SHOUKAT ALI MEMON, MEMBER-I --- Vide short order dated 27.10.2017, we have allowed the both appeals reading as under:-- "For reasons to be recorded later on, we are of the view that the impugned orders dated 07.3.2017 and 03.07.2017 are void ab initio and were not passed after affording an ample opportunity to the appellant to rebut the evidence produced in inquiry so also Shabir All Abbasi, SHO P.S. Bhirya city had been reinstated in service and posted at Larkana range by the Additional inspector General of Police vide order dated 05.5.2017. Since the case of the appellant cannot be discriminated in view of the Article-25 of the Constitution of Islamic Republic of Pakistan, therefore, above impugned orders are set aside. The appellant is reinstated in service with all back benefits, with the direction to the competent authority to hold regular inquiry into the matter after affording opportunity to the appellant to produce evidence and defence in terms of Section 5(1) of the Removal from Service (Special Powers) Sindh Ordinance, 2000. Orders accordingly."
2. Since both service appeals involve common question of law and facts and were also disposed of by common short order, therefore, reasons thereof are discussed collectively, however, Service Appeal No, 727/2017 is treated as leading appeal.
3. According to the facts as narrated in the memo. of appeal, the appellant was appointed as Constable in Sindh Police and while posted in Special Team in Sindh Police at District Naushero Feroze, was served with show-cause notice dated 17.01.2017 to the effect that during enquiry into an application of one Abdul Bari Kakar against special team concluded by SSP Shaheed Benazirabad, it proved that applicant/Abdul Bari Kakar was released sifter acceptance of illegal gratification thus, appellant was an inefficient officer. His reply to show-cause notice though submitted did not find favour with respondent No, 2 and was followed by final show-cause notice dated 24.01.2017, the reply whereof allegedly was not considered and appellant was awarded the major punishment of dismissal from service vide original impugned order dated 07.03.2017.
4. The departmental appeal although was rejected by respondent No, 1 vide order dated 03.07.2017 but remained uncommunicated and was made known to the appellant on 28.07.2017 when he visited the office of respondent No, 1 to know the fate of his appeal and upon information he collected the copy on 31.07.2017 from the office of SSP Naushero Feroze.
5. Finally, appellant preferred this service appeal under Section 4 of the Sindh Service Tribunals, Act, 1973 r/w Section 10 of the Ordinance, 2000 on the grounds contained in memo. of appeal praying as under:--- "(a) To declare that the original impugned order dated 07.03.2017 and appellate order 03.07.2017 are void ab initio, unlawful and passed by the incompetent authority and be set aside the same to the extent of appellant.
(b) To direct the respondents to reinstate the appellant with all back financial and consequential benefits.
(c) any other relief which this Honourable Tribunal deem fit."
6. The respondent No, 1 in his written statement for paras 01 to 03 of the facts and 01 to 17 of the grounds of the appeal expressed his no concern. For paras 04 to 05 he admitted to have rejected the departmental appeal and prayed for dismissal of service appeal with costs in the best interest of justice.
7. The respondent No, 02 in his written statement while giving the details of complaint made by one Abdul Bari Kakar (Annexure-A) has affirmed to have assigned the natter to the. Incharge Complaint Cell Range Office, Shaheed Benazirabad and further confirmed the findings of he enquiry (Annexure-B) against the members of the special earn including appellant holding him responsible for illegal gratification and extortion of money as well as returning of he cash amount of Rs, 247,000/- to the applicant/complainant in presence of enquiry officer. He has further stated that matter was further assigned to the SSP Shaheed Benazirabad whose report revealed that the 'negations leveled by the complainant about his final treatment stood proved and recommended for dismissal )f special team members as black sheep in the police department bringing bad name to it. About show-cause notice dated 07.02.2017, it is stated that no reply was submitted by the appellant within stipulated time, therefore, was followed by final show-cause notice' dated 24.01.2017 and after calling him in person alongwith others on 07.03.2017 and after hearing them, being dissatisfied was awarded a major punishment of dismissal from service vide impugned Order.
8. The rejection of departmental appeal is also admitted with the prayer that appeal be rejected in the interest of justice.
Heard arguments.
9. The main crux of the arguments of the learned counsel for the appellant are that the impugned order has been passed by respondent No, 02 being incompetent person as he was not authorized to award the major punishment of dismissal from service under Sindh Police (Efficiency and Discipline) Rules, 1988 as according to learned counsel Superintendent of Police is the competent authority for such punishment to the Police Constables.
10. It is next argued that other members of the special team, Shabbir Ali Abbasi, SHO, P.S. .Bhiria City having same allegations has been reinstated in service and posted at Larkana Range by Addl. I.G. of Police vide order dated 05.05.2012, therefore, appellant has been discriminated by rejection of the departmental. appeal, in view of Article 25 of the Constitution of Islamic Republic of Pakistan.
Lastly, it is argued that he was never posted at Bhiria City nor had participated in the team of Bharia City or special team rather under directions of Superintendent of Police, Naushero Feroze while posted at Police lines Naushero Feroze was ordered to report to CIA Centre, Naushero Feroze with further directions to report at special team Naushero Feroze, thus according to learned counsel, the appellant was falsely implicated in the issue of arrest and release of applicant/complainant Abdul Bari Kakar.
11. Conversely, learned Addl. A.G. could not rebut the factual aspects as well as legal position as asserted by learned counsel for the appellant therefore, we are of the : view that When charge was against entire special team of P.S. Bhiria City and when SHO, Bhiria City Shabbir Ali Abbasi of P.S. Bhiria City for the similar incident was reinstated, the appellant apparently has made out case of discrimination as envisaged by Article 25 of the Constitution of Islamic Republic of Pakistan, therefore, vide short order we have allowed the appeals and these are the reasons thereof.