JUSTICE (R.) QAISER IQBAL, CHAIRPERSON --- This appeal under Section 4 of the Sindh Service Tribunals Act, 1973 has been preferred by the appellant.
2. Brief facts of the case are that the appellant while serving as Police Constable in Investigation at P.S. Sh. Noor Jahan, West Zone, Karachi was awarded major punishment of removal from service by respondent No, 2 vide order dated 20.11.2013 on the ground that he is mixed-up with anti-social elements and disclosing official secrets/information to the drug peddlers & other unauthorized persons.
Appellant preferred departmental appeal against order dated 20.11.2013 on 30.12.2013, which remained undecided, in the meanwhile, appellant preferred Service Appeal No, 1549/2016 before this Tribunal which was dismissed being barred by law of limitation vide order dated 22.11.2016.
Thereafter, on the departmental appeal dated 30.12.2013 was accepted by Addl. Inspector General of Police, Sindh, Karachi, order dated was set aside and appellant was reinstated in service vide order dated 08.12.2016, which is reproduced hereinbelow:--- OFFICE OF THE INSPECTOR GENERAL OF POLICE SINDH, KARACHI No, /E-III, Karachi dated . 12.2016 Read:- (i) Major punishment of Dismissal from service by the DIGP/West Zone Karachi vide order dated 20.11.2013 in respect of Ex. PC-12734 Muhammad Anees.
(ii) Petition submitted by Ex.PC-12734 Muhammad Anees of Karachi Range, for reinstatement in service.
(iii) Comments furnished by Addl. IGP Karachi Range vide his letter No, EB/VI/Appeal/15- 38621/Karachi, dated 14.04.2015.
Heard in person. He was awarded major punishment of "Dismissal from Service" by DIGP West Zone. There are two major procedural flaws in award of punishment. First, his 'competent authority is SSP Central and he should be the one to initiate DP against him. Secondly, no regular departmental enquiry was conducted before award of punishment. Hence, his appeal is accepted. Impugned order of major punishment is hereby set aside and DIGP West Zone is directed to remand back his case for de novo proceedings against him and further decided his out of service period. He is re posted to west zone, Karachi. Sd/- (DR. SANA ULLAH ABBASI) QPM, PPM PSP ADDL. INSPECTOR GENERAL OF POLICE SINDH, KARACHI On 20.12.2016 appellant was served with a show-cause notice dated by respondent No, 2 which was replied by appellant. Subsequently, on 24.01.2017, appellant was issued a final show-cause notice.
Ultimately, Appellant was awarded major punishment of Forfeiture of Approved Service for two (02) years vide impugned order dated 24.02.2017. Being aggrieved, appellant filed departmental appeal against order dated 24.02.2017 which was rejected by respondent No 1 vide appellate order dated 20.06.2017. Hence this appeal with the following prayers:--
(i) To hold that the impugned order dated 24.02.2017 and appellate order dated 20.06.2017 are against the law and liable to be set aside.
(ii) To set aside the impugned and appellate orders and directed the respondents to withdraw the penalty awarded to the appellant and allow him the entire consequential benefits including the intervening period i,e, from 20.11.2013 to 08.12.2016.
3. The respondent No, 1 in the written statement submitted that appellant preferred an appeal against major punishment of forfeiture of approved service for two years which was rejected vide order dated 20.06.20.17 in the light of inquiry report dated 18.01.2017 conducted by SP New Karachi Division.
