Muhammad Mushtaq Jadoon, Member.--The appellant has filed this appeal against the impugned order dated 31.12.2020, whereby major penalty of dismissal from service was imposed upon the appellant under Punjab Police (E&D) Rules, 1975, and Punjab Police Rules, 1934 as adopted by the Islamabad Police. The appellant filed departmental appeal dated 14.01.2021, which has not been responded to, so far. Appellant filed this appeal on 28.04.2021 after lapse of mandatory period 120 days of departmental appeal. Appellant also filed MP No. 209/2021 on 28.04.2021 praying that the operation of impugned order dated 31.12.2020 be suspended till final disposal of this petition.
Record indicates that no suspension order was issued by this Court.
2. Appellant has stated that he joined service on 01.10.1991 and has more than 29 years of service.
He has unblemished record. He served under Fasihuddin, the then ASP, now Commandant Hangu Police Training School in KP, in Quetta. During this period he developed family relationship with Fasihuddin and in 2018 he asked the appellant to find land for him in Islamabad. He located 11 Kanal land in Shandarah Kalan, which was purchased by Mr. Fasihuddin PSP. Due to personal relationship Mr. Fasihuddin assigned development work to the appellant, who has been paying expenditure for the work but withheld his balance amount which he had spent from own pocket. He had been demanding outstanding amount from Mr. Fasihuddin but instead he started threatening him and using his Gunman Mr. Zulqarnan (HC) KP Police, who submitted complaint against the appellant to DIG (Operation) Islamabad. Application was marked to Iqbal Hussain Khan DSP/SDPO (Secretariat) who submitted his report on 16.3.2020 and concluded that it was a matter between Mr. Fasihuddin and Mr. Hanif Kamal (appellant) and appears to be a dispute of civil nature.
3. Matter was again referred to Mr. Rukhsar Mehdi, SDPO Sehala, by the respondents. During proceedings of inquiry as stated by the appellant, that he produced all relevant facts and Mr. Zulqarnain withdrew his complaint. On 23.10.2020, Mr. Fasihuddin, using his gunman Zulqarnain, submitted another complaint to Islamabad Police. Appellant also filed an application on 26.10.2020 to Respondent No. 3 (IG, Islamabad) and prayed for Call Data Record of Mr. Imtiaz and Mukhtiar Sis who were, then, under -training Police Officer and remained absent from training and harassed appellant to withdraw application against Fasihuddin PSP Commandant, Hangu Training School.
Appellant also filed a civil suit against Fasihuddin for recovery of his outstanding amount. As a consequence Respondent No. 3 issued a show cause notice on 10.12.2020 to appellant, received form Respondent No. 5 (SSP) Logistic Police Line Headquarters, Islamabad.
He responded to show cause notice but alleged that he was not provided access to official record and without an inquiry he was dismissed from service on 31.12.2021, on the basis of misconduct, inefficiency and negligence. Appellant filed departmental appeal on 14.01.2021 to Respondent No. 4 (DIG police (Logistic) Police line Islamabad) which was not responded to. Hence this appeal. The appellant prayed that impugned order dated 3I.O1.2020 may be set aside and he may be reinstated in service with effect from 31.12.2020, from the date of dismissal with all back benefits.
4. DR of Islamabad Police relied on parawise comments offered by Respondents 1,2,3,4 and 5. The respondents reported that the appellant, while posted at Police Line Headquarters, submitted an application and impleaded Senior Police Officer for dishonesty. Application was marked to Internal Accountability Unit. During proceedings of Inquiry appellant failed to prove his allegations levelled against senior police officer. These allegations proved baseless and thus the applicant was found guilty of violation of code of conduct as mentioned in Punjab Police Rules, 1934; Rule 14.7, 14.8, 14.25 & 14.33. He was issued proper show cause notice and based on his reply found guilty under Punjab Police Rules, 1934 and E&D Rules, 1975. He was called in to Orderly Room held in 21.12.2020 and heard in person by the competent authority. Since his reply and response was found unsatisfactory therefore awarded major penalty of dismissal from service, vide order dated 31.12.2020.
Respondents concluded and prayed for dismissal of appeal. DR on query from the Court could not provide further evidence or grounds and relied on parawise comments.
