acknowledgment of the recovered amount in presence of two witnesses, carries weight, therefore without recording their statements and allowing the opportunity of cross-examining to the appellant, the charge of defective investigation or negligence could not be held to be proved against him. We have also gone through the appellate order dated 26.11.2009, wherein the appellate authority in para 3 ordered as under: "Heard in person on 25.11.2009. Besides, his appeal, comments of SRP and other relevant record have also been perused. The punishment of reduction in pay by one stage for one year is converted into "Censure".
' A bare perusal of the above order would show that while converting the penalty into "censure" the appellate authority has not given any reason for its modification which is against the provisions of General Clauses Act, 1897 which clearly provides that reasons have to be assigned while passing any order, therefore, it is nullity in the eye of law and cannot be sustained and is hereby set aside.
7. For the foregoing reasons, the appeal succeeds in the above terms.
8. No order as to costs. Parties be informed accordingly.