' Succinctly stated, the appellant Muhammad Majid, Constable No, 1738 (hereafter to be referred as appellant) was issued show-cause notice Bearing No, 396/PA dated 4.8.2015 under Punjab Police (Efficiency & Discipline) Rules, 1975 with allegations/ charges that during his posting at Muhafiz Squad No, 13, Saddar Circle, Bahawalpur, he alongwith Kamran Gill T/ASI and 3/4 unknown persons apprehended Imtiaz Hussain, took him to a nearby forest, subjected him to torture and extorted Rs, 15000/-, which was reported at Police Station Saddar, Bahawalpur through FIR No, 174/15 dated 14.07.2015 u/S. 302, PPC. The competent authority i,e, DPO Bahawalpur initiated disciplinary proceedings against him based upon submission of challan of the aforesaid case to a Court of competent jurisdiction and after sending him show-cause notice and finding his reply as unsatisfactory, dismissed him from service. His departmental appeal was also rejected on 25.02.2016 by RPO Bahawalpur, conveyed to him vide Letter No, 6708-9/EA-II dated 22.03.2016.
Feeling aggrieved of the order of dismissal, he assailed both the orders on the grounds that Imtiaz Hussain complainant of 'case FIR No, 75/2015 dated 14.07.2015 u/S. 302, PPC was a known drug peddler; he was present at Jamia Masjid Haji Arshad, Kalma Chowk at Bahawalpur at the time of occurrence and was falsely implicated in the criminal case due to grudge of the complainant and that the authorities proceeded under Punjab Police (Efficiency & Discipline) Rules, 1975, which was not applicable after 30.07.2012; that he had been acquitted from the Court of competent jurisdiction from aforesaid' case and that the authorities imposed major penalty of dismissal from service without conducting any regular inquiry.
2. The respondents in their comments have inter-alia controverted the grounds of appeal and the, contents of the appeal on the ground that he was found guilty of the charges leveled in the FIR as during investigation sufficient material had been collected and the challan was got submitted in the Court of competent jurisdiction and that he was proceeded against by compliance of all provisions of relevant law by way of issuance of a show-cause notice, obtaining of his reply and finding the same as insufficient. The Respondent No, 1 also defended the order of rejection of appeal on the ground that the charge of abuse of official authority has been proved against the appellant without any shadow of doubt, hence the award of punishment of dismissal from service was maintained.
3. The learned counsel for the appellant submitted that the authorities had violated the provisions of Rules 16.2 and 16.3 of Punjab Police (Efficiency & Discipline) Rules, 1975 and that for imposition of major penalty of dismissal from service holding of regular inquiry was sine qua non and that the authorities have flouted the law blatantly. He was of the view that mere registration of a criminal case was no proof of guilt of the accused official to be imposed major penalty of dismissal from service and that the impugned orders are nullity in the eyes of law, which be set aside by accepting this appeal and that the appellant be reinstated into service with all back benefits.
Learned counsel for the appellant put his reliance upon 1998 SCMR 1993, 2000 SCMR 1321, 2002 SCMR 1064, 2007 SCMR 192, 2007 SCMR 855, PLJ 2010 Tr.0 (Services) 103, 2012 SCMR 165 and 2015 PLC (C.S) 366.
4. Learned District Attorney contrarily was of the view that the appellant has a blemished service record as he has been awarded 18 punishments in 13 years' service and that he is habitual in committing such misconduct and the authority has no other option but to proceed against him under the relevant provisions of law. He took exception to the grounds that the authorities have not acted under PEEDA Act, 2016 and that in view of nature of the offence no further inquiry was required at all. He submitted for dismissal of the instant appeal.
5. I have given my anxious thought to the arguments advanced at the bar and by the able assistance of the learned counsel for the appellant and the learned District Attorney have scrutinized the record at length.