5. The learned counsel for the appellant pointed out malafide intentions of respondents. Appellant has not violated any rule and submitting an application to his seniors, against a senior police officer, does not constitute misconduct. The appellant has already filed a Civil Suit for recovery of his outstanding amount against Fasihuddin DSP, currently posted as Commandant Police Training School Hangu KPK. At the most the Islamabad Police could have rejected and returned the application as rightly pointed out by DSP Civil Secretariat Mr. Iqbal Khan that it was a private matter between appellant and Mr. Fasihuddin PSP. Besides award of major penalty of dismissal without inquiry is against the diction and principle as laid down in 2001 SCMR 1566, 2004 SCMR 294, 2007 SCMR 152, 2008 SCMR 1369; Respondents failed to respond to departmental appeal which they were bound to respond with a speaking order as per provisions of Civil Servant Act, 1973.
6. We have heard the argument and have perused the record.
7. The whole disciplinary proceedings against the appellant initiated as the appellant submitted an application against former ASP Islamabad Mr. Fashiuddin PSP, currently Commandant Hangu Police Training School KPK. One HC Zulqarnain Elite Force, Gunman of Fashihuddin, on 10.03.2020 submitted an application to DIG operation Islamabad and prayed that the appellant may be directed to settle the private account of Fashihuddin. This application was marked to DSP/Sectt for inquiry and report. DIG HQ while asking the DSP/Sectt for inquiry has not quoted any law or rule. It was a private matter of a senior policy officer and that a complaint was filed through a subordinate gunman as if it was a Police Department Project. DSP/SDPO vide report No. 1534 dated 16.03.2020 reported that the complainant Zulquarnain HC constable did not turn up, while the appellant recorded his statement. DSP/SDPO Civil Secretariat concluded that the complaint against appellant is baseless and may be filed. Instead the DIG HQ referred the inquiry to Mr. Rukhsar Mehdi, DSP Sehala. On 19.04.2020 complainant submitted an application to DSP Sehala.
That the dispute between appellant and Mr. Fasihuddin has been resolved and requested for withdrawal of his application. Mr. Zulqarnain HC on 23.10.2020 filed another application to DIG operation and repeated earlier allegations that the appellant has failed to fulfill the agreement signed between the parties, which included appellant, Work Contractor and Zulqarnain HC and Fasihuddin PSP. By all means the agreement, dated 05.03.2020 was a private matter, and the parties should have approached the civil Court, while the DIG HQ Islamabad took cognizance of a private matter between the parties and converted it into a departmental inquiry. Purported agreement available on record is not signed by the parties.
8. DSP/SDPO Sehala Rukhsar Mehdi submitted his inquiry report on 19.11.2020. DSP in his reputed stated that he has recorded statement of complaint Zulqurnain HC, KP Police and the appellant.
Appellant repeated his claim of outstanding amount of 16 lac rupees. DSP concluded that quality of work is poor but no final opinion can be given about the amount spent. DIG Fasihuddin should have engaged some technical person and the appellant should have demanded the expenditure in advance. Financial matter is between DIG and appellant ASI Hanif.
9. Award of contract, utilization of services of a serving ASI, agreement, between the parties, role and exercise of influence by DIG Fasihuddin, by virtue of his position, is not a subject matter before this Court but ancillary matter leading to issuance of show cause. Ideally on receipt of DSP Sehala, cited report, the DIG HQ Islamabad Police should have filed the application of applicant with the direction to both the parties to seek justice and resolve their dispute in a Court of law or go for criminal proceedings against each other. The gist of inquiry reports of, both, DSP Civil Secretariat and DSP Sehala is that it is a private financial dispute between the parties. Appellant submitted detail reply to DSP Sehala which has not been mentioned or considered in disciplinary proceedings.
10. Now we revert back to the impugned Show Cause Notice which is the real subject matter before this Court. In the impugned Show Cause Notice dated 10.12.2021 it was alleged that by filing application against senior officer and impleading him for dishonesty the appellant has violated Punjab Police Conduct Rules, 1934. Rule 14.7, 14.8, 14.25 and 14.33 and thus guilty of misconduct and inefficiency within the meaning of rule 3 of Punjab Police Rules, 1975 and thus liable to General Police Proceedings (without Enquiry Officer).
