A. O. RAZIUR RAHMAN (MEMBER).-The appellant, who was appointed to the Police Service of Pakistan on November, 1966, was posted at Faisalabad as S.P., when, on 16th August. 1975 he was placed under suspension and served with a show cause notice on charge of misbehaving with Miss Sarosh Sultan, Assistant Commissioner (under training) at Faisalabad on 2nd July, 1975. The appellant replied to the show-cause notice on 21st August, 1975 whereafter, by an order dated 20th November, 1975 bearing Establishment Division No. 9/52/75-C. II, he was dismissed from service.
This was communicated to him on 26th November, 1975. Thereafter, the appellant filed a review petition, which having been rejected by the authority, the appellant preferred an appeal before the Tribunal, which, by its judgment, dated 3rd March, 1979 in case No. 38 (L)/1976, ordered his re- instatement with effect from the date he was dismissed from service with all consequential benefits accruing to him in continuity of service. Consequently, the President re-instated him in service and this was published through a Notification bearing No. 14/1/78-C.lI (A), dated 8th July, 1979. However, through the same Notification, the Authorised Officer, with the approval of the Authority, placed him again under suspension with immediate effect, under clause 1 of sub-rule (1) of rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. On 20th July, 1979 he was served with a charge sheet and a statement of allegations, both of which are reproduced below :- "Charge-sheet.-Whereas, you, Mr. Avais Mazhar Hussain while posted as S.S.P. Faisalabad, on 2nd July, 1975 picked up Miss Sarosh Sultan, Assistant Commissioner (then under training) at Faisalabad, from the residence on the pretext of taking her to the dinner at the Circuit House, Faisalabad. Can the way you made a detour and inveigled her into going to the house of an income-tax Officer who was not present in the house and there behaved towards her indecently and tried to outrage her modesty.
(2) And whereas the above act constitutes gross misconduct in terms of Government Servants (E&D) Rules, 1973.
(3) And whereas it has been decided by the President that an inquiry should be held against you under the said Rules.
(4) And whereas the President is of the opinion that the aforesaid charge, if established, would call for a major penalty specified in rule 4 of the Rules ibid.
(5) And whereas Mr. S.M. Nawab OSD/JS (Inquiries) is appointed Inquiry Officer under rule 5 read with rule 6 of the Rules ibid to conduct proceedings of the inquiry against you.
(6) Now, therefore, you, Mr. Avais Mazhar Hussain, are required under sub-rule (lf) of rule 6 of Rules ibid to put in your written defence to Mr. S.M. Nawab, OSD/J.S. (Inquiries), Establishment Division within 14 days of the receipt of this charge-sheet and also to state whether you desire to be heard in person.
(7) A statement of allegations explaining the charge is also enclosed."
"Statement of allegations.-Mr. Avais Mazhar Hussain, while posted as S.S.P. Faisalabad, went on 2nd July, 1975 to the residence of Miss Sarosh Sultan, former Assistant Commissioner (then under training), Faisalabad, on the pretext of taking her to the dinner at the Circuit House, Faisalabad, where he was not invited. On the way she noticed his car taking a detour. She asked him that that was not way to the Circuit House. He replied that he had also to pick up another friend, Mr. Nisar, an Income Tax Officer, and it would not take more than few minutes. He then reached a house outside of which there were two peons. Mr. Avais alighted and went inside that house but before going inside, he asked Miss Sarosh to accompany him to which she replied that she was better sitting in the car. He told her that she should act like an officer and not as a woman. Thereafter, she accompanied him inside the house. She found no one in the house. Mr. Avais started misbehaving and she was completely shocked to witness his behaviour. He grossly misbehaved with her and tried to violate her but she put up a fight and succeeded in saving her honour."
The appellant- replied to the charge-sheet on 11th August, 1979 and the Enquiry Officer held the inquiry in February/March, 1980. The Enquiry officer, originally appointed, having been posted elsewhere, a new Enquiry Officer, Brig. M.A. Ghori, Joint Secretary in the Establishment Division, replaced him as Enquiry Officer in the case. After the conclusion of the inquiry, the appellant was once again dismissed from service by order bearing No. 14/1/78-C. II (A), dated 13th July, 1980 on the charge of misconduct. The appellant filed a review petition, addressed to the President, under rule 10 of the Government Servants (E&D) Rules, 1973, followed by a supplementary petition on 22nd September, 1980, after consideration of which, by the competent authority, the penalty of dismissal was altered into removal from service, by order No. 14/1/78-C. II (A), dated 27th January, 1981. In the meantime, the appellant had already preferred an appeal, under section 4 of the Service Tribunals Act, 1973, before this Tribunal, on 10th August, 1980 against the dismissal order dated 13th July, 1980, which had been admitted for hearing on 29th December, 1980. The hearing took place on 13th May, 1982 and is being disposed of by this order.