4. The respondent No, 2 in the written statement submitted that the appellant, a Constable in Investigation of PS Sharah Noor Jahan, was awarded major punishment of Removal from Service by the then DIGP West Zone on 20.11.2013 on receipt of, a source report that he was mixed up with anti-social elements & disclosing official secrets to the drug peddlers. The appellant preferred the departmental appeal to the Addl. IGP, Karachi which was decided on 8.12.2016, the order from Removal of Service was set aside and the DIGP West Zone was directed to remand back his case for de novo proceedings against him. A Show Cause Notice was issued to the appellant by the DIGP West Zone on 20.12.2016, on the grounds that while he was posted at Investigation of PS Sharah Noor Jahan, a source report was received that he was mixed-- up with anti-social elements and disclosing official secrets/information to the drug peddlers & other un-authorized persons. A Final SCN issued' to the appellant by the DIGP West Zone on 24.01.2017 after conducting enquiry by SP New Karachi Division and found that he was collecting Beat for SHO and SI() of PS Sharah Noor Jahan while having close terms with drug peddlers Abbas Afridi. The appellant has submitted his reply to SCN/FSCN and also heard in person by the DIGP West Zone in Orderly Room but his written as well as oral explanations were found un-satisfactory. Hence he was awarded major punishments of Forfeiture of Approved Service for Two Years by the DIGP West Zone on 24.02.2017, prayed for dismissal of appeal.
5. We have considered the arguments advanced at Bar and perused the record of the case.
6. Learned counsel for the appellant has contended that the impugned orders suffers from inherent defect the order was not passed by the competent authority, the proposed action imposing penalty of forfeiture of approved service for two years is not in accordance with the law, the enquiry report dated 18.01.2017 is not in consonance with Section 5(1) of the Removal from Service (Special Powers) Sindh Ordinance, 2000. Neither the appellant has been given an opportunity to contest the enquiry nor the findings of the enquiry, attracts the penalty imposed upon the appellant. It is next urged that Police Rule, 12.1 describes SP as appointing authority of a Police Constable and under Sindh Police (Efficiency & Discipline) Rules, 1988 powers have been conferred on SP to award major punishment. The order dated 24.02.2017 of DIG of Police, West Zone is reproduced herein below in extenso:--- "OFFICE OF THE DEPUTY INSPECTOR GENERAL OF POLICE WEST ZONE, KARACHI Tel: 021-99.246183. Fax:021-99246185 digwestzone@gmail.com NO. DIGP/WZ/EB/DP/12074-77/2017 KARACHI DATED 24.02.2017
Constable. No, 12734 Mohammad Anees of HQ West Zone was issued a show-cause notice vide No, DIGP/WZ/EB/DP/65184, data 20.12.2016 and also issued FSCN vide No, DIGP/WZ/EB/DP/5246, dated 24.01.2017, on the grounds of action: --- "While you were posted at Inv-PS Sh. Noor Jehan, West Zone, Karachi, a source report was received against you that you were mixed-up with anti-social elements and disclosing official secrets/Information to the drug peddlers & other unauthorized persons. Particularly you have close relations with famous drug peddler Abbas Afridi. The state of affairs has established that narcotics dens were being operated through your abetment and criminals consent and you were patronizing drug peddlers in the area of PS Sh. Noor Jehan. Your conduct depicts that you were engaged in subversive activities which was highly objectionable & prejudicial to good order. Your retention in service would affect the discipline/morale of the force adversely.
Being member of discipline force, the above act on your-part amounts to gross misconduct, inefficiency, negligence on your part. Thus you rendered yourself liable for disciplinary action under Removal from Service (Special Powers) Ordinance, 2000."
2. Mr. Rizwan Ahmed Khan, PSP SP/New Karachi Division, Karachi was nominated as enquiry officer vide this office No, DIGP/WZ/DP/65182-83, dated 20.12.2016, who conducted the enquiry and furnished his recommendation vide his office No, SP/NK/PCA/5367, dated 18.01.2016 that after perusal of written statement, the Enquiry Officer has reached on conclusion as under:--
(1) Police Constable No, 12374 Mohammad Anees of Inv-PSSh, Noor Jehan was charged as per source report, he was mixed up with anti-social elements and disclosing official information to the drug peddlers and particularly he has close relation with famous drug peddler Abbas Afridi. He was Dismissed from Service vide order No, DIGP/WZ/DP/62824-28, dated 20.11.2013.
(ii) He has been reinstated into Service by the order of IGP/ Sindh vide No, 20625-26/E-III, dated 08.12.2016.