11. Show cause notice dated 10.12.2020 which indicates that the appellant made accountable for violation Police Rules, 1934 (Disciplined & Conduct) neither in the show cause notice nor in the impugned order it has been specified which rules are being applied. Rule 14.7, 14.8, 14.25 & 14.33 besides charge of misconduct, inefficiency within the meaning of Rule-3 of Punjab Police (E&D)
Rules, 1975 and award of the minor/major penalties as envisaged in the Rule-4 (a) & (b). The Authorized Officer clarified initiation of proceedings under General Police Procedure (without inquiry officer) under Rule-6(3)(ii)(a) & (b) of E & D Rules, 1975. The appellant responded to show notice explaining back ground of his application and complaint lodged by one H.C. Zulqurnain who is gunman of Fasihuddin, PSP. On receipt of reply to show cause notice impugned order dated 31.12.2020 was issued making the appellant accountable under Police Rules 14.7, 14.8, 14.25 & 14.33.
He was called in the Orderly Room on 31.12.2020, heard in person and the same date impugned order finding the appellant guilty of misconduct and negligence. Major penalty of dismissal from service was imposed by SSP Logistic, Islamabad. The appellant preferred the departmental appeal on 14.01.2021 which was not responded to and hence this appeal.
12. The appellant was proceeded against under Rule-6(b) of General Police Proceedings. As per Rule-6(3) the Authority shall determine whether in the light of fact of the case or in the interest of justice a departmental inquiry is necessary. If, in the opinion of Authority it is not necessary to hold a regular inquiry then show cause notice shall be issued and the accused shall be informed about the action proposed and ground of the action.
13. In response to Show Cause Notice appellant submitted detail reply and rebutted all the allegations levelled by complainant HC Zulqurnain and prayed that he submitted a petition to his seniors for assistance for recovery of his outstanding amount. Respondent No. 5 Mr. Iran Tariq SSP Logistics passed impugned order dated 31.12.2021 concluding that the reply of appellant was found unsatisfactory and held guilty of misconduct as per rule 14.7, 14.8, 14.25 and 14.33. Appellant was charged for misconduct and inefficiency and vide order dated 31.12.2021, by imposing major penalty, was dismissed from service. Misconduct has been defined vide Section 2(iii) of Punjab Police (E&D) Rules 1975. The main ingredient of constituting an offence of "Misconduct" are: an act pre-judicial to good order of discipline; contrary to government service rules; conduct un-becoming of a Police Officer; commission or omission which violates law, rules and Regulations; bring or attempts to bring outside influence in regard to posting, transfer, punishment or other conditions of service.
14. In case of General Police Proceedings the authorized officer under Rule 6(1) shall determine the facts of the case, and in the interest of justice, propose action with grounds shall be conveyed to the accused. It is true that the Authorized Officer may dispense with the inquiry and instead opt for show cause. But it is not peculiar to Punjab E&D Rules 1975, as adopted by Islamabad Police as the similar provisions exist in E&D Rules 1973 for the Civil Servants. Still in the interest of justice the Hon'ble Supreme Court held in 2004 PLC (CS) 992, 2009 SCMR 329, 2009 PLC (CS) 19 that for major penalty regular inquiry is essential. In the instant case the complaint against the appellant was marked to DSP Civil Secretariat Mr. Iqbal Khan who submitted his report, and concluded that it is a private matter between the appellant and Mr Faseh uddin, on whose behalf his gunman HC Zulqarnain was pursuing the case. Malafide of respondents is apparent from the fact that instead of acting on the report of DSP Civil Secretariat, and filing the case, another fact-finding inquiry was initiated. This time it was marked to SDSO Sehala. DSP Rukhsar Mehdi. He paid visit to the Farm House of Mr Fasih uddin and his report indicates that the work, carried out under the supervision of appellant is of low quality. He has also opined that Mr Fasih uddin should have engaged an engineer instead of appellant. He further opinioned that the appellant should have stopped the work instead of overspending, for which the appellant sought help of his superior officers of Islamabad Police. The whole episode indicates the naked use of power and mockery of law.
Whether the application of appellant for recovery of his outstanding amount has brought bad, name to police repute or not is debatable but the way Islamabad Police higher ups swung into action against a low rank police official, showing unique "Camaraderie" with their senior colleague.