2. The main grounds on which the appeal has been preferred are summarised below :-
(1) The order of suspension, dated 8th July, 1979 was illegal and ab initio, void since it placed the officer under suspension `until further orders', while, under rule 5 of the Government Servants (E&D)
Rules 1973, a Government servant cannot be suspended for more than 3 months at a time and, therefore, the order of dismissal passed in pursuance of the suspension order is also void and illegal.
(2) The order of the Service Tribunal having not been implemented, as required by law and no reason given for the suspension, the action was unlawful.
(3) The charge-sheet, served aver the second suspension, being based on the same facts which formed the subject-matter of the first show-cause notice issued 4 years earlier, and the earlier orders of dismissal having been set aside in appeal, by the Federal Service Tribunal, was illegal, as it amounted to vexing an individual twice on the same charge. In this connection, it was argued, on behalf of the appellant, that, as observed by the Honourable Lahore High Court in the case of Abdur Razzaq Malik v. WAPDA vide PLD 1973 Lab. 188 at pp. 196-97 once a person has been punished by the competent authority the matter cannot be reopened to his detriment. A second charge-sheet was, therefore, not competent in such a case.
(4) Since the State had not appealed against the Tribunal's decision on the previous appeal of the appellant, the said order reinsta--ting the petitioner became final and could not be set aside by serving a second charge-sheet on the same facts, as this amounted to non-compliance with the Tribunal's order and circumvention of the relief granted to the appellant by an executive action of Government, which clearly indicated mala fide and resulted in contempt of Court.
(5) Setting aside of the dismissal order meant that the appellant was not guilty and, therefore, he could not be tried again.
(6) The dismissal order cannot be sustained, because the appellant had been found not guilty, both by the Tribunal in the previous appeal and by the Enquiry Officer appointed after the second suspension.
(7) Although under sub-rule (1) of rule 5 of the Government Servants (E & D) Rules, 1973, the authorised officer has to determine whether the charge has been proved or not, the authorised officer had not, according to the information of the appellant, given a definite finding that the charge against him had been proved. In any case, no such finding had been communicated to him and, although he had been informed that the authority had dis--agreed with the finding of the Enquiry Officer, the reason for the disagreement had not been conveyed to the appellant. This, it is claimed, is a violation of the relevant rules rendering the action taken a nullity in the eye of law.
(8) The dismissal order is based on a complaint that had been proved to be false.
3. From the respondent's side most of the points raised by the appellant have been contested. The gist of their stand may be noted as under:
(i) It is incorrect to say that the suspension order, dated 8th July, 1979, is a nullity in law, because it is not true that the suspension was `until further orders.' Actually extensions of the suspension period were ordered after every 3 months. With the approval of the authority.
(ii) It is incorrect to say that the Tribunal's orders in the previous appeal case were not implemented. The appellant was duly rein--stated in service and the entire period of his absence from duty during the period of suspension followed by dismissal up to the date of his re- instatement was treated as period spent on duty. His second suspension was ordered with a view to holding a proper inquiry and giving the appellant full opportunity to defend him--self, once the Tribunal had set aside the penalty on a purely technical ground of procedural lapses, with the indication that the appellant should have been afforded full opportunity to defend himself. The re- opening of the case and holding of formal inquiry was thus fully justified.
(i.e) It was not correct to say that the authorised officer did not apply his mind and that he did not express. a definite opinion on the findings of the Enquiry Officer. On the other hand, not being in agreement with the findings of the Enquiry Officer, he recom--mended to the authority the imposition of the major penalty of removal from service.
(iv) Although it is true that the reasons of disagreement of the authorised officer with the findings of the Enquiry officer had not been conveyed to the appellant, no prejudice was caused to him in his defence on account of the fact that the reasons of the disagreement had not been conveyed and the rules did not require that the reasons of disagreement should also be conveyed.
(v) The action taken against the appellant was fully justified by the nature of the offence, which, in the opinion of the authorised officer, had been established as a result of the enquiry held in the matter.