6. The impugned order Bearing No, 2121/PA dated 19.09.2015, passed by DPO Bahawalpur carries mention of the allegation and charge against the appellant about excess of official authority and also commission of crime reported through FIR No, 174/2015 at Police Station Saddar Bahawalpur u/S. 382, PPC for alleged commission of torture and extortion of Rs, 15000/- from Imtiaz Hussain, complainant in the aforesaid case. The Paragraph No, 2 of the said order carries mention of the reply of the present appellant that at the time of alleged occurrence he was present on security duty at Jamia Masjid Haji Arshad, Kalma Chowk at. Bahawalpur and that Imtiaz Hussain complainant of aforesaid FIR was a drug peddler against whom numerous cases were registered, the copies whereof were enclosed with the reply. The appellant denied allegations of causing unlawful arrest of the said complainant or committing any sort of torture or extortion of money. The competent authority has stated to have afforded right of personal .hearing to the appellant in orderly room on 18.09.2015 and after considering his reply found the charge of involvement of appellant in FIR No, 174/2015 at Police Station Saddar, Bahawalpur established and consequently he was dismissed from service. Both the respondents in their comments have also nowhere averred that any regular inquiry was got conducted before imposition of the major penalty of dismissal from service and the entire record bears it out that no such regular inquiry was got conducted against the present appellant despite the fact that he had denied the charge of involvement in the occurrence of extortion and had taken the plea of false implication due to grudge of the complainant of the said FIR as numerous cases were registered against him and that on the same ground he allegedly got registered an FIR against the present appellant and others. When such material facts are pleaded in reply to the show-cause notice, such controversial facts could not be proved by issuance of a simple show-cause notice and obtaining a reply thereto. The holding of regular inquiry for such purpose in order to afford a right of hearing and right of cross-examination on the prosecution witnesses is by now an established law of the land, which could not be violated with impunity. Any act contrary to such established principles of law at the part of the functionaries of state cannot be approved, rather same merits disapproval. The authorities also cannot dispense with holding of departmental inquiry in such cases. The Lordships of the Hon'ble apex Court in their reported judgments reported as Lal Muhammad and another 1980 SCMR 850, Province of the Punjab through Additional Chief Secretary, Government of Punjab and another vs. Muhammad Siddique Khan 2000 SCMR 1321, Shakeel Ahmad vs. IG Punjab Police, Lahore & others 2007 SCMR 192, Muhammad fictile and another vs. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others 2009 SCMR 339 and IGP Punjab vs. Tariq Mahmood 2015 PLC (C.S) 366 have laid down these golden principles of law to be followed and observed by the departmental authorities in letter and spirit that where a factual controversy is to be determined, holding of regular inquiry is just and essential and a course contrary to such principles of law cannot be countenanced. Right of defence and fair trial is coveted right of every citizen of the state and it is why Article 10-A now forms part of the Constitution of Islamic Republic of Pakistan, 1973 granting every citizen the right of fair trial, which to my mind is not only relevant for Court trials, rather in qausi judicial proceedings as well because in such proceedings to the rights of citizens are adjudged. The relevant extract from the aforesaid judgments are re-produced with respect for reference as under:-- 2000 SCMR 1321 "----Art. 212(3)--Dismissal from service--Regular inquiry not held--Service Tribunal had rightly concluded that dismissal of civil servant from service and subsequent reduction in punishment were violative dictum laid down by Supreme Court in the case of Lal Muhammad and another 1980 SCMR 850 and thus both the orders were set aside--Petition for leave to appeal filed by the Department against the judgment of Service Tribunal being without merit, was dismissed in circumstances."
(C) Punjab Police (Efficiency & Discipline) Rules, 1975-- "----Rr. 3, 4, 5 & 6--Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S.3-- Constitution of Pakistan (1973), Art. 212 (3)--Dismissal from Service due to pendency of criminal case against police official--Validity--Unless such official was found guilty, FIR would remain an unsubstantiated allegation and on its basis maximum penalty could not be imposed--After acquittal of such official from criminal case on the basis of compromise, allegations in show-cause notice remained unsubstantiated--Authority had not provided opportunity to such official to submit reply to show-cause notice--Such official had been punished without any evidence-- Supreme Court set aside such penalty, directed reinstatement of such official in his substantive rank, but he has to remain under suspension--Competent authority was directed to hold fresh inquiry under Punjab Removal from Service (Special Powers) Ordinance, 2000 and pass fresh order in accordance with law."
(d) Civil Service-- "----Disciplinary proceedings--Disputed questions of fact--Regular inquiry should be held, so that accused official be in a position to defend himself." 2009 SCMR 339 "(a) Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss. 3, 5(4) & 10--Constitution of Pakistan (1973), Art. 212 (3)--Dismissal from service--Employee of Pakistan Railways--Charge of illegal supply of water and electricity belonging to Railways to residents of a colony--Imposition of such penalty by authority after considering appellant's reply to show-cause notice without holding regular inquiry-- Submission of legal notices by appellant through his Advocate instead of filing departmental appeal--Dismissal of appeal by Service Tribunal for non-filing of departmental appeal by appellant--Validity--Such charges could have been proved only by producing evidence showing appellant to reason as to why there was no need to hold inquiry and how such factual charges were taken to be proved without holding an inquiry-Validity--Holding of inquiry was essential to prove such charges of fact and the same could not be dispensed with--When initial order or act relating to initiation of proceedings was contrary to law then all subsequent proceedings and actions taken thereon would. have no basis and would fall-Department had penalized appellant without complying with provisions of law--Such legal notices could not be equated/treated as appeal under Removal from Service (Special Powers) Ordinance, 2000-- Tribunal had entangled itself in technicalities and completely ignored such illegalities committed by department--Entire process initiated against appellant for his removal from service smacked of mala fides and animosity besides lacking legal sanctions--Supreme Court Set aside impugned order and ordered for appellant's immediate reinstatement with all back-benefits.