DSP Sehala inspected a private farm house, owned by a senior police officer, as if it was a Police Department Project. Ideally the appellant should have been punished for doing private job instead of prosecuting him for omission. No-where in the show cause and the impugned order evidence has been adduced to prove misconduct and inefficiency of appellant while performing duties as an official of Islamabad police. In the show cause and the impugned order the main thrust of allegation is impeachment of senior police officer. It is not clear in what context the word "Impeaching" has been used as an allegation against the appellant. Broad Legal definition of impeachment is to charge a public servant for crime or misconduct before a Competent Authority or Tribunal. In this case Respondent No. 3, 4 & 5 were not competent to investigate the allegations levelled by the appellant against Fasihuddin a PSP Officer of DIG Rank who was, otherwise not under the administrative control of Islamabad Police. At best the complaint, as recommended by DSP Civil Secretariat should have been; (a) filed (b) appellant should have been advised to approach a competent authority or Court (c) forwarded the complaint to Establishment Division. It is not clear under which provisions of Punjab Police E&D Rules, 1975 and Rule, 1934 the Islamabad Police Inquired into a private matter between the parties other than criminal proceedings and lodging an FIR against one of the party or both. A unique fact finding inquiry indeed in which M.
Zulqarnain H.C. proxy for (Mr Fasihuddin PSP) complained against the appellant, appeared in the proceedings and also lodged a complaint on behalf of his boss. There is nothing on record to prove that reply, and clarification of appellant, in response to show cause notice were even discussed in the impugned order. As a matter of fact each and every point raised by the appellant should have been considered and rejected or accepted with some logic. Merely using the phrase "the appellant has failed to prove his allegations" is not sufficient and hardly justify imposition of major penalty of dismissal from service. Such incidents also indicate moral decay, norms of service and violation of merit which only prompt the lower ranks to ingratiate themselves with the higher up. A civil servant should only concentrate and focus on his public service, which would pay in the long-run, temporary set-backs, notwithstanding. And it is a classic case that any one stepping out of his social and official status and unwarranted attendance of "Royal Court" and halls of power shall meet the ignoring as warned by Imam Ghazali.
15. Malafide, and apathy of respondents is self-evident from the fact that no decision on departmental appeal of appellant was made. An employee dismissed from police service of 29 years deserves to be responded, both, with a speaking order of acceptance or rejection of departmental appeal. Now a brief discussion of Punjab Police Discipline and Conduct Rules, 1934 (Chapter 4) as mentioned in the show cause notice and impugned order dated 31.12.2020. Extract from relevant rules; Rule 14.7: Comments on remarks of superior officer.
A Police Officer shall not comment on the remarks made by a superior police officer; Rule 14.8: Unsubstantiated complaint: A subordinate officer making complaints against superior officer, which he cannot substantiate or prove shall be severely dealt with.
Rule 14.26: Regarding pecuniary transactions.
(1) Police officer are forbidden to have transactions of any kind with accountants in Police Officers;
(2) No police officer shall borrow money from, or become indebted either directly or indirectly to any other police officer or to any agent, department, relations or surely of any police officer;
(3) No Police Officer shall lend money to any other police officer;
(4) Police Officer shall report to their immediate superiors any case of insolvency or helplessness, in debtness among their subordinates.
Rule 14.33: Police Officers not to take up any other employment.
Section 10 of Act V of 1861 forbids a Police Officer from taking any employment whatsoever other than his duties, save with express and written permission of Inspector General. The restrictions imposed by Section 10 are binding on police officer through-out his service whether on leave or duty.
While filing a petition to his superiors the appellant has acted in accordance with Rule 14.25(4).
16. It is abundantly clear that none of the provisions of cited rules, made part of show cause notice and impugned order are attracted in the case of appellant, except partly Section 14.33 as the appellant indulged in an activity other than his official duties. Unfortunately he has not been punished for undertaking an activity in violation of Rule 14.33 but not doing it properly and to the "Satisfaction" of a senior officer who was not in official hierarchy of appellant.
17. In view of reasons cited in the aforementioned paragraphs the impugned order dated 31.12.2020, whereby major penalty of dismissal from service was imposed, is modified as under:- a) Major penalty, imposed vide impugned order dated 31.12.2020 is converted into minor penalty of stoppage of three increments for three years without cumulative effect. b) Appellant is reinstated into service w.e.f. the date of his dismissal; c) Period of dismissal w.e.f. 31.12.2020 to date of appellant joining shall be treated as leave of kind due.
18. No order as to cost. Parties be informed.