4. After hearing both the parties at great length and minutely per--using the entire record of the case, we are fully satisfied that neither on legal grounds nor on grounds of fact any case is made out for interference with the orders passed by the competent authority in the matter.
5. To take up first the legal issues raised by the appellant. From a perusal of the Notification dated 16th August, 1975, bearing No. SC-II--PF/148/PSP, issued by the Government of the Punjab, Services and General Administration Department, it is observed that the officer was placed under suspension with the approval of the Government of Pakistan, with immediate effect. It does not mention that the suspension was till further order. It is also observed that when the officer was re- instated after the Tribunal's judgment and simultaneously again placed under suspension by Notification No. 14/1/79-C. II(A), dated 8th July, 1979, it was clearly stated that he was "placed under suspension with immediate effect." There was no mention of the suspension being till further orders. On the contrary, copies of the orders on the relevant file of the Establishment Division show that the period of suspension was extended from time to time, by orders of the competent authority, namely, the President. There is, therefore, no merit in this point raised by the appellant.
Similarly, the contention that the order of the Service Tribunal had not been implemented and that, no reason having been given for the second suspension, the action taken was unlawful, is both factually and legally not valid. The order of the Service Tribunal was for the "re-instatement of the appellant from the date of his dismissal, with all consequential benefits accruing to him in continuity of service". The Notification, dated 8th July, 1979, to which reference has already been made above, not only re-instated the appellant in service but also stated that the period between the suspension of the officer and his dismissal was to be treated as on duty. Thus, the Tribunal's order was fully implemented. The simultaneous suspension of the officer once again was made under rule 5(t) (i) of the Government Servants (E & D) Rules, 1973, which do not require that the reasons for the suspension should be mentioned in the Notification. However, in the charge-sheet served on the appellant on 13th July, 1979, alongwith the statement of allegations not only the reason for the suspension had been given but details of the allegations against him were also fully mentioned. There was no illegality in the procedure followed.
6. There might appear to be some force in the contention of the appellant that double jeopardy was caused to him when he was proceed--ed against twice on the same charge, based on the same facts and evidence. But, such a view can result only from a superfluous understanding of the mater. The Service Tribunal, by its former order setting aside the punishment given to the officer, did not close the doors to his retrial on the same charge and on the basis of the same allegations.
What the Tribunal had said, in its judgment, was that an irregular pro--cedure was followed during the proceedings against the officer under the Government Servants (E & D) Rules, which rendered it ab initio void. Since it had not found the officer to be not guilty there was no bar to fresh proceedings being drawn up against the officers on the same charge in accordance with the relevant rules on the subject. It was thus, in the nature of a retrial which is undertaken in criminal cases when the earlier proceedings are quashed for technical reasons. The reference made to the Lahore High Court's judgment in the case of Abdur Razzaq Malik v. The Water and Power Development Authority (PLD 1973 Lah.188) is not relevant, since the said ruling of the Lahore High Court is; entirely different from what has been enunciated by the learned counsel for the appellant, The Lahore High Court's ruling in the case referred to is in the following words : "Once an employee has been punished by the competent authority a matter cannot be reopened to his detriment. The second charge--sheet, therefore, could not form the basis of the punishment meted out to the petitioner as he had already been punished to it."
7. The contention that the State had not appealed against the Tribunal's decision on the previous appeal of the appellant and, therefore, the orders re-instating the appellant became final and could not be set aside by serving a second charge-sheet on the same facts, is also not acceptable, because the Tribunal's orders declaring the former proceeding null and void did not adjudicate on the merits of the charge against the appellant and, therefore, did not close finally the issue but merely quashed the proceedings. There was, therefore, no non-compliance with the Tribu--nal's orders, as alleged, or any circumvention of the relief granted to the appellant.
8. Similarly, setting aside by the Tribunal of the first dismissal order did tot amount to a verdict that the appellant was not guilty. He could thus be tried once again without contravening the Tribunal's order or the relevant law on the subject.
9. As regards the points raised on the merits of the charge against the appellant, we observe that it has been claimed by the appellant that he had been found not guilty both by the Tribunal in the previous appeal and by the Enquiry Officer appointed after the second suspension. ` It has also been claimed that the Authorised officer has not given a definite finding of the charge having been proved against the appellant and that the reasons for the disagreement of the Authority with the Enquiry officer's finding had not been conveyed to the appellant. Moreover; it was claimed that the dismissal order was passed on a complaint that had been proved to be false. In a nutshell, the appellant's stand was that the final order passed by the Authority in the case was faulty not only because it was not justified by the evidence on record but also because it was contrary to the findings and recommendations of the Enquiry Officer and not in accordance with the recommendation of the authorised Officer. These points would call for a close scrutiny.