(b) Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss. 3 & 5(4)--Charge of misconduct or allegation of fact-Proof--Holding of regular inquiry in such-like cases would be essential and dispensation therewith was not permissible--Reasons stated.
Where the allegations/charges/misconduct is of the nature requiring production of evidence to prove the same, then holding of .a departmental inquiry is a necessary condition and dispensation therewith, cannot be made as in the first place, there would be no evidence or material in possession of the department to establish and prove the charges/allegations of fact and secondly, that the civil servant proceeded against would be deprived of his right to defend himself properly as it would not be possible for him to cross-examine the witnesses, who would depose against him and from their cross-examination, he could not elicit favourable and beneficial statements."
"(c) Administration of Justice-- --When initial order or act relating to initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall."
7. Another aspect of the present case is that while the appellant was proceeded against merely on the basis of registration of a criminal case and submission of challan against him, the Court of competent jurisdiction acquitted him of the charge in the aforesaid case FIR No, 174/2015 vide judgment dated 24.03.2016. The learned District Attorney had maintained that the disciplinary proceedings as well as criminal proceedings before a Court of law can simultaneously run and there is no cavil to this preposition of law that the disciplinary proceedings being distinct from the charge of criminal case had to be decided at their own strength and irrespective of the fate, of criminal case. This rule is however circumscribed by the provisions of Rule 16.2 and 16.3 of the Police Rules, 1934 and the departmental authorities are refrained from proceeding under Punjab Police (Efficiency & Discipline) Rules, 1975 merely on registration of FIR. The Hon'ble apex Court in this regard has laid down the principle in Shakil Ahmad vs. IGP Punjab and others 2007 SCMR 192 that after acquittal of the appellant, the allegations contained in the show-cause notice remained unsubstantiated and unless such person is found guilty, the unsubstantiated facts could not form ground of imposition of major penalty unless a regular inquiry was held.
8. The acquittal of the present appellant from the Court of competent jurisdiction has awarded him a status of a non-guilty person on the alleged charges and it has to be presumed that he had committed no offence at all. The Hon'ble apex Court in its glorious judgment reported as Dr. Muhammad Islam us. Govt. of NWFP through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and two others 1998 SCMR 1993 has laid down that when no evidence was brought against an accused civil servant on the charge it proves that such allegations leveled against him were baseless and his acquittal was to be considered that he had committed no offence at all and the civil servant was entitled to grant of arrears of pay and allowances in respect of the period he remained under suspension (dismissal in present case). The Hon'ble apex Court had further held that all acquittals are honourable and there can be no acquittal which can be said dishonourable. This view was reiterated in other judgments titled General Manager/Circle Executive Muslim Commercial Bank Limited and another us. Mehmood Ahmad Butt and others 2002 SCMR 1064 and Muhammad Hussain and others vs. EDO(Education) and others 2007 SCMR
855. In a latest judgment reported as IGP Punjab vs. Tariq Mahmood 2015 PLC (C.S) 366 a civil servant proceeded on the basis of allegation of involvement in FIR and later on acquitted was held to be entitled to all such service back benefits on his reinstatement in service.
9. In peculiar facts of this case a question has arisen as to whether in case of setting aside of the impugned orders this Tribunal should direct the respondents to initiate a fresh inquiry or otherwise.
In view of the facts and the law discussed hereinbefore the disciplinary proceedings in the present case were initiated in violation of the provisions of Rule 16.3 of the Punjab Police Rules, 1934 and the fate of the criminal case ended up in acquittal of the appellant after recording statements of all witnesses and the complainant as evident from the certified copy of the judgment dated 24.03.2016 of Judicial Magistrate Section-30, Bahawalpur. Therefore, in case of a direction for initiation of fresh inquiry on such allegations, which could not be proved before a Court of competent jurisdiction it may again end up in non-proving of the charges in inquiry. Hence, in such circumstances I feel that it would be more appropriate to leave the matter of initiation or non- initiation of fresh inquiry to the authorities concerned and if they initiate a regular inquiry against the appellant on the same charges this judgment would inquiry is passed, that would compel the administrative authorities to initiate-most likely-a futile exercise, therefore, I would refrain myself from passing any such order.
10.Since in the present case, the appellant had been I proceeded against merely on the basis of lodging of FIR against him without conducting a regular inquiry and the appellant has been acquitted from the Court of competent jurisdiction thereby giving rise to presumption of his innocence and disciplinary proceedings were initiated in violation of established law of the land, hence for the aforesaid reasons the instant appeal, which had been preferred well within time, is accepted. The impugned orders are set aside and the appellant Muhammad Majid, Constable is reinstated into service and the period of his dismissal would be considered as leave of the kind due. The appellant would be refunded the security amount of Rs, 100/-deposited by him.