(iii) During the course of enquiry PC Mohammad Anees has denied the charges. While (1)
Inspector Tariq Mehmood former SHO Sh. Noor Jehan (2) ASI. Faheem Chishti, former WASI Sh.
Noor Jehan. PS (3) SI Zulfiqar Ali Shah, former SIO Sh. Noor Jehan PS have stated that there was no complaint against PC Mohammad Anees reason best known to them.
(iv) It is pertinent to mention here that as per source, during posting at Investigation Brameh, PC Mohammad Anees was collecting Beat for SHO and SIO of Sh. Noor Jehan PS while he had closed terms with drug peddler namely Abbas Afridi and he (PC) Anees has played active role in illegal business of narcotics in the limits of Sh. Noor Jehan PS.
3. The respondent has submitted that replies to the SCN/FSCN and also heard in person by the undersigned in Orderly Room, held on 22.02.2017. His written as well as oral explanations were considered at length and found unsatisfactory, as he could not advance cogent reasons to repudiate the allegations against him. Hence agreeing with the recommendation of enquiry officer-cum-SP/New Karachi Division, Karachi, he is awarded major punishment Forfeiture of Approved Service for Two Years. His out of service period is treated as leave without pay. (ZULFIQAR ALI LARIK) PSP, DEPUTY INSPECTOR GENERAL OF POLICE WEST ZONE, KARACHI"
8. It is further contended that the enquiry report is not in consonance with law as number of witnesses examined during the enquiry either exonerated the appellant or submitted that they were ignorant of the facts leading to the complaint against the appellant.
9. However, it is observed in the enquiry report as under:-- "It is pertinent to mention here that as per source, during posting at Investigation Branch, PC- Muhammad Anees was collecting Beat for SHO and S.I.O. of Sh. Noor Jahan PS while he had closed terms with the drug peddler namely Abbas Afridi and he (PC) Anees has played active role in illegal business of narcotics in the limits of Sh. Noor Jahan PS."
10. Learned Additional Advocate General has attempted to argue the matter on the basis of written statement submitted by the respondent Nos, 01 & 02 and submitted that the action was taken against the appellant on the basis of the direction against the appellant after conducting enquiry by SP New Karachi Division as the appellant was found collecting Beat for SHO and SIO Sh. Noor Jahan PS and having closed relations with the drug peddlers, therefore, the impugned orders are inconformity with law and appeal is liable to be dismissed.
11. We have considered the arguments advanced at Bar Appellant has been taxed twice on the basis of the source report that he had mixed up with anti-social elements by disclosing official secrets/information to drug peddlers & others. DIGP, West Zone, Karachi vide order dated 20.11.2013, awarded major punishment of Removal from Service. Consequence thereof departmental appeal was preferred, appellant was reinstated in service by the Inspector General of Police, Sindh vide order dated 08.12.2016 penalty was not awarded by the competent authority viz. SSP Central, therefore, it was directed that he should initiate de novo proceedings against the appellant and secondly, no regular departmental enquiry was conducted before award of punishment, the appellant was reinstated in service. A consequence thereof action was again taken by the incompetent authority, whereby the punishment of forfeiture of approved service for two years was awarded on 24.02.2017, on departmental appeal his request was not acceded to which was rejected on 20.06.2017.
12. We have considered the arguments advanced at Bar and the endorsed arguments of learned counsel for the appellant, the action against the appellant was not taken by the competent authority, the same facts were found for the action by the Addl. IGP. Firstly, the competent authority did not act according to law. Secondly, de novo enquiry held in the case of the appellant was not inconformity with Section 5(1) of the RSO, 2000 which reads as follows:--- "S. Power to appoint an Inquiry Officer or Inquiry Committee. --
(I) Subject to the provisions of sub-section (2), the, competent authority shall, before passing an order under Section 3, appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in Section 3. The Inquiry Officer or, as the case may be, the Inquiry Committee shall:---
(a) Communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the Competent Authority;
(b) require the accused within seven days from the day the charge is communicated to him to put in a written defence;
(c) enquire into the charge and may examine such oral or documentary evidence in support of the