10. As already observed earlier, the Tribunal's judgment, setting aside the previous order of dismissal, did not contain any finding on the merits of the charge against the appellant and there was no verdict of not guilty in favour of the appellant, who was re-instated only because the proceedings against him had been conducted in an irregular manner. There was also no basis for the claim, made on behalf of the appellant, that the complaint had been proved to be false. There is no finding to this effect in the report of the Enquiry Officer, who has only "come to the conclusion that the prosecution side has failed to substantiate the charge levelled against the accused officer.
The benefit of their state--ment goes in favour of the accused officer. Hence the charge is not proved." As against this, the finding of the Authorised Officer was that an incident giving rise to the complaint did take place .....................For a senior officer of a disciplined force to have indulged in such undignified behaviour was particularly objectionable." He also recom--mended as follows:- "Establishment Division are of the view that the retention in service of such an officer would have an adverse effect on the morale and discipline of the Police Service. It is also felt, however, that in view of the relative young age of the officer and length of service, the end of justice would be sufficiently served if the penalty of removal from service (rather than dismissal) is imposed on the accused officer. It is accordingly recommended that the accused officer, Avais Mazhar Hussain, may be removed from service."
It is clear from the above that Authorised Officer had come to a definite finding with regard to the charge against the appellant having been proved and the appellant's objection on this point iq without any merit.
11. As for the reasons for the Authority disagreeing with the findings of the Enquiry Officer and the recommendation of the Authorised Officer, there is no provision in the rules requiring these to be conveyed to the accused and the point raised in this behalf by the appellant does not merit any consideration.
12. Prom our own perusal of the case record we End that the proceedings against the officer were initiated on receipt of written com--plaint, addressed by the lady officer, then posted as Assistant Commis, stoner under training at Faisalabad to the then Prime-Minister, i.e her own handwriting do 5th August, 1915 in connection with the incident alleged to have taken place on 2nd July, 1975. It appears from the contents of this letter, and the testimony of the Deputy Commissioner, Faisalabad and the Commissioner Sargodha, that the lady had complained about the misconduct of the appellant on then very next morning after the incident and that, in view of the delicacy of the matter it was decided, at the level of the then Chief Minister, Punjab, that in order to protect the reputation and honour of the lady, the S. P the, appellant) be asked to tender his apology. It also appears that the lady was given assurance that suitable action would be taken, but, since nothing had been done in the matter, she had to approach the Prime Minister. It is also on record that the appellant, according to the complainant, instead of being repentant over the con--duct, was further scandalizing and indulging in vulgarities about the incident. Action on the letter addressed to the Prime Minister was, therefore, initiated by the then Establishment Secretary, who placed the officer under suspension, with the Prime Minister's approval, and issued a show-cause notice, whereafter action culminating in the first dismissal order was taken. Subsequently, after the second suspension order, pro--ceedings were conducted formally under rule 6 of the Government Servants (E&D) Rules, 1973, in the course of which the evidence of the complainant was clear and, unambiguous and in spite of very strenuous efforts on the part of the appellant, in the form of extremely savere cross---examination spreading over as many as 93 questions put to her, she remained unshaken and the appellant could not succeed in creating doubts as to the veracity of her testimony. At the same time, the appel--lant was not able to adduce any convincing evidence to establish his stand that he had been falsely implicated on the charge of misconduct just because the lady in question wanted to punish him for refusing to marry her. In this connection, it is significant that, during the course of the cross-examination of the complainant, the appellant did betray, that, according to him some occurrence of the kind alleged had taken place but that it was by mutual consent. On the basis of this and other relevant facts, the Establishment Division made an understatement in their summary for the President, when they observed that the behaviour of the Appellant, who was a senior officer of a disciplined force, was undignified and objectionable. Be that as it may, the record of the enquiry proceedings clearly shows that the case against the accused officer had been convincingly established. Therefore, we do not see any reason for holding that the punishment awarded to the appellant was not justified by the facts of the case.
13. In the light of the foregoing, we are satisfied that the reduced penalty of removal from service, in place of the original punishment of dismissal, should stand and need not be interfered with.
14. With the above observations, the appeal is dismissed.
15. No order as to costs.